IN
THE HIGH COURT OF SWAZILAND
CIV.
CASE NO. 1143/92
In
the matter between
BUILDING
DESIGN GROUP SWAZILAND Plaintiff
and
BAFANA
DLAMINI Defendant
CORAM: DUNN
A.C.J.
FOR
THE PLAINTIFF: MR. FLYNN
FOR
THE DEFENDANT: MR. DUNSEITH
JUDGMENT
1ST
DECEMBER 1995
The
plaintiff seeks judgment against the defendant for payment of the sum
E14,750.00 being the balance outstanding on professional fees due by
the defendant to the plaintiff.
The
plaintiff's case is that it was approached and engaged by the
defendant to design a house for him. The first meeting between the
parties was held on the 6th September 1989. At this meeting the
defendant gave details of his requirements. The defendant was at that
time on vacation from his studies in the United Kingdom. He indicated
that he would be returning to the United Kingdom at the beginning of
October 1989 by which time he wished to have
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seen
and approved the preliminary design by the plaintiff. Mr Hall a
professional architect and one of the partners of the plaintiff
undertook to have the preliminary drawings completed by the 29th
September. Broad details of the defendant's requirements are
contained in a "client information" sheet (exhibit B) which
was kept by the plaintiff. It is common cause that a preliminary
design was drawn by the plaintiff and that a meeting was held between
Mr. Hall and the defendant on the 29th September at which the design
was discussed. It appears that the defendant may have expected a more
detailed design. Mr. Hall, however, maintained that the preliminary
design was in accordance with normal practice, based on the
defendant's requirements. Some alterations had to be made to the
design, in line with the defendant's requests and additional
requirements. The defendant left for the United Kingdom on the 2nd
October 1989. The required deposit of E1,000 was paid to the
plaintiff by the defendant's wife acting on his behalf, on the 3rd
October. Three letters were addressed to the defendant by the
plaintiff between the 4th October and the 30th November regarding the
progress of the project design. The letters were addressed to the
defendant's wife at Zambia Airways, Mbabane, that according to Mr
Hall having been the instruction given by the defendant.
The
defendant returned to Swaziland in December. He met with Mr. Hall on
the 11th December. It appears that the final design had not been
completed at that stage. The defendant at that stage indicated that
he intended having the final drawings submitted to the Mbabane Town
Council for
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approval
before his departure for the United Kingdom on the 22nd December.
According to Mr Hall it was agreed that the final drawings would be
completed and ready for collection by the defendant on the 20th
December. It is the plaintiff's case that the drawings were in fact
completed but that the defendant failed to collect them from the
plaintiff's premises as agreed. Attempts were made by Mr Hall to
deliver the drawings at Zambia Airways. The defendant's wife was
reported to have left for Johannesburg with the defendant. The
drawings remained with the plaintiff until the beginning of January
1990 when Mr Hall delivered them to the defendant's wife. Mr Hall was
advised that the defendant had returned to the United Kingdom. With
the final drawings having been completed and delivered to the
defendant, the plaintiff proceeded to seek payment of its fees. The
fees amounted to E15,750.00 less the E1,000 deposit paid by the
defendant on the 3rd October 1989. A letter was addressed by the
plaintiff (exhibit 'M') to the defendant at his address in the United
Kingdom on the 27th February 1990. The letter contained a summary of
what had transpired between the parties and a request for a meeting
between the parties during the defendant's next visit to Swaziland.
The
defendant came to Swaziland in April 1990 and a meeting was held on
11th April. The meeting and the issues discussed thereat were
confirmed by the plaintiff in a letter to the defendant dated 18th
April (exhibit 'N'). According to Mr Hall the defendant was still
interested in continuing with the project but it was clear that he
could
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not
do so at that particular time. It was Mr Hall's evidence that the
plaintiff agreed not to press on with its demand for payment until
the defendant's return to Swaziland in about July 1990. The position
was at that stage, that the defendant would upon his return to
Swaziland finalise all the arrangements regarding a loan and that the
project would then be re-activated. The plaintiff did not hear from
the defendant as expected in July. On the 12th September 1990 the
plaintiff wrote a letter (exhibit 'O') to the defendant setting out,
inter alia, the following :-
We
agreed to post-pone claiming the outstanding fees due to us until
your expected return in July. As you will appreciate, these fees were
originally due in January 1990. It is now September and we have not
heard from you. Could you please notify us of your intentions with
regard to the project.
The
defendant did not respond to this letter. Mr Hall subsequently learnt
at a meeting with the defendant on the 20th February 1992 that the
defendant had sold the land on which he intended building and was for
that reason unable to proceed with the project.
