Mason v Swanepoel (4505/2013) [2021] ZAFSHC 147 (2 June 2021)

IN THE HIGH COURT OF SOUTH AFRICA,

FREE STATE DIVISION, BLOEMFONTEIN

Case number: 4505/2013

In the matter between:

DOUGLAS

MASON

Plaintiff

And

CHRIS

SWANEPOEL

Defendant

HEARD ON: 16 & 17 MARCH 2021

WRITTEN HEADS OF ARGUMENT DELIVERED ON 23 MARCH 2021, 29 & 06 APRIL 2021

JUDGMENT BY: DANISO,

J

DELIVERED ON: This judgment was handed down electronically by circulation to the parties' representatives by email and by release to SAFLII. The date and time for hand-down is deemed to be 14H00 on 02 June 2021.

[1] The plaintiff sued the defendant for damages arising from the defendant’s unlawful termination of the plaintiff’s right to occupy the defendant’s farm known as the Wetherrun Farmhouse (the farmhouse) for as long as he wished.

[2] The plaintiff and the defendant concluded the habitatio agreement during January / February 2011.[1] In terms of the said agreement the plaintiff was granted a lifelong occupation of the farmhouse in return for restoring it to a habitable state.

[3] On 14 February 2013 the defendant cancelled the agreement and evicted the plaintiff. At this stage the plaintiff had effected about 80% of the restorations. The defendant refused to reimburse the plaintiff for the costs he expended and subsequently defended the action instituted by the plaintiff in that regard.

[4] The trial on the liability issue proceeded before Naidoo, J on 10 February and 27 October 2015. Judgment on the merits was subsequently granted in favour of the plaintiff on 19 February 2016, the defendant was ordered to pay the plaintiff such damages in respect of the renovations as the plaintiff is able to prove.

[5] The issue which remains to be determined by this court is that of the quantum of the damages to be awarded to the plaintiff.

[6] The plaintiff initially claimed an amount of R416 378.24 for labour, building material and delivery costs. During the course of the trial the plaintiff amended his claim by incorporating a claim for a project management fee for R150 000.00 and also reduced the capital of the amount claimed to R400 761.15.

[7] It is common cause that the agreement made provision for the plaintiff to recover the costs he expended in restoring the farmhouse in the event of termination of the agreement.[2] The defendant disputes the computation of the quantum of the plaintiff’s claim on the basis that some of the renovations involve major structural alterations to the farmhouse’s original structure and design which were not agreed to. The defendant is thus not liable to reimburse the plaintiff for those costs.

[8] It is the plaintiff’s case that the farmhouse had been vacant for over fifteen years. It was dilapidated and vandalized. He hired a building contractor, artisans and general labourers while he oversaw the building project and sourced the required building materials.

[9] Extensive repairs were carried out involving the demolition and rebuilding of some walls and/or floors of the kitchen, bathroom and veranda; replacement of ceilings, gutters, fascia boards, windows, exterior doors and veranda pillars; repainting of the interior and the exterior; repair of roof leaks; and installation of the septic tank for plumbing and ablution purposes. A gate motor and an additional fence was also installed for security and also to keep animals off the farmhouse.

[10] Exhibit 12 consists of photographs depicting the condition of the farmhouse before and after the restoration project and exhibit 2 to 8 are copies of the receipts and proof of payments for building materials and labour costs.

[11] The plaintiff asserts that there was no building plan nor restriction with regard to the work that he was allowed to do or prohibited from doing instead, he was allowed creative control to restore the farmhouse to his personal taste. The defendant and his wife visited the farmhouse regularly and were impressed by the work no objections were voiced against any of the work he was doing. By the time he was evicted he had incurred costs in the amount of R105 931.00 for labour, R118 351. 67 for building materials and R26 478.48 for delivery of the building materials.

[12] The plaintiff contends that he is also entitled to a project management fee in the amount of R150 000.00 for his time and effort for overseeing the renovations.

[13] The plaintiff’s expert Mr. Loius Badenhorst is a senior quantity surveyor and project manager with over 10 (ten) years’ experience in amongst others, property valuations, cost consulting, estimating, planning and project management. During October 2018 he assessed the farmhouse to determine the reasonableness of the renovation costs expended by the plaintiff. Following the assessment, he prepared a Bill of Quantities which he sent to local contractors inviting them to submit quotations. This was to ensure that accurate market related prices are determined. Three contractors submitted quotations which made provisions for materials, labour, profit and fees for skilled project managers. He selected the lowest quote in the sum of R597 834 .63 including VAT submitted by an entity known as Sebedisan Construction. The quoted amount was de-escalated to R416 378.20 reckoned from the year of assessment 2018 to 2014 being the year of the renovations at the rate of 4% per annum. According to Mr. Badenhorst, the amount of R416 378.20 is fair and reasonable to renovate the farmhouse to a habitable condition.

