Raudev (Pty) v Emerging Markets Home Loans Two (Pty) Ltd and Others (A141/20; 75566/17) [2021] ZAGPPHC 680 (7 October 2021)

Raudev (Pty) v Emerging Markets Home Loans Two (Pty) Ltd and Others (A141/20; 75566/17) [2021] ZAGPPHC 680 (7 October 2021)

The court found that the spalling in the units was caused by a latent defect in the bricks, not the plasterwork, as confirmed by expert evidence and Raudev's own admissions. The Agreement required Raudev to expeditiously remedy latent defects upon written notice from Emerging Markets. The correspondence between the parties did not create a new contract or vary the original Agreement; it merely invoked the breach clause. Raudev's undertaking to remedy the defects was not conditional, and any attempt to link it to the release of retention monies or the appointment of its own engineer was external to the Agreement. The order for specific performance and, alternatively, cancellation and...

Citation
[2021] ZAGPPHC 680
Parties
Appellant: Raudev (Pty) Ltd; Respondent: Emerging Markets Home Loans Two (Pty) Ltd; Respondent: The Body Corporate of the Piccolo Close Sectional Title Scheme
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
7 October 2021
Case Number
A141/20; 75566/17
Procedural Posture
Civil Appeal / Appeal Against Judgment and Order of Baqwa J
Outcome
Appeal dismissed with costs, save that paragraph 4 of the order of Baqwa J is struck out.
Judges
Neukircher, Van Der Westhuizen, Van Der Schyff
Legal Topics
Latent Defects, Specific Performance, Contractual Remedies, Sectional Title Scheme, Damages, Joinder of Parties
Commercial and Corporate Land and Property Civil Procedure Latent Defects Specific Performance Contractual Remedies Sectional Title Scheme Damages +1 more

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Parties

Raudev (Pty) Ltd

Appellant

Emerging Markets Home Loans Two (Pty) Ltd

Respondent

The Body Corporate of the Piccolo Close Sectional Title Scheme

Respondent

Procedural Posture

Civil Appeal / Appeal Against Judgment and Order of Baqwa J

Legal Issues

  1. 1 Whether Raudev is liable to remedy latent defects in the units sold to Emerging Markets under the Agreement.
  2. 2 Whether the correspondence between the parties constituted a new contract or varied the original Agreement.
  3. 3 Whether Raudev's undertaking to remedy defects was conditional.

Ratio Decidendi

The court found that the spalling in the units was caused by a latent defect in the bricks, not the plasterwork, as confirmed by expert evidence and Raudev's own admissions. The Agreement required Raudev to expeditiously remedy latent defects upon written notice from Emerging Markets. The correspondence between the parties did not create a new contract or vary the original Agreement; it merely invoked the breach clause. Raudev's undertaking to remedy the defects was not conditional, and any attempt to link it to the release of retention monies or the appointment of its own engineer was external to the Agreement. The order for specific performance and, alternatively, cancellation and...

Court Disposition

Appeal dismissed with costs, save that paragraph 4 of the order of Baqwa J is struck out.

Orders

  • Paragraph 4 of the order of Baqwa J of 17 October 2019 is struck out.
  • The appeal is dismissed with costs.