An
application for absolution from the instance was made on behalf of
the defendant at the conclusion of the evidence given by Mr Hall.
There clearly was no merit in the application. Mr Hall's evidence of
an agreement between the parties was not challenged. It was not
disputed that the plaintiff carried cut its obligations under the
agreement
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and
completed the drawings and design requested by the defendant. The
plaintiff's fees were calculated according to a scale of fees which
was available for scrutiny by the defendant. There was no serious
challenge of this evidence, the position of the defendant being that
he had cancelled the contract due to a failure by the plaintiff to
complete the final drawings and design by the 15th December 1989.
This was denied by the plaintiff. The application for absolution from
the instance was, in the circumstances, dismissed.
The
defendant gave evidence. There is no dispute as to the contract and
performance by the plaintiff. The only dispute is as to the date by
which the plaintiff was to have completed the project. The defendant
emphasised in his evidence that it was a condition of the contract,
that the final drawings should be completed well in advance of his
departure for the United Kingdom on the 22nd December 19989. He told
the Court that he was disappointed, on his return to Swaziland in
December, to find that the final drawings had not been completed. It
was his evidence that Mr Hall apologised for the delay, at the
meeting of the 11th December and that Mr Hall undertook to work
overtime to ensure that the drawings were completed by the 15th
December 1989. According to the defendant the plaintiff did not
complete the drawings by that date. The defendant left for the United
Kingdom on the 22nd December without receiving the final drawings for
inspection and submission to the Town Council as originally planned.
It was his further evidence that when he was contacted by Mr Hall in
January 1990 he
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informed
Mr Hall that the agreement was cancelled as a result of the
plaintiff's failure to perform on time. Mr Hall's evidence of an
agreement to put the project on hold until the defendant's return to
Swaziland in July 1990 was denied by the defendant. The defendant
stated that he again informed Mr Hall of the cancellation of the
agreement, at the meeting of the 11th April at which meeting Mr Hall
was, according to the defendant also informed of the defendant's
intention to sell his plot.
It
is without any hesitation that I accept the evidence of Mr Hall in
preference to that of the defendant. Mr Hall was by far the better
and more satisfactory witness. The plaintiff had taken care to keep a
record, by way of the confirmatory letters to the defendant of what
transpired between the parties. The defendant did not respond to
these letters. The impact of his failure to respond to these letters
forced him into the position of denying that he had given his wife's
address as the place to which his correspondence should be addressed
by the plaintiff. He proceeded to deny having received the majority
of the letters. It is quite clear that the defendant has elected to
admit only those portions of the plaintiff's evidence that tend to
support his case. High on the list of such admissions is the
telephone call which Mr Hall made to the defendant in the United
Kingdom in January 1990. The defendant denied receiving any of the
letters that were addressed to his United Kingdom address. He
admitted the telephone call because that was the opportunity he
states he had of informing Mr Hall that he was cancelling the
contract.
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The
defendant's evidence of when he cancelled the contract is most
unsatisfactory and contradictory. In a letter written by the
defendant to the plaintiff on the 4th August 1992 the defendant
stated that the contract was cancelled on the 15th December 1989. In
his evidence, the defendant stated that he cancelled the contract in
the course of the telephone call from Mr Hall in January 1990. There
was also a suggestion of the contract having been cancelled during
March 1990.
It
is abundantly clear that there was no cancellation of the contract as
alleged by the defendant. The plaintiff performed its obligations in
terms of the contract. For reasons best known to the defendant he was
unable to proceed to the next stage of the project namely, obtaining
the necessary finance in order to commence construction. The
plaintiff was in no way responsible for what became of the project.
The plaintiff's specific obligations related to the design of the
project. The defendant has unsatisfactorily tried to resile from the
agreement on grounds which he has totally failed to substantiate. The
issue of the design having been based on wrong dimensions as to the
defendant's plot was thrown in as one of the defendant's complaints
against the plaintiff. This issue was at the end of the day,
irrelevant to the question of the plaintiff's performance of its
obligations. The manner in which the plaintiff's claim was calculated
was brought into issue at the trial. The claim had been communicated
to the defendant some years before the issue of summons. A reply was
given to the defendant's request for
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further
particulars on how the claim was arrived at. These issues do not in
anyway affect the plaintiff's clear case as testified to by Mr Hall.
Judgment
is granted in favour of the plaintiff in the sum of E14,750.00 with
interest at 9% p. a. from to-day's date to date of payment and costs.
B.
DUNN ACTING
CHIEF
JUSTICE
