Cool Ideas 1186 CC v Hubbard and Another (CCT 99/13) [2014] ZACC 16; 2014 (4) SA 474 (CC); 2014 (8) BCLR 869 (CC) (5 June 2014)

CONSTITUTIONAL

COURT OF SOUTH AFRICA

Case CCT 99/13

In the matter between:

COOL IDEAS 1186 CC............................................................................................................Applicant

and

ANNE

CHRISTINE HUBBARD..................................................................................First Respondent

MINISTER OF JUSTICE AND

CONSTITUTIONAL DEVELOPMENT.................................................................Second Respondent

Neutral citation: Cool Ideas 1186 CC v Hubbard and Another [2014] ZACC 16

Coram: Moseneke ACJ, Skweyiya ADCJ, Cameron J, Dambuza AJ, Froneman J, Jafta J, Khampepe J, Madlanga J, Majiedt AJ, Van der Westhuizen J and Zondo J

Heard on: 5 February 2014

Decided on: 5 June 2014

Summary: Housing Consumers Protection Measures Act 95 of 1998 – section 10(1) – requires registration of home builder to receive consideration for work done – no infringement of unregistered home builder’s rights to property and to access to courts

Application to have arbitration award made an order of court – statutory prohibition precluding court from making arbitral award an order of court – would amount to a court sanctioning an illegality

ORDER

On appeal from the Supreme Court of Appeal (hearing an appeal from the South Gauteng High Court, Johannesburg):

1. The applications for condonation are granted.

2. The application for leave to appeal is granted.

3. The appeal is dismissed with costs, including the costs of two counsel.

JUDGMENT

MAJIEDT AJ (Moseneke ACJ, Skweyiya ADCJ, Khampepe J and Madlanga J concurring):

Introduction

[1] In most instances a home is the most valuable asset in a person’s estate. The Legislature sought to protect housing consumers by enacting the Housing Consumers Protection Measures Act[1] (Housing Protection Act). This matter concerns the interpretation of section 10(1)(b) of the Act. Related thereto, it questions whether that provision infringes Cool Ideas’ right not to be arbitrarily deprived of property in terms of section 25 of the Constitution and its right to have access to courts in terms of section 34 of the Constitution. I must at the outset record that no relief was sought either in the courts below or in this Court to have the section struck down as constitutionally invalid.

[2] The applicant, Cool Ideas 1186 CC (Cool Ideas), a duly registered close corporation primarily engaged in property development, seeks leave to appeal against a judgment of the Supreme Court of Appeal. The majority in that Court upheld an appeal against a judgment of the South Gauteng High Court, Johannesburg (High Court) which granted Cool Ideas’ application to have an arbitration award in its favour against the first respondent, Ms Anne Christine Hubbard, a home owner, made an order of court in terms of section 31 of the Arbitration Act.[2] The second respondent is the Minister of Justice and Constitutional Development (Minister), cited because the relief sought might

implicate the constitutionality of legislation. The Minister took no part in the proceedings in the High Court, the Supreme Court of Appeal or in this Court.

Condonation

[3] Cool Ideas applies for condonation of the late filing of its application for leave to appeal in this Court as well as for the late lodging of its summary of substantial facts. There was opposition only to the first application, but this was abandoned at the hearing.

[4] The explanation proffered for the failure to comply with the time limits is satisfactory and no prejudice has ensued. It is consequently in the interests of justice to grant both applications.

Background

[5] On 13 February 2006 Cool Ideas and Ms Hubbard entered into a building contract. Cool Ideas undertook to construct a residence for Ms Hubbard for consideration of R2 695 600.[3] Cool Ideas enlisted the services of Velvori Construction CC (Velvori) to execute the building project. At the time that it entered into the building contract, Cool Ideas was not registered as a home builder in terms of section 10 of the Housing Protection Act. However, Velvori was duly registered as a home builder with the capacity to undertake the construction of a home. The building project was also enrolled by Velvori as required by section 14[4] of the Housing Protection Act.

