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[2017] ZAWCHC 3
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Automated Office Technology (Pty) Ltd t/a Assetfin Financial Solutions v Bestmade 160 CC and Others (A123/2015; A124/2015) [2017] ZAWCHC 3 (17 January 2017)
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE DIVISION, CAPE TOWN)
APPEAL
CASE NOS: A123/2015 &
A124/2015
In
the matters between:
AUTOMATED
OFFICE TECHNOLOGY (PTY) LTD
t/a
ASSETFIN FINANCIAL SOLUTIONS
Appellant
and
BESTMADE
160 CC
First Respondent
SIMON
PETRUS
BASSON
Second Respondent
JOHANNES
STEPHANUS
BASSON
Third Respondent
JAN
GABRIEL
BASSON
Fourth Respondent
Coram
:
Mr Justice A Le Grange et Mr Acting Justice M Sher
Heard:
25 November 2016
Delivered:
17 January 2017
JUDGMENT
SHER
AJ:
[1]
We have
before us two matters, both of which are subject to an appeal and a
cross-appeal.
[1]
For the sake of
convenience the parties are referred to hereinafter as they are in
the appeals.
[2]
Second, third and fourth respondents are brothers and members of the
first
respondent, a close corporation through which they conduct
certain farming activities. It is common cause that between January
and April 2012 they signed a number of documents pertaining to two
rental agreements they concluded with the appellant; one for
a
so-called ‘PABX’ telephone system and one for a
photocopier. Included amongst such documents were
inter alia
rental finance applications, “
master”
rental
agreements with addendums thereto, acknowledgements of receipt of
equipment, and so-called ‘
guarantees’
in terms of
which they bound themselves as guarantors and co-principal debtors
for the obligations of the first respondent.
[3]
It is common cause that subsequent to the signing of these documents
a
PABX telephone system and a photocopier were delivered to the
respondents’ farm late in April and early May 2012
respectively,
and certain monthly instalments were paid by first
respondent until July 2012, when second respondent instructed the
bank to stop
payment. In October 2012 the appellant issued summons
against the respondents in respect of their alleged breach of the
aforesaid
agreements, in two separate matters in the magistrate’s
court for the district of Paarl. The matters came to trial some two
years later and were heard together.
[4]
On 19 December 2014 the magistrate found in favour of the appellant
in
the matter dealing with the PABX system and granted judgment in
its favour in the sum of R298 072.84, and dismissed the
appellant’s
claim in respect of the other matter. The appellant
subsequently lodged an appeal against the judgment and order granted
in respect
of the PABX matter and the respondents in turn lodged a
cross-appeal therein, and the parties similarly lodged an appeal and
a
conditional cross-appeal, in the other matter.
The
evidence
[5]
During October 2011 the respondents were interested in
acquiring
telephone, camera surveillance and employee ‘clock-in’
systems, as well as a colour photocopier. Their professional
assistant Christelle Strumpher (‘
Strumpher’
) duly
made contact with one Henry Kinghorn (‘
Kinghorn’
),
who ran an office equipment business known as Greenstar Office
Solutions (Pty) Ltd. Strumpher had previously worked with Kinghorn
for a few months during 2007 at Nashua, a well-known manufacturer of
photocopier machines. She requested Kinghorn to provide a
proposal
and quotation for the supply of the equipment the respondents were
interested in. As far as the photocopier was concerned
she asked
Kinghorn to quote on a Nashua-Ricoh machine, as she was familiar with
its products. At that time the respondents had
a black and white
photocopier on their farm and were looking for a colour machine that
could be used by their children for school
projects.
[6]
Kinghorn duly came out to the farm and spoke to second respondent
about
their requirements, and about a month later he provided an
estimated price for the equipment they sought, which was in the order
of R 400 000.00. Second respondent indicated that this was too
much for them whereupon Kinghorn suggested that they obtain
‘financing’. Second respondent agreed to this proposal.
