Why On Rocky Ground

“On Rocky Ground” describes our house building disaster. It is more than a diary of a building nightmare. “On Rocky Ground” is also about a litigation nightmare that includes misappropriation of trust funds by the attorney, vexatious and frivolous litigation, malicious abuse of the court system and fraud and perjury. 

Building is stressful but when the builder, developer and authorities let you down it can be overwhelming. Hopefully our posts will help you avoid the same mishaps.

We have deliberately not named people and places in any of our posts. It is not our intention to cause any damage to the estate and the people who have built in and live on the estate. We are simply sharing our build experience.

Building Nightmare

Behind our building nightmare is a cowboy builder and his litigious wife who heads up the estate development company. How We Got Here gives the background to this saga.

Protecting the Home Consumer

We bought into a new estate believing we had all the necessary protections in place. The attorney-conveyancer was doing the legal work; the architect, engineer, NHBRC and the building contract were all in place protecting the home build. Little did we know that the protections were mere platitudes and ignored at will by the developer and builder.

As we do not live in the village where our eco house was built we were relying on the professionals being there each step of the way as we were told they would be.

However:

• The architect’s responsibility ended with submitting the plans to the municipality.
• He was never employed to supervise building and ensure the builder followed the approved plans.
• The developer failed to enrol the home build with the NHBRC.
• Without NHBRC enrolment we cannot apply for a mortgage to repair the house.
• The NHBRC never inspected the home build and therefore cannot guarantee the structure.
• The engineer signed off sections of the build without being there: he signed off the cellar drain without seeing it. Subsequently the cellar ended up under about 600mm water for months on end.

So who was looking after our interests?

The article Real Estate Partners by Millers Attorneys details the purposes of Act 95 and the protection offered to the home consumer by the NHBRC.

Ignoring the Building Agreement

To add to our building nightmare, the developer failed to comply with clauses in the Building Agreement.

Building commenced

• prior to transfer of the land and
• prior to obtaining the statutory approvals.

These two conditions are explicitly stated in the building contract and the NHBRC code of conduct.

Our post Property Scam tells of promises made and broken by the developer. The developer and builder flouted the law with impunity at every turn and hid the truth from us.

To make matters worse for us, the building agreement has no resile clause as is required by the Housing Consumer Protection Measures Act, Act 95 of 1998 . And this is an NHBRC registered builder we are talking about.

Resile Clause

The resile clause is one of the most important clauses in an agreement for the home consumer’s protection. A resile clause gives the you the right to terminate the agreement if certain conditions are not met. You may then return to your position prior to signing, as if the contract had never started.

With a resile clause we could have put an end to this house building disaster years ago. And an end to the nightmare.

Going to the High Court

The Litigation Nightmare Begins

If all that was not enough, things got significantly worse when this litigious developer went to the High Court to remove a bed. They preferred to start litigation rather than fix the house problems that they had created. Without fixing the problems the municipality would not issue an occupation certificate.

To quote Judge Marais, JA: “Who chooses to ride a tiger will find it difficult to dismount unscathed.” Has this developer and her legal team started a litigation nightmare that they now cannot stop? They have lost so many cases and have 9 costs orders against them. Surely they are not unscathed? But why do they continue?

See our posts on Frivolous and Vexatious Litigation and Here We Go Again.

House Building Disaster Perjury, Fraud and More

Our building nightmare has it all.

• The builder thinks he is a master builder
• The developer’s Facebook page calls him a master builder – which is misleading

But he is far from a master builder and is not registered as one. He is inept and incompetent, the epitome of a cowboy builder.

• The developer is vexatious and unethical with a special talent to bend the truth.
• Our post Perjury and Fraud and Misrepresentation gives examples of each of these criminal offences by the developer.

To make matters worse, the conveyancer has been reported to the Legal Practices Council Western Cape on numerous misconduct charges. She has a lot to answer for in this litigation nightmare as she has both enabled and benefited from the continuous legal battle.

• Her misconduct includes the serious offence of misappropriation of trust funds.
• Her most recent misdemeanour was to withhold vital information in a court hearing. 
• Ombudsmen and Professional Councils looks at professional councils and whether they are in fact protecting the public as they should.

Conclusion

​In an ideal world the builder, developer and home owner would work together to present the home owner with the home they planned and paid for. Unfortunately the home owner was naïve and trusting. He ventured into the unknown of building a new home on a new estate with a team whose only reference came from the estate agent.

The result has been trouble, big trouble.

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