[6] The project commenced, payments were made and received and the building works achieved practical completion in October 2008. Ms Hubbard then raised certain issues regarding the quality of elements of the building works, refused to make the final payment due on the building project and claimed payment of R1 200 000 as the cost of remedial work. Ms Hubbard invoked the arbitration clause contained in the building contract and initiated arbitration proceedings to seek payment for contractual damages from Cool Ideas.

[7] On 12 February 2010 the parties agreed to the appointment of an arbitrator, Mr Charles Cook, an architect, to determine the dispute. Ms Hubbard claimed compensation on the basis of defective workmanship, relocation costs, penalties and certain compliance-type certificates. Cool Ideas counterclaimed for the portion of the contract sum which remained outstanding, namely an amount of approximately R550 000. The arbitration agreement, among other things, recorded that:

“The arbitration will be held in terms of the Arbitration Act 42 of 1965. The arbitrator’s award shall be final and binding. There shall be no appeal against the arbitrator’s award”.

[8] The arbitration proceedings culminated on 15 April 2010 in an award in favour of Cool Ideas. The relevant part of the award reads that “[Ms Hubbard] is to pay the Respondent [Cool Ideas] the sum of R550 211 inclusive of VAT”.[5]

[9] Ms Hubbard failed to satisfy the arbitration award. On 16 November 2010 she wrote to Cool Ideas contending that it was not entitled to claim remuneration under the building contract because it was not registered as a home builder in terms of the Housing Protection Act. She contended that Cool Ideas was not entitled to apply to have the award of the arbitrator made an order of court, since it would receive remuneration in direct conflict with the provisions of the Housing Protection Act.

[10] Cool Ideas was of the view that it was not necessary to register as a home builder in terms of the Housing Protection Act because that Act required both the enrolment of a building project that was subject to its provisions and the registration of a home builder. Cool Ideas contended that, in doing so, it distinguishes between two categories of home builders. The first is where the home builder has the capacity to undertake the physical construction of the home, as did Velvori. The second is where the home builder does not have this capacity and has to appoint a subcontractor. Cool Ideas argued that it falls into this latter category. It also averred that, upon enquiry to the National Home Builders’ Registration Council (NHBRC), Cool Ideas was informed that it was not necessary for it to register as a home builder before commencing construction.

[11] Subsequently, Cool Ideas applied to the High Court to make the arbitral award an order of court in terms of section 31[6] of the Arbitration Act.

[1] 95 of 1998.

[2] 42 of 1965.

[3] Cool Ideas subdivided a piece of land to which it had obtained rights and sold a portion of it to Ms Hubbard.

[4] Section 14 reads:

“(1) A home builder shall not commence the construction of a home falling within any category of home that may be prescribed by the Minister for the purposes of this section unless—

(a) the home builder has submitted the prescribed documents, information and fee to the Council in the prescribed manner;

(b) the Council has accepted the submission contemplated in paragraph (a) and has entered it in the records of the Council; and

(c) the Council has issued a certificate of proof of enrolment in the prescribed form and manner to the home builder.”

[5] The terms of the order, in relevant part, are:

“32.2. Interest to be paid by the Claimant on R1 101 333.36 from 7 November 2007 to the date of payment at the rate of 2% greater than the minimum lending rate charged by the Claimant’s bank to its client, compounded monthly, the start date being 7 November 2007;

32.3. Costs are awarded in favour of the Respondent;

. . .

32.5. Any amounts due and remaining unpaid by the due date as set out in paragraph 32.2 herein shall accrue interest as for a judgment date at the rate of 15.5% per annum compounded monthly from the date due for payment.”

[6] “Award may be made an order of Court––

(1) an award may, on application to the court of competent jurisdiction by any party to the reference after due notice to the other party or parties, be made an order of court.

(2) the court to which the application is so made, may, before making the award an order of the court, correct in the award any clerical mistake or any patent error arising from any accidental slip or omission.

(3) an award which has been made an order of court may be enforced in the same manner as any judgment or order to the same effect.”

[7] “The Council may, in addition to any other category that the Council may deem appropriate, in the registration of home builders distinguish between––

(a) home builders themselves having the capacity to undertake the physical construction of homes or to manage the process of the physical construction of homes; and

(b) home builders who in the normal course need to enter into agreements with other home builders in order to procure the capacity referred to in paragraph (a).”

