[53] Mr Muller pointed out that there is no entity or firm called “Prestige Properties” and that the plaintiff therefore did not prove that the agreement was concluded with “Harold Schmidt trading as Prestige Properties.” I agree with this submission, but the effect is not fatal. The evidence shows that Mr Schmidt was the contracting party. In either case the liability remains that of Mr Schmidt personally. [54] It follows from the above that the defendant’s defence on this question is rejected. Should the Court hold that the correct party is sued, does the defendant’s plea disclose a defence? [55] During argument plaintiff’s counsel referred to paragraph 3.1 of the defendant’s plea in which he denies that the parties entered into agreement that the plaintiff would render architectural services to the defendant. In amplification of this denial the defendant pleads that the agreement was with City Park Properties and not with the defendant. Having thereafter set out certain terms of the agreement, the defendant then pleads that City Park Properties CC duly complied with its obligations under the contract, but that the plaintiff failed to meet its obligations under the contract. Counsel pointed out that the defendant did not make the averment that, in the alternative, should the correct party be cited the plaintiff would in any event not be entitled to payment because it has not performed its obligations. Counsel submitted that this failure would be fatal for the defendant in the event that the Court finds that the plaintiff sued the correct party (as the Court has indeed now found), because the defendant did not raise a defence in respect of this aspect. [56] It is trite that the pleadings must be construed as a whole. Even if the plea might not be a model of clarity, it can be seen when read with the allegation in paragraph 3.3 that “the amount being claimed by Plaintiff is not due and payable” that the intention of the pleader is to convey that the plaintiff did not fulfil its obligations in any event, regardless of which party is sued. This is also the basis on which the case was fought, as Mr Muller submitted. In the circumstances the plaintiff’s contention should not be upheld. Did the plaintiff perform its obligations under the contract, alternatively should it be awarded a reduced fee?
[76] A problem that was noted by the Town Planning Department was that the particular erf was zoned for residential development. As such the plans, which are for offices, could not be approved. Clearly this would be a matter which the plaintiff as the architect could not itself solve, but it was required of the plaintiff to bring it to the attention of the defendant for further action, e.g. by making application for However, during the trial this became somewhat of a non-issue as the defendant was able to show that the municipality had in fact already approved the of the property for the building of offices in February 2002 before the plans were submitted and, in spite of issues like the invoicing for and payment of a betterment fee and Ministerial approval being awaited, the approval process was not materially stalled by the query on the zoning. [77] The Roads Construction Department required that the storm-water flow or directions should be indicated on the site plan. According to Mr Loots all that was required was for the plaintiff to indicate on the plan by means of arrows which route the storm water will be taking, which is normally to the lowest point of the erf. [78] The Sewer and Drainage Department required the sewer layout and engineers’ drawings in relation thereto. Mr Loots testified that all that was required was in respect of the sewer layout was for the architect to indicate on the plans in which direction the sewer line will run to the municipal sewer line to be connected at that point. However, he did confirm that before final approval may be given, the engineers would have to submit detailed drawings of the sewer system. [79] Mr Loots further confirmed that the structural engineer’s detailed drawings about the structure of the buildings would be required. Although Mr Loots did not specify this, Mr le Roux confirmed that the detailed drawings for the storm water drainage would also eventually be required. [80] Mr le Roux and the defendant testified that Africon at first were working for the defendant in respect of this project on risk with the understanding that they might be appointed at a later stage. Africon was eventually appointed on 20 September 2002 with effect from 9 August 2002 to deal with the structural elements of the project. Mr le Roux confirmed that during August 2002 he and Mr O’Flaherty, a civil engineer also employed by Africon, had several meetings with Mr Smith and the defendant and that sufficient sketches and input was provided for the plaintiff to do the design