Scheibert v Allen

Mr Scheibert sold immovable property in Oranjezicht, Cape Town, to Mrs Allen for R7 375 000. In an addendum to the sale agreement, he warranted that all alterations and improvements had been approved by the City of Cape Town. After transfer, Mrs Allen discovered that a kitchen in a flatlet on the property had not been approved and rendered the property a double dwelling in breach of zoning and title deed restrictions. Faced with either applying for removal of the restriction or removing the kitchen, Mrs Allen chose to remove it and sued Mr Scheibert for damages for breach of warranty, alleging diminution in the property’s value and associated costs. Mr Scheibert admitted the breach but denied that Mrs Allen had suffered any loss, contending that the purchase price was below market value and that no diminution had occurred.

The appeal was upheld with costs, including the costs of two counsel. The order of the High Court was set aside and substituted with an order dismissing the plaintiff’s claim with costs.

The case reaffirms that in South African contract law, a plaintiff claiming damages for breach of warranty must prove actual loss, typically by demonstrating a diminution between purchase price and market value. It underscores that a breach alone does not justify an award of damages and clarifies the evidentiary burden in property valuation disputes before courts.