[8] South African Forestry Co Ltd v York Timbers Ltd 2001 (4) SA 884 (T).

[9] Lufuno Mphaphuli & Associates (Pty) Ltd v Andrews and Another [2009] ZACC 6; 2009 (4) SA 529 (CC); 2009 (6) BCLR 527 (CC) (Lufuno Mphaphuli).

[10] Hubbard v Cool Ideas 1186 CC [2013] ZASCA 71; 2013 (5) SA 112 (SCA) (Supreme Court of Appeal judgment).

[11] Section 21 reads:

“(1) Any person who––

(a) knowingly withholds information required in terms of this Act or furnishes information that he or she knows to be false or

misleading; or

(b) contravenes a provision of section 10(1) or (2), 13(7), 14(1) or (2), 18(1) or 19(5),

and every director, trustee, managing member or officer of a home builder who knowingly permits such contravention, shall be guilty of an offence and liable on conviction to a fine not exceeding R25 000, or to imprisonment for a period not exceeding one year, on each charge.

(2) Notwithstanding anything to the contrary in any other Act, a magistrate’s court shall have jurisdiction to impose any

penalty prescribed by this Act.”

[12] 72 of 2012.

[13] Section 167(3)(b)(ii) in its amended form now reads as follows:

“The Constitutional Court . . . may decide . . . any other matter, if the Constitutional Court grants leave to appeal on the grounds that the matter raises an arguable point of law of general public importance which ought to be considered by the Court”.

[14] Section 25(1) read as follows:

“No one may be deprived of property except in terms of law of general application, and no law may permit arbitrary deprivation of property.”

[15] Section 34 reads:

“Everyone has the right to have any dispute that can be resolved by the application of law decided in a fair public hearing before a court or where appropriate, another independent and impartial tribunal or forum.”

[16] Ferris and Another v Firstrand Bank Limited and Another [2013] ZACC 46; 2014 (3) SA 39 (CC); 2014 (3) BCLR 321 (CC) at para 8.

[17] The provisions of section 10(1) are set out in [12] above.

[18] See

SATAWU and Another v Garvas and Others [2012] ZACC 13; 2013 (1) SA 83 (CC); 2012 (8) BCLR 840 (CC) (Garvas) at para 37; S v Zuma and Others [1995] ZACC 1; 1995 (2) SA 642 (CC); 1995 (4) BCLR 401 (CC) (S v Zuma) at paras 13-4; and Dadoo Ltd and Others v Krugersdorp Municipal Council 1920 AD 530 at 543.

[19] Dengetenge Holdings (Pty) Ltd v Southern Sphere Mining and Development Company Ltd and Others [2013] ZACC 48; 2014 (3) BCLR 265 (CC) at paras 84-6 and Department of Land Affairs and Others v Goedgelegen Tropical Fruits (Pty) Ltd [2007] ZACC 12; 2007 (6) SA 199 (CC); 2007 (10) BCLR 1027 (CC) at para 5.

[20] North East Finance (Pty) Ltd v Standard Bank of South Africa Ltd [2013] ZASCA 76; 2013 (5) SA 1 (SCA) at para 24; KPMG Chartered Accountants (SA) v Securefin Ltd and Another [2009] ZASCA 7; 2009 (4) SA 399 (SCA) at para 39; and Bhana v Dőnges NO and Another 1950 (4) SA 653 (A) at 664E-H.

[21] Garvas above n 18 at para 37.

[22] The preamble to the Housing Protection Act states:

“To make provision for the protection of housing consumers; and to provide for the establishment and functions of the National Home Builders Registration Council; and to provide for matters connected therewith.”

[23] Section 3(b).

[24] Section 13(1) and (2).

[25] Section 13(7)(a).

[26] See above [12].

[27] See above [21].

[28] See above n 14.

[29] Joubert et al (eds) LAWSA (reissue) vol 9 at para 209(d) and the cases cited there.

[30] National Credit Regulator v Opperman and Others [2012] ZACC 29; 2013 (2) SA 1 (CC); 2013 (2) BCLR 170 (CC) (Opperman) at para 63.