[7]
Kinghorn had working relationships with a number of finance houses at
that time, including the appellant. As the appellant’s
operation manager Anton Nell (‘
Nell’
) explained,
where a customer is desirous of acquiring office equipment from a
supplier but does not have the necessary means to
do so the appellant
will assist by agreeing to purchase the equipment (which the supplier
will obtain from the manufacturer or
distributor), and by paying the
purchase price over to the supplier on delivery by it of the
equipment to the customer, who then
will pay off the appellant by way
of monthly instalments, in terms of a rental finance agreement it
enters into with it.
[8]
The appellant supplied Kinghorn with the necessary blank template
forms
which his customers were required to complete in order to
obtain finance. The paperwork included, in the first instance, a
so-called
‘
rental finance application’
in which
the party seeking finance was required to set out its details
(including its trading name and particulars of its shareholders,
partners, directors or members, as the case may be), as well as its
bank account details; and in which provision was also made
for the
insertion of the rental period and monthly instalments which would
become due in terms of the agreement which was to be
entered into.
[9]
It is common cause that Strumpher completed such a form in respect of
the PABX system on 5 January 2012, and on 20 March 2012
second respondent signed a typed version thereof. In addition,
on
20 March 2012 second respondent appended his signature in three
places on a so-called ‘
master rental agreement’
,
which similarly contained details of the first respondent and a
‘
resolution’
purporting to be an extract of the
minutes of a meeting of its members in terms of which they resolved
to enter into the “
rental”
agreement with the
appellant for the ‘
renting of goods’
as per the
‘
conditions of hire’
attached thereto, and at the
foot of which second respondent similarly appended his initials. A
so-called ‘
rental addendum’
(marked annexure ‘A’)
to the ‘master’ rental agreement was also signed or
initialled in two places by the
second respondent, on the self-same
date. In this document second respondent affirmed that the terms and
conditions of the ‘master’
rental agreement would apply
to the parties as if specifically set forth therein, and the addendum
also contained a similar resolution
stating that first respondent had
resolved to enter into the rental agreement with the appellant for
the renting of the goods specified
therein, which were described as a
Samsung OfficeServ PABX system. It may be pointed out that in
numerous places on this document
there was reference to the “
master
rental agreement”
and the monthly “
rental”
which was to be charged in terms thereof.
[10]
Second respondent also signed a further “
rental addendum
”
(marked annexure ‘B’
)
to the “
master
rental agreement”
which made provision for the insertion of
the insurance details (ie the insurance company, branch and policy
number) in terms of
which the equipment referred to was to be
insured.
[11]
Finally, second respondent appended his signature to a ‘
guarantee’
which declared that it was an addendum to ‘
all present and
future master agreements of hire and/or master rental agreements”
entered into between the appellant and the first respondent,
which was referred to therein as “
the hirer”’.
In terms of this guarantee second respondent bound himself
jointly and severally as co-principal debtor for the primary
continuing
obligations of the “
hirer
”, including
the due, proper and punctual payment by it of all amounts that might
be owing in terms of, or incidental to the
“
rental
agreements
” and addendums thereto. Third and fourth
respondents subsequently also signed this guarantee.
[12]
A complete set of similar documents was signed by second, third and
fourth respondents
in respect of the photocopier, on or about
23 April 2012.
[13]
The respondents testified that the circumstances under which the
aforesaid documents were
signed were as follows. As far as the bundle
of documents pertaining to the PABX system was concerned, these were
apparently signed
at an auction which the respondents attended and at
which Kinghorn made his appearance. He informed them that they needed
to sign
documents in connection with the ‘financing’
(“
finansiering”),
and these included a suretyship
(‘borgakte’
). They duly signed the documents that
were handed to them, in numerous places, without reading them. A few
weeks later Kinghorn
again made his appearance, one evening, at the
farm and similarly requested them to sign documents which he said
were in connection
with ‘financing’. Once again the
respondents happily acceded thereto without reading the documents.
The
law
[14]
It is a
trite and accepted principle of our law that a person who signs a
document is ordinarily taken to have assented to what
appears above
his signature.
[2]
This is known
as the
caveat
subscriptor
principle, which can be traced to the oft-cited decision in
Smith
v Hughes
[3]
where
it was explained that: “
If,
whatever a man’s real intention may be, he so conducts himself
that a reasonable man would believe that he was assenting
to the
terms proposed by the other party, and that other party upon the
belief enters into the contract with him, the man thus
conducting
himself would be equally bound as if he had intended to agree to the
other party’s terms.”
