Good morning

We contracted a builder for extensions to our exising residential property in the Western Cape and he sent us numerous quotes for various tasks (such as building a boundary wall, cleaning and painting the roof, extensions to the existing garage, etc.). After accepting the quotes, we paid money in advance for him to buy materials, and we also paid for labour costs. Some projects were finished, others are not complete yet, though he received advance payment to buy the materials. We asked several times to receive all invoices for materials bought, and he promised to submit it, but never did. After enquiring several times when we will receive the materials or when it will be delivererd, he accused us of doubting him and he just stayed away. We tried to contact him several times, but he ignores any communication. He has received advance payments of over R100 000 and there are no materials to show for this payment, neither do we have any receipts for any purchases made.

We have decided not to use his services any longer, and we want recourse to get our advance payments back for all the materials and labour costs paid, but not delivered.

What legal steps can we take?

Thanks.

Jacques Jansen

Hi there and thank you for your question, 

I am a practicing attorney based in South Africa and I will assist you with your question. Please feel free to ask as many follow up questions in order to clarify your question. If you have a new question, you must please open a new thread. 

Unless it was agreed with him that you would be entitled to receive the invoices for the materials which he bought, you can't demand copies of those invoices. It all depends on what the agreement was. 

Sometimes the agreement might be:- I will pay for the cost price of the materials; I will pay you a 10% markup on the cost price of the materials; I will pay you for the labour and supervising costs. 

But, sometimes the agreement might be:- I will pay you the quote of R200,000 for you to build the garage; I will give you R50,000 in advance to buy the material, and then the balance of R150,000.

In the second instance, you can't demand copies of the invoices for the materials. It's not your business. In the first example, you can. 

If he is now messing you around, and not communicating with you, and not coming back to site, I think that you've got an issue which you need to deal with! 

What you need to do is to cancel his contract with him. I think that you would almost need to give him a written demand in respect of each of the outstanding quotes, giving him 7 days notice to continue working, failing which you are going to hold him in breach and cancel the contracts. (You need to give him notice and time to rectify the breach before you can cancel)

Then, if he still doesn't react, then you must send a second letter cancelling the contracts. 

Then, you'll need to issue a summons out of the Magistrates Court and sue him for the return of the R100,000 that you paid him previously.  The Small Claims Court only deals with amounts less than R25,000, so that won't assist you. 

In order to issue a summons out of the Magistrates Court, I would suggest that you use a lawyer to assist you in drafting the summons and the statement of claim.

If there is a part of the answer which you need more advice on, or clarity please continue in this same thread instead of opening a new question. 

Att. Patrick 

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