[31] First National Bank of SA Ltd t/a Wesbank v Commissioner, South African Revenue Services and Another; First National Bank of SA Ltd t/a Wesbank v Minister of Finance [2002] ZACC 5; 2002 (4) SA 768 (CC); 2002 (7) BCLR 702 (CC) (FNB v CSARS).

[32] Id at para 100.

[33] Id.

[34] Opperman above n 30 at paras 68-72.

[35] See Reflect-All 1025 CC and Others v MEC for Public Transport, Roads and Works, Gauteng Provincial Government, and Another [2009] ZACC 24; 2009 (6) SA 391 (CC); 2010 (1) BCLR 61 (CC) at para 49.

[36] Clause 14.1 of the building contract reads:

“Any dispute arising between the parties out of and during the currency of the contract or upon termination thereof may be referred to arbitration.”

[37] As appears from paragraph 4 of the arbitral award which reads:

“The terms and conditions of my appointment as Arbitrator were set down in a document headed Arbitration Agreement dated 3rd April 2009 reference CDC/va/1459 (the Arbitration Agreement) and ultimately agreed to and signed by the parties”.

[38] Cool Ideas only registered as a home builder in terms of the Housing Protection Act after it applied to the High Court to have the arbitral award confirmed as an order of court.

[39] See in this regard Harbour Assurance Co (UK) Ltd v Kansa General International Assurance Co Ltd and Others [1993] 3 ALL E.R. 897 where the Court, in upholding an appeal in which it determined whether an arbitration clause is a separate and autonomous contract, held that, “as a matter of practice, the principle [of severability of an arbitration clause from the principle agreement which contains it] has been sustained by the terms and implications of arbitration conventions and rules”. (Parenthesis in original.) See also David Taylor & Son v Barnett Trading Co [1953] 1 ALL E.R. 843.

[40] See above [29].

[41] “A home builder shall ensure that the agreement concluded between the home builder and a housing consumer for the construction or sale of a home by that home builder––

(a) shall be in writing and signed by the parties;

(b) shall set out all material terms, including the financial obligations of the housing consumer; and

(c) shall have attached to the written agreement as annexures, the specifications pertaining to materials to be used in construction of the home and the plans reflecting the dimensions and measurements of the home, as approved by the local government body: Provided that provision may be made for amendments to the plans as required by the local government body.”

[42] “The agreement between a home builder and a housing consumer for the construction or sale of a home shall be deemed to include warranties enforceable by the housing consumer against the home builder in any court that––

(a) the home, depending on whether it has been constructed or is to be constructed––

(i) is or shall be constructed in a workmanlike manner;

(ii) is or shall be fit for habitation; and

(iii) is or shall be constructed in accordance with––

(aa) the NHBRC Technical Requirements to the extent applicable to the home at the date of enrolment of the home with the Council; and

(bb) the terms, plans and specifications of the agreement concluded with the housing consumer as contemplated in subsection (1)”.

[43] Section 13(6) reads:

“Any provision in an agreement contemplated in subsection (1) that excludes or waives any provision of this section shall be null and void.”

[44] See [96] of the judgment of Jafta J.

[45] See [73] of the judgment of Jafta J.

[46] At [72].

[47] S v Zuma above n 18 at para 18.

[48] Schierhout v Minister of Justice 1926 AD 99 at 109. See also Hoisain v Town Clerk, Wynberg 1916 AD 236.

[49] See above n 6.

[50] Lufuno Mphaphuli above n 9 at para 235.

[51] Id at para 236.

[52] Sections 1(c) and 165(2).

[53] Above n 9.

[54] Reference was made in this regard to Christie “Arbitration: Party Autonomy or Curial Intervention: The Historical Background”

1994 SALJ 143.

[55] Voet 4.8.24.

[56] 40 of 1977. Section 4(1)(a)(ii) reads: “A court may refuse to grant an application for an order of court in terms of section 3 if the court finds that . . . enforcement of the award concerned would be contrary to public policy in the Republic”.

[56] 40 of 1977. Section 4(1)(a)(ii) reads:

“A court may refuse to grant an application for an order of court in terms of section 3 if the court finds that . . . enforcement of the award concerned would be contrary to public policy in the Republic”.