[15]
This
principle is said to be based on the doctrine of “
quasi-mutual
assent”,
[4]
and is predicated on an objective approach to the theory of contract
law ie that the law is concerned with the external manifestation,
and
not the inner workings of the minds of parties to a contract. So,
even where subjectively speaking consensus may be absent,
resort may
nonetheless be had to this so-called reliance theory to determine
whether a binding contract has come into being.
[5]
In effect what the law does in such matters is to say that a party
will ordinarily be held to an agreement he or she has signed,
even
though they may not have intended to bind themselves thereto
contractually, and even though they may not have read the document
containing the agreement before signing it.
An
evaluation: the law applied
[16]
During cross-examination the respondents freely conceded that by
completing and signing
the bundle of documents referred to and
submitting these to the appellant, they had created the impression
that they wished to
enter into the rental agreements, and as a
contracting party the appellant was entitled to rely thereon. The
respondents’
defence was that they signed the documents by
mistake or, as it is more properly referred to, in error, as they
thought that the
documents were required in order to obtain financing
for the purpose of purchasing the equipment in question and not for
the rental
thereof.
[17]
The
Appellate Division has held that a party is only allowed to rely on
his own mistake or error in attempting to resile from a
contract he
has feely signed, in certain limited circumstances.
[6]
Such an error would, at least, have to be reasonable ie
justus
.
[7]
In the
locus
classicus
of
George
v Fairmead (Pty) Ltd
[8]
Fagan CJ set out the circumstances in which a party may be entitled
to rely on an error as being
justus,
in the following terms:
‘
When can error
be said to be
justus
for the purpose for entitling a man to
repudiate his apparent assent to a contractual term? As I read the
decisions, our Courts,
in applying the test, have taken into account
the fact that there is another party involved and have considered his
position. They
have, in effect, said: ‘Has the first party (the
one who is trying to resile) been to blame in the sense that by his
conduct
he had led the other party, as a reasonable man, to believe
that he was binding himself?...If his mistake is due to a
misrepresentation,
whether innocent or fraudulent, by the other
party, then, of course, it is the second party who is to blame and
the first party
is not bound.’
[18]
Given the
authorities I have referred to, the respondents correctly conceded
that in order to avoid being held to the contracts
in question they
needed to prove that they had been induced into entering into them on
the basis of a misrepresentation on the
part of the appellant, and it
would not be sufficient for them to simply say they had signed the
agreements by mistake. The respondents
also fairly and properly
conceded that the onus in this regard (ie to establish a
misrepresentation on the facts before us) lay
on them,
[9]
and conversely, there was no obligation on the appellant to show that
it had not misled the respondents in any way.
[19]
It was
further common cause that inasmuch as the appellant itself and none
of its employees (including its operations manager Nell
and Liezel
Rogers the clerk who processed the rental finance applications and
the documents the respondents completed), had ever
dealt directly
with the respondents, in order to succeed the respondents needed to
establish that Kinghorn had acted as an agent
on behalf of the
appellant. The reason for this is because it was held in
Slip
Knot Investments
[10]
that a person who is induced to sign an agreement with a finance
provider
[11]
as a result of a
misrepresentation made by a third party, will nonetheless be held to
the agreement if the finance provider was
innocent and unaware of the
signatory’s mistake. In accordance with the general principles
outlined above the finance provider
would in such a case be entitled
to rely on the appearance of consensus created by the signature, and
the signatory would not be
entitled to set up his unilateral mistake
in order to avoid liability under the agreement.
[20]
I am not so sure that on the evidence before us it was established
that Kinghorn was indeed
an agent of the appellant in regard to the
conclusion of the agreements referred to. But, for the purposes of
this matter I am
prepared to assume that he was. In this regard it
appears that he had templates for the documents in question which
allowed him
to print them and to fill in the blank spaces thereon,
including the spaces that dealt with items such as the instalments,
the
rental period, the names and details of the respondent parties
and the equipment. He was also reflected on the rental finance
application
form as being the ‘
salesperson’,
and
he presented the bundle of documents required (in order to make
application for finance) to the respondents, on behalf of the
appellant, and after the documents had been completed he delivered
them to the appellant together with the supporting documentation
and
financial information it required.
