Cochrane and Another v Bezuidenhout and Another (A673/2015) [2016] ZAGPPHC 1207 (7 December 2016)

Cochrane and Another v Bezuidenhout and Another (A673/2015) [2016] ZAGPPHC 1207 (7 December 2016)

The court found that the trial court erred in holding that the obligations to construct the service road and boundary wall rested with the home owners association, when in fact the obligation to provide and construct these facilities was that of the defendant. Although the plaintiffs did not purchase the wall or road, the tacit term contended for could be imported into the sale agreements, as the background facts and circumstances supported the bystander test. The evidence presented by the plaintiffs was sufficient for a court, applying its mind reasonably, to find for the plaintiffs at the close of their case. Therefore, absolution from the instance was incorrectly granted, and the...

Citation
[2016] ZAGPPHC 1207
Parties
Appellant: M F Cochrane; Appellant: N E S Cochrane; Respondent: KP Bezuidenhout; Respondent: City of Tshwane Metropolitan Municipality
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
7 December 2016
Case Number
A673/2015
Procedural Posture
Civil Appeal / Appeal From Trial Court's Grant of Absolution From the Instance at Close of Plaintiffs' Case
Outcome
Appeal upheld. Order of absolution from the instance set aside. Defendant's application for absolution dismissed with costs.
Judges
J W Louw, L M Molopa-Sethosa, PM Mabuse
Legal Topics
Absolution From the Instance, Tacit Terms, Sale of Land, Construction Standards, Contract Interpretation
Civil Procedure Land and Property Absolution From the Instance Tacit Terms Sale of Land Construction Standards Contract Interpretation

Case Brief

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Parties

M F Cochrane

Appellant

N E S Cochrane

Appellant

KP Bezuidenhout

Respondent

City of Tshwane Metropolitan Municipality

Respondent

Procedural Posture

Civil Appeal / Appeal From Trial Court's Grant of Absolution From the Instance at Close of Plaintiffs' Case

Legal Issues

  1. 1 Whether the sale agreements contained a tacit term requiring the defendant to construct the service road and boundary wall in a proper workmanlike manner and according to proper engineering standards.
  2. 2 Whether absolution from the instance was correctly granted at the close of the plaintiffs' case.
  3. 3 Whether the obligations to construct and maintain the service road and boundary wall rested with the defendant or the home owners association.

Ratio Decidendi

The court found that the trial court erred in holding that the obligations to construct the service road and boundary wall rested with the home owners association, when in fact the obligation to provide and construct these facilities was that of the defendant. Although the plaintiffs did not purchase the wall or road, the tacit term contended for could be imported into the sale agreements, as the background facts and circumstances supported the bystander test. The evidence presented by the plaintiffs was sufficient for a court, applying its mind reasonably, to find for the plaintiffs at the close of their case. Therefore, absolution from the instance was incorrectly granted, and the...

Court Disposition

Appeal upheld. Order of absolution from the instance set aside. Defendant's application for absolution dismissed with costs.

Orders

  • The appeal is upheld with costs, including costs of the application for leave to appeal in the Supreme Court of Appeal and the court a quo.
  • The order of the court a quo is set aside and replaced with an order dismissing the defendant's application for absolution from the instance with costs.