[57] 1985. Article 36(1)(b)(ii) provides: “Recognition or enforcement of an arbitral award, irrespective of the country in which it was made, may be refused only if the court finds that . . . the recognition or enforcement of the award would be contrary to the public policy of this State.”

[57] 1985. Article 36(1)(b)(ii) provides:

“Recognition or enforcement of an arbitral award, irrespective of the country in which it was made, may be refused only if the court finds that . . . the recognition or enforcement of the award would be contrary to the public policy of this State.”

[58] Butler and Finsen Arbitration in South Africa: Law and Practice (Juta & Co Ltd, Cape Town 1993) at 263.

[59] This application was instituted in terms of section 31 of the Arbitration Act.

[61] Section 10 of the Housing Protection Act, in relevant part, provides: “(6) The Council may, in addition to any other category that the Council may deem appropriate, in the registration of home builders

distinguish between— (a) home builders themselves having the capacity to undertake the physical construction of homes or to manage the process of the physical construction of homes; and (b) home builders who in the normal course need to enter into agreements with other home builders in order to procure the capacity referred to in paragraph (a). (7) A home builder registered in terms of subsection (6)(b) shall be obliged, for the purposes of the physical construction of homes, to appoint a home builder registered in terms of subsection (6)(a).”

[61] Section 10 of the Housing Protection Act, in relevant part, provides:

“(6) The Council may, in addition to any other category that the Council may deem appropriate, in the registration of home builders

distinguish between—

(b) home builders who in the normal course need to enter into agreements with other home builders in order to procure the capacity referred to in paragraph (a).

(7) A home builder registered in terms of subsection (6)(b) shall be obliged, for the purposes of the physical construction of homes, to appoint a home builder registered in terms of subsection (6)(a).”

[62] Section 1(i) of the Housing Protection Act.

[63] Section 21(1) provides: “Any person who— (a) knowingly withholds information required in terms of this Act or furnishes information that he or she knows to be false or misleading; or (b) contravenes section 10(1) or (2), 13(7), 14(1) or (2), 18(1) or (2) or 19(5), and every director, trustee, managing member or officer of a home builder who knowingly permits such contravention, shall be guilty of an offence and liable on conviction to a fine not exceeding R25 000, or to imprisonment for a period not exceeding one year, on each charge.”

[63] Section 21(1) provides:

“Any person who—

(a) knowingly withholds information required in terms of this Act or furnishes information that he or she knows to be false or misleading; or

(b) contravenes section 10(1) or (2), 13(7), 14(1) or (2), 18(1) or (2) or 19(5),

and every director, trustee, managing member or officer of a home builder who knowingly permits such contravention, shall be guilty of an offence and liable on conviction to a fine not exceeding R25 000, or to imprisonment for a period not exceeding one year, on each charge.”

[64] Schierhout above n 48 at 109.

[65] Maharaj and Others v Rampersad 1964 (4) SA 638 (A) and Messenger of the Magistrates’ Court, Durban v Pillay 1952 (3) SA 678 (A).

[66] Lupacchini NO and Another v Minister of Safety and Security [2010] ZASCA 108; 2010 (6) SA 457 (SCA) (Lupacchini).

[67] Id at para 22.

[68] Supreme Court of Appeal judgment above n 10 at para 11.

[69] Id at para 6.

[70] Pottie v Kotze 1954 (3) SA 719 (A) at 726H-727A.

[71] Section 165(2) of the Constitution provides: “The courts are independent and subject only to the Constitution and the law, which they must apply impartially and without fear, favour or prejudice.”

[71] Section 165(2) of the Constitution provides:

“The courts are independent and subject only to the Constitution and the law, which they must apply impartially and without fear, favour or prejudice.”

[72] Taljaard v TL Botha Properties [2008] ZASCA 38; 2008 (6) SA 207 (SCA).

[73] 112 of 1976.

[74] Noragent (Edms) Bpk v De Wet 1985 (1) SA 267 (T) at 271I-272D.

[75] Schierhout above n 48.

[76] Above n 70.

[77] Above n 66.

[78] Standard Bank v Estate Van Rhyn 1925 AD 266.