[21]
The
principal difficulty which I have is whether on the evidence before
us the respondents succeeded in proving that a misrepresentation
had
been made by Kinghorn.
[12]
In
this regard it appears that second respondent was the only one who
had any dealings directly with him.
[22]
He testified that, during a discussion they had in March 2012 (when
he was informed that
the estimated cost of the equipment would be in
the region of R400 000) he told Kinghorn that they did not have
the money
to buy the equipment and in response Kinghorn offered to
try and arrange ‘
financing’
.
[23]
Although second respondent and some of the other respondents
testified that, had they known
that Kinghorn was proceeding to obtain
quotations for rental financing as opposed to financing in order to
enable them to purchase
the equipment in question, they would never
have entered into the agreements, it was never suggested by them in
their evidence
that this was ever made clear to Kinghorn, nor was
there any indication of any discussion in this regard having taken
place prior
to the documents having been signed. It is thus quite
conceivable that when he was told that the respondents were unable to
afford
purchasing the equipment, Kinghorn sought to obtain rental
financing for them instead.
[24]
It also appears that at the time when the documents were put before
the respondents for
signature they were simply informed by Kinghorn
that this was for the purposes of ‘financing’, a
statement which was
factually correct, and it was common cause that
there was no discussion on the point and the respondents simply
proceeded to sign
the documents without reading them. To my mind, it
is improbable in the extreme that, had the respondents made it clear
to Kinghorn
that they wished to obtain finance in order to
purchase
the equipment concerned and that they were not interested in an
agreement in terms of which they would obtain financing in order
to
simply
rent
it, Kinghorn would not have attempted to source
such form of financing. Either way it would have made no difference
to him, as he
would still have been compensated.
[25]
At best for the respondents it seems as if there may have been a
possible miscommunication
between them and Kinghorn as to what they
had in mind in regard to the nature of the ‘financing’
which was to be obtained
but, in my view, this was a far cry from
establishing that Kinghorn made any misrepresentation to them in this
regard, nor was
it pleaded that the parties had laboured under any
form of common or mutual mistake as far as this aspect was concerned.
And of
course, if one has regard for the documents themselves it is
abundantly plain that any reasonable person who made an effort to
look at what he was signing would, and should, have seen that they
pertained to rental agreements and not to agreements of purchase.
[26]
To this one must also add the evidence of the second respondent in
regard to the circumstances
which led to him cancelling the debit
orders. When he was asked, in evidence in chief, whether he would
have signed the documents
if he knew what their true contents were he
answered in the negative but then, somewhat surprisingly, when asked
why not, said
it was because Kinghorn had told him that it would not
cost them more than R 5000 per month by way of instalments. Thus, he
did
not say that he would not have signed the documents if he knew
they were rental agreements as opposed to purchase agreements- it
was
only the amount of the instalment that was the problem for him. And
more illuminating, when asked why the debit orders were
cancelled at
the end of June, he said this was because the cameras and the
clocking system had not been installed yet by that time.
[27]
During June 2012 second respondent also consulted an attorney, who
subsequently addressed
a letter to the appellant on 26 June 2012
in which he set out the grounds why, in his view, the rental
agreements which had
been entered into were void and unenforceable
and had led to second respondent taking steps to cancel the debit
orders.
[28]
These
reasons, at least according to the letter, were firstly that on both
occasions when Kinghorn required the respondents to sign
the
documents they did not have an opportunity to read them before doing
so. No such evidence was ever tendered by any of the respondents
and
it was apparent from their evidence that, had they wanted to read the
documents they would have had ample time to do so. In
the second
place it was averred that inasmuch as the rental agreements were
credit agreements in terms of the National Credit Act,
[13]
the appellant had failed to comply therewith by failing to conduct a
prior assessment of the respondents’ creditworthiness,
and had
failed to provide second respondent with a ‘pre-agreement
statement and quotation’ before the agreements were
concluded.
