Werts v Tilink CC (CA 26/2011) [2013] ZAECGHC 83 (15 August 2013)

Werts v Tilink CC (CA 26/2011) [2013] ZAECGHC 83 (15 August 2013)

The magistrate erred in finding that the waterproofing problem with the downstairs bedroom window only arose after the retention period, as evidence indicated it was raised during the retention period. The plaintiff failed to discharge the onus of proving that all retention work was completed timeously, and thus the defendant was entitled to absolution from the instance on claim three. The doctrine of fictional fulfilment did not apply, as there was no evidence that the defendant prevented the plaintiff from performing retention work during the relevant period. Regarding the third counterclaim, credible evidence established that the plaintiff's employees damaged the bamboo flooring, and...

Citation
[2013] ZAECGHC 83
Parties
Appellant: Julian Werts; Respondent: Tilink CC
Court
Eastern Cape High Court, Grahamstown
Jurisdiction
South Africa
Judgment Date
15 August 2013
Case Number
CA 26/2011
Procedural Posture
Civil Appeal / Appeal From Magistrate's Court Judgment
Outcome
Appeal upheld on claim three and the third counterclaim. Magistrate's orders set aside and substituted. Matter referred back for determination of quantum.
Judges
Griffiths, Nepgen
Legal Topics
Absolution From the Instance, Retention Monies, Counterclaim Liability, Quantum Separation, Delictual Damage
Civil Procedure Land and Property Absolution From the Instance Retention Monies Counterclaim Liability Quantum Separation Delictual Damage

Case Brief

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Parties

Julian Werts

Appellant

Tilink CC

Respondent

Procedural Posture

Civil Appeal / Appeal From Magistrate's Court Judgment

Legal Issues

  1. 1 Whether the magistrate erred in granting judgment for the plaintiff on claim three regarding retention monies.
  2. 2 Whether the defendant was entitled to absolution from the instance on claim three.
  3. 3 Whether the defendant's third counterclaim for damage to bamboo flooring should have succeeded.

Ratio Decidendi

The magistrate erred in finding that the waterproofing problem with the downstairs bedroom window only arose after the retention period, as evidence indicated it was raised during the retention period. The plaintiff failed to discharge the onus of proving that all retention work was completed timeously, and thus the defendant was entitled to absolution from the instance on claim three. The doctrine of fictional fulfilment did not apply, as there was no evidence that the defendant prevented the plaintiff from performing retention work during the relevant period. Regarding the third counterclaim, credible evidence established that the plaintiff's employees damaged the bamboo flooring, and...

Court Disposition

Appeal upheld on claim three and the third counterclaim. Magistrate's orders set aside and substituted. Matter referred back for determination of quantum.

Orders

  • On claim three, the defendant is granted absolution from the instance with costs.
  • On the third counterclaim, the plaintiff is liable for any damages the defendant may prove to have arisen from the damage caused to the bamboo flooring, and is to pay the costs of this counterclaim up to this stage. The matter is referred back to the magistrate for determination of quantum.