[79] Metro Western Cape (Pty) Ltd v Ross 1986 (3) SA 181 (A) (Metro Western Cape) at 188A-B.

[80] Id at 188F-G and Pottie above n 70 at 727H.

[81] Main judgment at [48].

[82] Section 13(1) and (2) provides: “(1) A home builder shall ensure that the agreement concluded between the home builder and a housing consumer for the construction or sale of a home by that home builder— (a) shall be in writing and signed by the parties; (b) shall set out all material terms, including the financial obligations of the housing consumer; and (c) shall have attached to the written agreement as annexures, the specifications pertaining to materials to be used in construction of the home and the plans reflecting the dimensions and measurements of the home, as approved by the local government body: Provided that provision may be made for amendments to the plans as required by the local government body. (2) The agreement between a home builder and a housing consumer for the construction or sale of a home shall be deemed to include warranties enforceable by the housing consumer against the home builder in any court, that— (a) the home, depending on whether it has been constructed or is to be constructed— (i) is or shall be constructed in a workmanlike manner; (ii) is or shall be fit for habitation; and (iii) is or shall be constructed in accordance with— (aa) the NHBRC Technical Requirements to the extent applicable to the home at the date of enrolment of the home with the Council; and (bb) the terms, plans and specifications of the agreement concluded with the

housing consumer as contemplated in subsection (1); (b) the home builder shall— (i) subject to the limitations and exclusions that may be prescribed by the Minister, at the cost of the home builder and upon demand by the housing consumer, rectify major structural defects in the home caused by the non-compliance with the NHBRC Technical Requirements and occurring within a period which shall be set out in the agreement and which shall not be less than five years as from the occupation date, and notified to the home builder by the housing consumer within that period; (ii) rectify non-compliance with or deviation from the terms, plans and specifications of the agreement or any deficiency related to design, workmanship or material notified to the home builder by the housing consumer within a period which shall be set out in the agreement and which shall not be less than three months as from the occupation; and (iii) repair roof leaks attributable to workmanship, design or materials occurring and notified to the home builder by the housing consumer within a period which shall be set out in the agreement and which shall not be less than 12 months as from the occupation date.”

[82] Section 13(1) and (2) provides:

“(1) A home builder shall ensure that the agreement concluded between the home builder and a housing consumer for the construction or sale of a home by that home builder—

(c) shall have attached to the written agreement as annexures, the specifications pertaining to materials to be used in construction of the home and the plans reflecting the dimensions and measurements of the home, as approved by the local government body: Provided that provision may be made for amendments to the plans as required by the local government body.

(2) The agreement between a home builder and a housing consumer for the construction or sale of a home shall be deemed to include warranties enforceable by the housing consumer against the home builder in any court, that—

(a) the home, depending on whether it has been constructed or is to be constructed—

(i) is or shall be constructed in a workmanlike manner;

(ii) is or shall be fit for habitation; and

(iii) is or shall be constructed in accordance with—

(bb) the terms, plans and specifications of the agreement concluded with the housing consumer as contemplated in subsection (1);

(b) the home builder shall—

(i) subject to the limitations and exclusions that may be prescribed by the Minister, at the cost of the home builder and upon demand by the housing consumer, rectify major structural defects in the home caused by the non-compliance with the NHBRC Technical Requirements and occurring within a period which shall be set out in the agreement and which shall not be less than five years as from the occupation date, and notified to the home builder by the housing consumer within that period;

(ii) rectify non-compliance with or deviation from the terms, plans and specifications of the agreement or any deficiency related to design, workmanship or material notified to the home builder by the housing consumer within a period which shall be set out in the agreement and which shall not be less than three months as from the occupation; and

(iii) repair roof leaks attributable to workmanship, design or materials occurring and notified to the home builder by the housing consumer within a period which shall be set out in the agreement and which shall not be less than 12 months as from the occupation date.”

[83] Main judgment at [47].

[84]

CUSA v Tao Ying Metal Industries and Others [2008] ZACC 15; 2009 (2) SA 204 (CC); 2009 (1) BCLR 1 (CC) and Matatiele Municipality and Others v President of the RSA and Others [2006] ZACC 2; 2006 (5) SA 47 (CC); 2006 (5) BCLR 622 (CC).