It was also alleged that the agreements were invalid because, whereas
they purported to suggest that second respondent
had received certain
goods and services, performance had been defective
in
that a number of security cameras had not been supplied or installed
(my
emphasis). No reference was made in the letter to the central element
of the respondents’ later defence ie that Kinghorn
had induced
the respondents to enter into the agreements by means of a
misrepresentation, pertaining to the essential nature of
the
agreement itself. In fact, from the terms of the letter it appears to
have been accepted that the agreements had been consciously
entered
into between the parties on the basis that they constituted
rental
agreements, and no issue was taken therewith.
[29]
In the result, the respondents failed, in my view, to prove that
there was any misrepresentation
which induced them to enter into the
agreements in question and this defence must fail. The obvious
corollary to such a finding
is that on the basis of the
caveat
subscriptor
principle and the doctrine of quasi-mutual assent the
respondents must be held to be bound to the documents which they
signed.
In his judgment the magistrate thus erred in finding that the
appellant was responsible for a misrepresentation which was made
fraudulently by Kinghorn (whom he described as a third party) and he
also erred in finding that the
caveat subscriptor
principle
was not of application because it could not be ‘applied
rigidly’ in the circumstances.
[30]
Notwithstanding the finding which he arrived at that ie there had
been a fraudulent misrepresentation
by a third party which vitiated
the contract, the magistrate proceeded to find, nonetheless, that
although no enforceable contract
had come into existence it had
subsequently been “
cancelled
” by the respondents
but, because they had continued to make use of the PABX telephone
system for more than 2 years thereafter
they had created the
impression that the rental agreement was ‘ratified’
(“
geratifiseer”)
. As a result he held that ‘
deur
die skynbare aanvaarding van die kontrakterme deur voort te gaan om
in terme van die huurooreenkoms op te tree, word eerste
verweerder
gebonde gehou daaraan met uitsluiting van individuele borgstellings
van tweede, derde en vierde verweerders’.
What the
magistrate was purporting to say in terms of these remarks is not
entirely clear to me, and neither of the parties’
counsel were
able to shed any light thereon. The finding that notwithstanding that
no agreement came into existence first respondent
somehow ‘ratified’
it by its subsequent conduct in accepting the PABX system and making
use of it was, with respect
to the magistrate, not a proper and
competent finding in law and I am not aware of any authority which
supports it.
[31]
As far as the agreement in respect of the photocopier is concerned
however, notwithstanding
that by appending their signature thereto
the respondents would ordinarily be held bound to it on the basis of
the doctrine of
quasi-mutual assent, this doctrine only finds
application where a party whose actual intention does not conform to
the common intention
expressed on the papers, labours under a
unilateral
mistake or misapprehension. Where however the
common intention as expressed in the documents constituting an
agreement evidences
a common ie mutual mistake on the part of both
parties, not only is there no consensus present, but also no basis
for seeking to
hold the resiling party to the contract on the grounds
that he or she has brought the other party under the wrong
impression.
[32]
According to the evidence which was tendered by the respondents and
which was not challenged
by the appellant, second respondent had made
it clear to Kinghorn via Strumpher that what was required was a
colour photocopier
from Nashua/Ricoh and not a black and white
photocopier from Canon. The documents however mistakenly referred to
a Canon photocopier,
and also failed to stipulate that it was to be a
colour photocopier.
[33]
Consequently, when a black and white photocopier was delivered the
respondents immediately
complained and Strumpher arranged for
Kinghorn to come to the farm that Friday to discuss the matter. The
uncontested evidence
of Strumpher was that following his vist
Kinghorn undertook to rectify the malperformance ie the delivery of
the wrong photocopy
machine, but before he could do so he was
unfortunately fatally injured in a motor vehicle accident which took
place over the intervening
week-end. Although Rogers claimed that
Strumpher had subsequently confirmed on 25 April 2012 that the
photocopier had been installed
and was in working order, Strumpher
strenuously denied this, and the respondents produced a series of
photographs in evidence which
showed the photocopier still wrapped in
bubble cling-wrap, which they said was the condition in which it was
delivered. Although
one of the photographs shows that the photocopier
has a sticker on it from Smart Installation, the company which was
supposed to
do the installation, no evidence was led to the effect
that an installation in fact occurred, and the respondents’
evidence
during the trial that the photocopier was still standing,
unused, in the same condition in which it had been delivered a few
years
before was never controverted.
