Van Immerzeel & Pohl and Another v Samancor Ltd (543/98) [2000] ZASCA 79; 2001 (2) SA 90 (SCA); [2001] 2 All SA 235 (A) (30 November 2000)

Van Immerzeel & Pohl and Another v Samancor Ltd (543/98) [2000] ZASCA 79; 2001 (2) SA 90 (SCA); [2001] 2 All SA 235 (A) (30 November 2000)

The Supreme Court of Appeal held that the contractor under the construction contract was the firm, not the close corporation, based on the contract wording, tender documents, and conduct. Prescription had not run against the firm because the plaintiff reasonably believed the debtor was the close corporation and only learned otherwise less than three years before joinder. The cession of claims from the employer to the plaintiff was valid and included the damages claim. The employer suffered damage as it had a contractual right to claim the cost of re-executing defective work, regardless of land ownership. ACE was a nominated sub-contractor, making the firm liable for its defective work....

Citation
[2000] ZASCA 79
Parties
Appellant: Van Immerzeel & Pohl; Appellant: Cocciante Construction; Respondent: Samancor Ltd
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
30 November 2000
Case Number
543/98
Procedural Posture
Civil Appeal / Appeal Against Judgment of the Transvaal Provincial Division
Outcome
Appeals of both appellants dismissed with costs, including costs of two counsel, and damages awards adjusted for retention money deduction.
Judges
Olivier, Schutz, Farlam, Brand, Chetty
Legal Topics
Construction Contracts, Prescription Act, Cession of Claims, Damages Assessment, Contractual Liability, Professional Services Liability
Commercial and Corporate Civil Procedure Land and Property Construction Contracts Prescription Act Cession of Claims Damages Assessment Contractual Liability +1 more

Case Brief

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Parties

Van Immerzeel & Pohl

Appellant

Cocciante Construction

Appellant

Samancor Ltd

Respondent

Procedural Posture

Civil Appeal / Appeal Against Judgment of the Transvaal Provincial Division

Legal Issues

  1. 1 Whether the contractor under the construction contract was the firm or the close corporation.
  2. 2 Whether the claim against the contractor had prescribed before joinder and service of amended particulars of claim.
  3. 3 Whether the employer's claim was validly ceded to the plaintiff.

Ratio Decidendi

The Supreme Court of Appeal held that the contractor under the construction contract was the firm, not the close corporation, based on the contract wording, tender documents, and conduct. Prescription had not run against the firm because the plaintiff reasonably believed the debtor was the close corporation and only learned otherwise less than three years before joinder. The cession of claims from the employer to the plaintiff was valid and included the damages claim. The employer suffered damage as it had a contractual right to claim the cost of re-executing defective work, regardless of land ownership. ACE was a nominated sub-contractor, making the firm liable for its defective work....

Court Disposition

Appeals of both appellants dismissed with costs, including costs of two counsel, and damages awards adjusted for retention money deduction.

Orders

  • The appeals of both appellants are dismissed with costs, including those occasioned by the employment of two counsel.
  • The order of the court below is altered by substituting the amount of R910 570 for R973 544-48 in paragraph 1.