[85] Main judgment at [45].

[86] See [53]-[62] of the main judgment.

[87] At [52].

[88] Lufuno Mphaphuli above n 9 at para 218.

[89] See [62] of the main judgment.

[90] Lufuno Mphaphuli above n 9 at paras 219-23.

[91] Id at para 220.

[92] Id at para 221.

[93] Id at paras 224-36.

[94] Id at para 235. Although the reference is to section 33 of the Arbitration Act 42 of 1965 it is clear that O’Regan ADCJ regarded with approval the “pleasing symmetry” of the same standards for refusing to make an award an order of court as for setting aside the award. See paras 227 and 232.

[95] Id at para 216.

[96] Id at para 219.

[97] Barkhuizen v Napier [2007] ZACC 5; 2007 (5) SA 323 (CC); 2007 (7) BCLR 691 (CC) at para 73.

[98] Lufuno Mphaphuli above n 9 at para 221.

[99] 95 of 1998.

[100] See above [127].

[101] Compare Lufuno Mphaphuli above n 9 at para 220 and North East Finance (Pty) Ltd v Standard Bank of South Africa [2013] ZASCA 76; 2013 (5) SA 1 (SCA) at paras 18-23.

[102] See [104] of the concurring judgment.

[103] Section 25 of the Constitution.

[104] Lufuno Mphaphuli above n 9 at para 223.

[105] Id at paras 237-8.

[106] Id at para 197.

[107] Id.

[108] Id at para 235.

[109] See [58]-[59] of the main judgment.

[110] Section 34 of the Constitution provides: “Everyone has the right to have any dispute that can be resolved by the application of law decided in a fair public hearing before a court or, where appropriate, another independent and impartial tribunal or forum.”

[110] Section 34 of the Constitution provides:

“Everyone has the right to have any dispute that can be resolved by the application of law decided in a fair public hearing before a court or, where appropriate, another independent and impartial tribunal or forum.”

[111] Lufuno Mphaphuli above n 9 at paras 213-4 and 216-8.

[112] Id at para 215.

[113] Id at para 220.

[114] Id at para 221.

[115] Id at para 235.

[116] Supreme Court of Appeal judgment above n 10. The judgment is based on an acceptance of the validity of the building contract, which includes an arbitration clause. It expressly rejected as irrelevant arguments presented to it relying on the equities of the case and that due deference should be given to arbitration awards.

[117] Opperman above n 30 at para 63.

[118] See Jajbhay v Cassim 1939 AD 537 at 545 and 547-8. See also First National Bank of Southern Africa Ltd v Perry NO and Others [2001] ZASCA 37; 2001 (3) SA 960 (SCA) at paras 21-5.

[119] I was unable to find any case where an admittedly valid private contract or agreement (in terms of the applicable legislation) was found to be unenforceable by reason of the effect of the same legislation. The application of the principle in Wynberg above n 48 has been largely in the field of public law. See The Master of the High Court (North Gauteng High Court, Pretoria) v Motala NO and Others [2011] ZASCA 238; 2012 (3) SA 325 (SCA) at para 9; City of Tshwane Metropolitan Municipality v RPM Bricks (Pty) Ltd [2007] ZASCA 28; 2008 (3) SA 1 (SCA) at paras 22-3; and Potchefstroom se Stadsraad v Kotze 1960 (3) SA 616 (A) at 632G. See also National and Overseas Distributors Corporation (Pty) Ltd v Potato Board 1958 (2) SA 473 (A) at 480A-D where the Court distinguished the facts before it from those in Wynberg and held the principle in that case could not be applied.

[120] See [148]-[168] below on the approach to interpretation.

[121] Barkhuizen above n 97. See also [126].

[122] See [124] and [139](d) above.

[123] Compare Oilwell (Pty) Ltd v Protec International Ltd and Others [2011] ZASCA 29; 2011 (4) SA 394 (SCA) and Barclays National Bank Ltd v Thompson [1985] ZASCA 50; [1985] 2 All SA 355 (A).

[124] Opperman above n 30.