[34]
In the circumstances it is apparent that the goods which were
actually agreed upon and
which were to be supplied in terms of the
rental agreement were not delivered to the respondents. Nell
testified that the appellant
would only be liable to pay the supplier
in respect of a rental agreement once it was satisfied that due and
proper performance
in terms of the agreement had taken place ie that
the correct equipment had been supplied to the customer, and if there
was a mistake
in this regard they would ensure that the supplier
rectified it and complied with its obligations in terms of the
agreement before
it would be paid by the appellant. In the
circumstances, on the evidence before us it was not open to the
appellant to suggest
that it was entitled to expect performance by
the respondents (of their duty to make payment in terms of the
contract), as the
supplier had not complied with its obligations. I
am not aware of any authority in terms of which, despite the defence
of
exceptio non adimpleti contractus
being available to a
contracting party who wishes to resile from an agreement, it should
be disentitled from doing so on the basis
of the doctrine of
quasi-mutual assent.
[35]
On the facts before us it is plain that there was a mistake common to
both parties and
not a unilateral mistake on the part of the resiling
party. The respondents attempted, as a fall-back position, to rely on
the
doctrine of estoppel and urged us to hold that the respondents
were to be estopped from denying that there was due and proper
compliance
with the terms of the contract, by the supplier.
Respondents pointed out that the appellant was an innocent party who
had relied
bona fide
on the acknowledgement of receipt it had
received, and the apparent regularity of the documents which had been
signed by the respondents.
[36]
In my view the balance of probabilities in regard to the evidence
pertaining to delivery
rather lies in favour of the respondents,
given the evidence of Strumpher and the evidence that the photocopier
is still standing
in the original bubble cling-wrap in which it
arrived. In my view such evidence demonstrates that it would have
been impossible
for the machine to have been installed by Smart
Installation and any incorrect impression or perception which was
created in this
regard, as far as the appellant was concerned,
emanated from the actions of its own employee (Rodgers) and not from
the conduct
of the respondents.
[37]
In the circumstances this is in my view not a matter where the
principles of estoppel can
find application. Estoppel is
traditionally applicable in instances where it is alleged that a
party acted without the necessary
authority, but in circumstances
where it gave out that it, or its servant, ostensibly was entitled or
authorised to so act, and
it is a mechanism whereby such a party will
be estopped from denying the existence of such ostensible authority.
The
quantum
[38]
As far as the
quantum
is concerned the magistrate did not
explain in his judgment how he got to the amount of R298 072.84
in respect of the claim
pertaining to the PABX system and both
parties’ counsel were
ad idem
that it was plainly wrong.
[39]
During the course of the trial in 2014 the respondents presented the
evidence of an actuary,
which was directed at proving what the
discounted, present-day value of the appellant’s claim for
future loss was at that
time.
[40]
In this regard clause 7 of the PABX rental agreement provided that in
the event that first
respondent breached the terms of the agreement
by failing to pay any amount which was due and owing in terms
thereof, the appellant
would have the right to “
treat as
immediately due and payable all rental which would otherwise become
due and payable
” in terms of the agreement “
over
the then unexpired hire period, and claim and recover….forthwith
the aggregate amount of such charges as well as all
other charges
then in arrears
”.
[41]
As such, clause 7 was a so-called ‘acceleration’
clause, in terms of
which in the event of a breach of the agreement
first respondent would become liable not only for the appellant’s
past loss,
but also for all future rentals it would have been paid,
in due course, as its future loss.
[42]
The basis
for leading the actuarial evidence was that inasmuch as the
provisions of clause 7 of the rental agreement constituted
a penalty
stipulation in terms of the provisions of the Conventional Penalties
Act
[14]
it would be unfair to
the respondents and disproportionate to the appellant’s actual
prejudice to allow it to obtain the
full value of its future rental
instalments which would, had the agreement been honoured, been
devalued by the effects of inflation
over the course of time. In the
result, what the respondents sought to do was to allow the appellant
only to claim the net discounted
value of the future rentals.
