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Duys and Others v Snyman De Jager Inc and Another (48139/2007)  ZAGPHC 237 (2 June 2008)
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IN THE HIGH COURT OF SOUTH AFRICA [TRANSVAAL PROVINCIAL DIVISION]
CASE No: 48139/2007
2 JUNE 2008
In the matter between :
JANETTA CLASIENA DUYS FIRST APPLICANT
ANETTE DORORHY RAUTENBACH SECOND APPLICANT
GERRIT JAN DUYS THIRD APPLICANT
SNYMAN DE JAGER INC FIRST RESPONDENT
IWAN CHRISTIAAN SCHUTTE SECOND RESPONDENT
 The Applicants seek an order against the First Respondent to pay an amount of R70 259.25 to the Mogale City Local Municipality, ["the municipality"] which money is alleged to be held in Trust by the First Respondent on behalf of the Second Respondent, for electrical installation arising from purchase of certain immovable properties by the First and Third Applicants, from the Second Respondent. The First Respondent is a firm of attorneys that handled the transfer of the property.
 In the alternative, and in the event of the First Respondent already having forwarded the said sum to the Second Respondent, the Applicants seek an order that the First Respondent pay the municipality such amount from its business account. Against the Second Respondent, the Applicants seek payment of the sum of R10 347.49, being the difference between the originally quoted amount, and the escalated amount, being in respect of the said electrical installation.
 The First and Third Applicants are married to each other out of community of property. For convenience, I would refer to the First and Third Applicants as "the Applicants". On 27 March 2006 the Applicants and the Second Respondent entered into two separate Agreements of Sale in respect of certain immovable properties, namely, the remaining extent of erf 2241 Range View Extension 4, as well as portion 1 of erf 2241, Range View Extension 4. The Second Applicant is an estate agent who sold the property on behalf of the Second Respondent.
 Now, the simple point of dispute between the parties is, upon whom, between the Applicants and the Second Respondent, does liability lie for the new electrical installation on the immovable properties referred to above.
 To answer that question, regard must be had to the established facts and the issues common cause between the parties. Those are succinctly the following:
just prior to the sale of the properties, the Second Respondent, apparently in anticipation of the sale of the properties, enquired from the municipality as to the liability for new electrical installation. After receipt of contradictory information from the municipality, the Second Respondent eventually received and completed an electrical application form on 24 March 2006. He returned the said form to the municipality on 27 March 2006, incidentally being the day on which the purchase agreements were concluded;
The municipality's conditions for the rezoning and subdivision of erf 2241 Rangeview Extension 4, are contained in a letter dated 7 February 2006, addressed to Wesplan and Associates. It is not clear on the papers as to what role the said entity played, or whose agent such entity was. However, it is common cause between the parties that the contents of the said letter reflect the municipality's conditions for subdivision. The said letter is annexure "C" of the First Applicant's founding affidavit and appears on page 27 of the paginated papers. The relevant portions of the said conditions appear in paragraphs 11 and 28, which provide:
"11. "The applicant shall submit an affidavit confirming that he/she has complied with all the conditions of the subdivision before the portions are registered with the Registrar of Deeds."
"28. "The existing high-and low-voltage reticulation can only accommodate limited future development. Only one single phase electrical service connection is allowed for the above-mentioned stand. With the subdivision of the stand an additional single-phase electrical service connection must be made available to the newly created portion and the owner or the developer will be responsible for the costs thereof. The applicant must liaise with the Deputy Director: Electricity for detail [sic] information and costs."
The Third Applicant commenced with the erection of residential dwelling on the properties, and enquired from the municipality in connection with the installation of a DA/single phase electrical pre-payment supply to the said properties. In response, the municipality advised the Third Applicant that such installation could be made at the cost of R70 259.25.