[125] See [44] of the main judgment.

[126] See above [142] and above n 118.

[127]

SATAWU and Others v Moloto and Another NNO [2012] ZACC 19; 2012 (6) SA 249 (CC); 2012 (11) BCLR 1177 (CC) at para 44; Investigating Directorate: Serious Economic Offences and Others v Hyundai Motor Distributors (Pty) Ltd and Others: In re Hyundai Motor Distributors (Pty) Ltd and Others v Smit NO and Others [2000] ZACC 12; 2001 (1) SA 545 (CC); 2000 (10) BCLR 1079 (CC) at paras 22-3; and S v Zuma above n 18 at paras 15-6.

[128] Section 10(6) and (7) of the Housing Protection Act.

[129] Where it is not a gambling contract or other agreement offensive to public policy.

[130] 53 of 1979. See section 41.

[131] 112 of 1976. See section 34A.

[132] Section 27 of the Housing Protection Act.

[133] See Item 11 of the General Regulations regarding Housing Consumer Protection Measures, GN R1406 Government Gazette 20658, promulgated on 1 December 1999 (General Regulations).

[134] Section 5 of the Housing Protection Act.

[135] Section 13(2).

[136] Sections 14 and 14A.

[137] Section 10(3)(c).

[138] Section 10(4) and (5).

[139] See Item 11of the General Regulations above n 133.

[140] See above [132] and [145]-[146].

[141] Schierhout above n 48 at 109-10.

[142] See Metro Western Cape above n 79 at 188F-H; Dhlamini en ’n Ander v Protea Assurance Co Ltd 1974 (4) SA 906 (A) at 913H-914C; Swart v Smuts 1971 (1) SA 819 (A) at 829C-830C; and Estate Van Rhyn above n 78 at 274.

[143] Pottie above n 70.

[144] Id at 726H-727A.

[145] Id at 727E-G.

[146] This reasoning also finds support in jurisprudence from other countries that have dealt with similar issues. In Loving & Evans v Black 204 P.2d 23 (Cal 1949), a case involving almost identical facts, the California Supreme Court refused to enforce an arbitration award that was based on a contract between a homeowner and an unlicensed building contractor. The dissenting judge’s criticism of the majority holding (at 30) was as persuasive then as it is now: “The majority opinion has attempted to resolve the problem as though it might involve an unlawful contract or a contract contrary to public morals and therefore void. It may be assumed that a law declaring such contracts illegal may not be circumvented by submitting controversies thereunder to arbitration and obtaining court confirmation. But the contract here is not of that nature. There is nothing basically unlawful or contrary to public morals in a contract to construct or repair a building. . . . The statute does not declare such a contract to be unlawful. The declaration of unlawfulness is confined to

engaging in the business or acting in the capacity of a building contractor without having secured a license. A person pursuing the activities of a building contractor without the required license is guilty of a misdemeanour. And such person may not maintain an action in any court of the state for the collection of compensation for building contractor services. These are the [only] consequences attached to violation.” (References omitted.)

[146] This reasoning also finds support in jurisprudence from other countries that have dealt with similar issues. In Loving & Evans v Black 204 P.2d 23 (Cal 1949), a case involving almost identical facts, the California Supreme Court refused to enforce an arbitration award that was based on a contract between a homeowner and an unlicensed building contractor. The dissenting judge’s criticism of the majority holding (at 30) was as persuasive then as it is now:

“The majority opinion has attempted to resolve the problem as though it might involve an unlawful contract or a contract contrary to public morals and therefore void. It may be assumed that a law declaring such contracts illegal may not be circumvented by submitting controversies thereunder to arbitration and obtaining court confirmation. But the contract here is not of that nature. There is nothing basically unlawful or contrary to public morals in a contract to construct or repair a building. . . . The statute does not declare such a contract to be unlawful. The declaration of unlawfulness is confined to

engaging in the business or acting in the capacity of a building contractor without having secured a license. A person pursuing the activities of a building contractor without the required license is guilty of a misdemeanour. And such person may not maintain an action in any court of the state for the collection of compensation for building contractor services. These are the [only] consequences attached to violation.” (References omitted.)