[43]
The rental agreement for the PABX is to endure for a period of 6
years from 23 March
2012 ie until 22 March 2018. Nell
testified that the appellant’s profit in respect of this
agreement would only start
to accrue in the 44
th
month
after its inception ie at the end of November 2015, at which point
the appellant would ‘break even’. Given these
circumstances and given that the contract has little more than a year
and three months left to run the parties were agreed that
the bulk of
the appellant’s loss to date, some four and a half years down
the line, constitutes an actual incurred past loss
and it would thus
not be correct to discount this loss, nor would it be
disproportionate or unfair in the circumstances to award
the
appellant not only the
quantum
of such past loss but also the
remaining balance of the contract in respect of the future rentals
until March 2018, in lieu of
its future loss, without discounting
such loss to present-day values. The parties were also agreed that
the value of such past
and future loss combined, as at the date of
the hearing of the appeal, was the amount set out in para 147.1 of
the appellant’s
heads of argument.
[44]
Finally, the parties were further agreed that in the event that we
were minded to find
in favour of the appellant in respect of the
quantum
of the claim pertaining to the PABX system and in
favour of the respondents in respect of the merits of the photocopier
matter,
both parties would have achieved substantial success on
appeal and the fairest order to make in such circumstances would be
that
each party should be liable for its own costs on appeal
(including the cross-appeals).
Conclusion
[45]
In the result I would propose the following Order:
1.
The
appeal in matter no. A124/15 (ex Paarl 4785/12) is upheld and the
cross-appeal is dismissed.
2.
The
judgment granted by the court
a quo
in matter
no. 4785/12 is set aside and substituted with the following order:
‘
Judgment is
granted against first to fourth respondents (jointly and severally
the one paying the other to be absolved), as follows:
(a)Payment of the
sum of R339 814.42;
(b)
Interest on the aforesaid amount at the prescribed rate
a tempore morae
to date of final payment;
(c)Costs of suit on
the scale as between attorney and client.’
3.
The
appeal and conditional cross-appeal in matter no A123/15 (ex Paarl
4783/15) are dismissed.
4.
Each
party shall be liable for their own costs in respect of the appeals
and the cross-appeals.
SHER,
AJ
I
agree, and it is so ordered.
LE
GRANGE, J
Appearances
:
For
the appellant
: Adv P Botha (assisted by Adv G Hayward)
Instructed
by
: Kinniburgh & Associates, Cape Town
For
the respondents
: Adv W P Coetzee
Instructed
by
: Visagie Vos & Partners, Goodwood
[1]
In the matter under case no. A 123/15 (ex Paarl 4783/15) the
cross-appeal is conditional on the appeal succeeding.
[2]
Brink
v Humphries and Jewell (Pty) Ltd
2005 (2) SA 419
(SCA) at para [1].
[3]
(1871) L R 6
QB 597 at 607.
[4]
Brink
n
1 para [2].
[5]
Sonap
Petroleum (SA) (Pty) Ltd v Pappadogianis
[1992] ZASCA 56
;
1992 (3) SA 234
(A) at 234J;
Ridon
v Van der Spuy and Partners (Wes-Kaap) Inc
2002 (2) SA 121 (C).
[6]
National
and Overseas Distributors Corporation (Pty) Ltd
v
Potato Board
1958
(2) SA 473
(A) at 479G-H.
[7]
Sonap
Petroleum (SA) (Pty) Ltd v Pappadogianis
[1992] ZASCA 56
;
1992 (3) SA 234
(SCA) at 239E.
[8]
1958 (2) SA 465
(A) at 471B-E.
[9]
Stellenbosch
Farmers’ Winery Ltd v Vlachos t/a Liquor Den
2001
(3) SA 597
(SCA) at para [4].
[10]
Slip
Knot Investments 777 (Pty) Ltd v Du Toit
2011 (4) SA 72
(SCA) at paras [9] and [12].
[11]
I
n
casu
a
suretyship.
[12]
See
ABSA
Technology Finance Solutions (Pty) Ltd v Thando Funeral Service CC &
Ano
[2014]
ZAGPJHC 94 at para [15].
[13]
Act 34 of 2005.
[14]
Act 15 of 1962.