[14] It was his testimony that the plaintiff is not a qualified site or project manager. He would therefore rate him as a low experienced foreman and having regard to the nature and duration of the work that the plaintiff has done the amount that would be reasonable to recompense him for management of the restoration project would be R150 000.00 per annum.

[15] On the other side, the defendant is adamant that the plaintiff is only entitled to the costs necessary to restore the farmhouse to its original state. The amount that would be fair and reasonable for such renovations is only R165 846.80. The rest of the repairs were not necessary but purely cosmetic. The defendant did not even approve same.

[16] The defendant’s expert Mr Ulices De Souza De Barros agreed with the defendant’s contention. He has been in the construction business for over 25 years. He does property inspections and evaluations for insurance companies and private individuals. In 2020 he also assessed the farmhouse however, as opposed to the plaintiff’s expert his assessment related to whether the plaintiff renovated or restored the farmhouse. It was his conclusion that the plaintiff had not restored the farmhouse to its original state, he had instead renovated it to his own taste. Mr De Barros contends that the fair amount associated with the necessary costs to restore the farmhouse to his (Mr De Barros) liking, excluding the repairs not consented to by the defendant is R165 846.80. Furthermore, the plaintiff was an “owner builder.” He effected the repairs for his own benefit he is therefore not entitled to claim compensation as a project manager.

[17] Thus was in short the evidence adduced on behalf of the parties and in addition thereto, documentary evidence was also handed in by the concurrence of both the parties as Exhibit 1 to 8 and 12.

[18] On the facts germane to this matter, the agreement between the parties, exhibit 1 makes provision for the plaintiff to effect repair work on the farmhouse in return for a lifelong occupation and to also recover the costs he incurred in the event the agreement is cancelled.

[19] The defendant’s version that the plaintiff essentially breached the agreement by deviating from the terms of the agreement by effecting repairs which altered the structure and design of the farmhouse is gainsaid by the agreement. Nowhere is it stated on the said agreement that the plaintiff was prohibited from effecting such repairs. The plaintiff’s evidence that there was no building plan nor a scope of work which detailed the kind of repairs he was permitted to carry out and those he was prohibited from effecting is uncontroverted. It is also important to note that the defendant’s reason for cancelling the agreement was not premised on the alleged breach of the agreement by the plaintiff.

[20] For the above reasons, I find the defendant’s version to be untenable it therefore causes to be rejected as false. The plaintiff’s contention that he was given free rein to restore the farmhouse to his own liking or taste prevails.

[21] The locus classicus on the principle governing the assessment of damages to be awarded pursuant to a breach of contract is Victoria Falls & Transvaal Power Co Ltd v Consolidated Langlaagte Mines Ltd 1915 AD 1. ‘The sufferer by such a breach should be placed in the position he would have occupied had the contract been performed, so far as that can be done by the payment of money, and without undue hardship to the defaulting party…’ See para 22.

[22] The plaintiff’s documentary evidence, exhibits 2 to 8 and 11 constitutes sufficient proof of the expenses he incurred in restoring the farmhouse. The plaintiff’s expert evidence has also established that the costs are reasonable under the circumstances.

[23] I’m satisfied that the plaintiff has adduced sufficient evidence to prove his claim for the costs of renovating the farmhouse on a balance of probabilities.

[24] As regards the project management fee, the claim is superfluous. On the available evidence the claim is not provided for in the agreement. I’m not persuaded that the claim for a project management fee is available to the plaintiff.

[25] In the premises, the following order is made;

(1) The defendant is ordered to pay the plaintiff damages in the amount of R250 761.15.

(2) The defendant shall pay the interest on the aforesaid amount at the current prescribed legal rate of interest at tempore morae.

(3) The defendant shall bear the costs of this claim on party and party scale together with the costs of the preparation of the of the plaintiff’s expert reports and the qualifying fees if any, of the experts, Mr Louis Badenhorst and Mr Danie Senekal.

Dated at BLOEMFONTEIN on this the 02nd day of JUNE 2021

_____

N.S. DANISO, J

APPEARANCES:

Counsel on behalf of Plaintiff: Adv. D.M. Grewar

Instructed by: Symington & De Kok Attorneys

BLOEMFONTEIN

Counsel on behalf of Respondents: Adv. M.C. Louw

Instructed by: Azar & Havenga Attorneys

[1] Exhibit 1 is a copy of the agreement.

[2] Clause 4 of exhibit 1.