The Applicants were, in the light of the above cost, reluctant to proceed with registration of transfer of the property and instructed their attorneys to withhold such transfer until the amount of the projected cost was received from the Second
Respondent. This was apparently communicated to the Second Respondent's attorneys, the First Respondent in this application. In response, the First Respondent, in a letter dated 28 November 2006, advised the Applicants' attorneys as follows:
"1. Die oordragte mag wel voortgaan op 28 November, 2006:
'n Bedrag van R70 259,25 sal deur ons firma op trust gehou word hangende onderhandelinge tussen ons klient en Mogale City Local Municipality rakende die elektriese kwotasie. Uit vorige korrespondensie met die Mogale City Local Municipality blyk dit dat die klient nie enige bydrae ten aansien van die elektriese aansluiting moes maak nie:
Ons klient sal teen Vrydag 1 Desember, 2006 met die raad vergader ten einde hierdie aangeleentheid uit te stryk;
Hierdie mededeling moet nie geinterpreteer word as synde 'n erkenning van ons klient dar hy aanspreeklik is vir die betaling van die bedrag ten aansien van die elektrise aansluiting nie, en behou ons klient sy regte in die verband voor."
[e] On 6 August 2007, the municipality referred to the Second Respondent's application for an electrical point and advised him of the cost of installation thereof in the amount of R80 606.74
 It was argued by Mr. Nel, on behalf of the Second Respondent, that there are several disputes of fact which render the application incapable of determination on the papers, and therefore the matter should be referred for oral evidence. He pointed out for example contradictory positions adopted by the municipality's officials regarding who should be liable for installation of new electrical points. While I agree the such disputes exist, I am not persuaded that on the established facts, the court is not capable to arrive at a determination. I will now proceed to consider the contentions on behalf of the parties.
 The Second Respondent argues that the letter dated 6 August 2007 was addressed to him though he did not apply for the service. That letter cannot be viewed in isolation. The Second Applicant did make an application for an electrical point on 27 March 2006. It should also be borne in mind that one of the conditions for the subdivision was that the applicant for subdivision had to confirm that all the conditions of the subdivision had been complied with, before the subdivided portions are registered with the Registrar of Deeds. That applicant was the Second Respondent.
 The Second Respondent also argued that he was not the developer but merely an owner who only intended to sell the stands and therefore, could not be liable for the electric installation. The Third Applicant, so goes the argument, should, as a developer, be responsible for such installation. However, when one has regard to paragraph 28 of the municipality's conditions for subdivision, quoted above, on a proper construction thereof, I am of the view that, the party applying for subdivision of the property, is liable for the electric installation and the cost thereof, irrespective of whether that party is the owner or developer of the property. As already stated above, that party in the present case is the Second Respondent.
 The Second Respondent, it should be recalled, revoked the instruction to the First Respondent to pay the amount kept in Trust to the municipality, pending finality or clarity from the municipality on the liability for electric installations. The Applicants argue that, such clarity and finality have been achieved by the contents of the municipality's letter dated 6 August 2007. I agree. My view in this regard is fortified by the contents of a letter dated 6 December 2006, by the Second Respondent to the municipality. The said letter is Annexure "IC57" to the answering affidavit, page 96 of the paginated papers. It states among others, the following:
"Please note that I am willing to pay for installation work, but feel strongly that I should be charged at prices applicable at the initial application (27/3/06)."
 Now regard being had to the totality of the factors, I come to the conclusion that the Second Respondent is liable for the new electrical installation in respect of the property. I am therefore inclined to grant prayer (a) of the notice of motion, as amended. The First Respondent has not opposed the application, and there is no suggestion on the papers that the First Respondent is no longer holding the money in its Trust account. With regard to the difference of R10 347.49 as claimed in prayer (c), I am of the view that the escalation in installation costs was occasioned by inept and incompetent officials of the municipality, and as such, it would be unjust to burden the Second Respondent with same.
 In the premises I make the following order:
[10.1] The First Respondent is ordered to pay the Mogale City Local Municipality the amount of R70 259.25 in respect of property known as 2241 Rangeview Extension 4, which amount the First Respondent holds in its Trust account on behalf of the Second Respondent;
[10.2] The Second Respondent is ordered to pay the costs hereof.
ACTING JUDGE OF THE HIGH COURT.