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[2021] ZAWCHC 138
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Courier-It S.A (Pty) Ltd v Frankees (Pty) Ltd and Another (17044/2020) [2021] ZAWCHC 138 (8 July 2021)
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Certain
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IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE DIVISION, CAPE TOWN)
Case
No: 17044/2020
In
the matter between:
COURIER-IT
S.A. (PTY)
LTD
Applicant
(Registration
Number 1998/010351/07
and
FRANKEES
(PTY) LTD
First Respondent
(Registration
Number 2015/235687/07)
TIMOTHY
JOHN WHITEHEAD
Second Respondent
(Identity
Number [….])
Date
of hearing: 15 June 2021
Date
of Judgment: Delivered electronically on 8 July 2021
JUDGMENT
Nuku
J
[1]
This is an application in which the
applicant seeks payment of the sum of R204 185.12 together with
interest and costs of suit from
the first and second respondents
("the respondents").
[2]
The applicant's claim as against the
first respondent is in respect of courier and transportation services
("the services")
rendered
by the applicant to the first respondent at the latter's special
instance and request pursuant to a written agreement
("the
agreement”)
concluded between
the parties. It is alleged that the first respondent has failed to
pay for the services and as a result thereof
it is indebted to the
applicant in the sum of R204 185.12.
[3]
The applicant's claim as against the
second respondent is based on a written deed of suretyship
("the
deed of suretyship")
signed by
the second respondent binding himself as a surety and co-principal
debtor with the first respondent and in favour of the
applicant for
the due fulfilment of the first respondent's obligations as
stipulated in the agreement. The amount of R204 185.12
is claimed
against the second respondent on account of the alleged failure of
the first respondent to pay for the services referred
to in the
preceding paragraph.
[4]
The respondents oppose the
application on three grounds. These are that:
(a)
the relief sought by the applicant is
based on hearsay
("the hearsay
ground”);
(b)
the applicant's claim and entitlement to
payment has been compromised
("the
compromise ground”);
and
(c)
there are material disputes of fact
which cannot be resolved by way of motion proceedings and that the
applicant was aware or ought
to have been aware of these material
disputes of fact prior to launching the application
("the
material disputes of fact ground”).
[5]
The applicant conducts the business of courier and transportation. On
19 January 2018, the
applicant concluded the agreement with the first
respondent. The agreement required the applicant to render services
to the first
respondent. The agreement required the first respondent
to pay the applicant for the said services within 30 days from the
date
of invoice failing which interest calculated at the rate of 5%
above the maximum rate of interest
a
tempora morae
would be charged on
late payments.
[6]
The agreement afforded the
first respondent a right to query the applicant's invoices within 15
(fifteen) business days from the
date of invoice, failing which such
invoices that have not been queried would be deemed to be correct in
all circumstances. The
agreement also entitled the applicant, in the
event of default by the first respondent, to rescind or suspend
performance of any
of its obligations to deliver a consignment. The
agreement also provided that the first respondent would be liable for
all costs
incurred by the applicant in the recovery of any amount not
paid by the first respondent on a scale as between attorney and own
client including collection commission as well as costs of counsel on
brief.
[7]
On 19 January 2018, and in
terms of the deed of suretyship, the second respondent bound himself
as a surety and a co-principal debtor
with the first respondent in
favour of the applicant for the due fulfilment of the obligations of
the first respondent as stipulated
in the agreement. The second
respondent also renounced the benefits of excussion, division and
cession of action.
[8]
Subsequent to the signing of
the agreement and the deed of suretyship, the first respondent made
use of the applicant's services.
The applicant, in turn, and from
time to time rendered certain invoices to the first respondent. The
first respondent did not query
any of these invoices within the 15
(fifteen) day period referred to in the agreement.
[9]
From about March 2020, a
number of emails were exchanged between the applicant's
representatives and the first respondent's representatives
regarding
the first respondent's indebtedness to the applicant. It is not my
intention to set out all of these emails. These emails
show that on 9
March 2020, Ms Lovisa Terling (
"Ms
Terling'')
of
the first respondent enquired from Ms Amber van der Walt ("Ms
van der Walt”)
of
the applicant about the outstanding amount owed by the first
respondent to the applicant. Ms van der Walt responded on the same
date advising that a sum of R199 992.47 had been outstanding for more
than sixty days. She (Ms van der Walt) also advised that
she would
request Mr Chad Johnson
("Mr
Johnson" )
who was a debtors'
clerk of the applicant to provide Ms Terling with the latest
statement.
[10]
On 10 March 2020, Mr Johnson
provided Ms Terling with the latest statement. The amount outstanding
in terms of the latest statement
as provided by Mr Johnson, was more
than the amount which Ms van der Walt had relayed Ms Terling. This
difference in the amounts
was, however, explained by Ms van der Walt
to Ms Terling to the latter's satisfaction. Having been satisfied
with the explanation
Ms Terling then requested sometime to consider
the statement. With some reluctance, the applicant afforded the first
responded
until 18 March 2020 to effect payment.
[11]
The first respondent made no
payment on the 18
th
March 2020. On 20 March 2020, Ms Nicolette Furness ("Ms
Furness")
of
the applicant sent an email to the first respondent enquiring about
payment of the outstanding amount. Ms Terling responded on
the same
date advising that she was still working on the matter and would
revert as soon as possible. To this Ms Furness responded,
still on
the same date, with an email demanding immediate payment of the sum
of R160 000.00. Mr Dale Smiedt
("Mr
Smiedt”)
of the first
respondent, responded to the email from Ms Furness on the same date.
Mr Smiedt bemoaned the fact that the applicant
had provided the first
respondent with 20 000 lines of information, that the statement
provided made no sense as it did not match
the first respondent's
records, and advised that the applicant could proceed with a summons.
Ms Furness responded to Mr Smiedt's
email requesting him to send her
the reconciliation that the first respondent had done thus far.
[12]
On 23 March 2020, Mr Smiedt
emailed Ms Furness requesting a statement showing all the payments
made by the first respondent. On
the same day, Mr Johnson provided Mr
Smiedt with a copy of the ledger in respect of the first respondent's
account from the inception.
Mr Johnson also indicated that the first
respondent's account would be placed on hold. Mr Smiedt responded on
the same day advising
that the information provided was unhelpful and
requested a list of all the payments received by the applicant from
the first respondent.
Mr Johnson provided the requested information
on the same day.
[13]
On 25 March 2020, Mr Smiedt
emailed Ms van der Walt acknowledging that the applicant had
unilaterally decided to place a hold on
the first respondent's
account, that the applicant would not allow the first respondent to
collect the goods and that the first
respondent would hold the
applicant liable for damages incurred, the amount of such damages
which would be deducted from the amount
owed by the first respondent
to the applicant.
[14]
On 30 March 2020, Ms Delia
Talliard of the applicant emailed Mr Smiedt requesting confirmation
that payment would be made on 31
March 2020. There was no response to
this email and no payment was made on 31 March 2020.
[15]
On 30 April 2020, Mr Johnson
emailed Mr Smiedt enquiring how he (Mr Smiedt) would like to have the
matter resolved. Mr Smiedt responded
on 4 May 2020 requesting the
applicant's banking details and also indicated that the first
respondent intended to make a payment
in full and final settlement.
Mr Smiedt also advised that the first respondent would provide the
applicant with the first respondent's
calculations simultaneously
with the payment.
[16]
On 8 May 2020, Mr Smiedt
emailed Ms Talliard and it is necessary to quote the contents of this
email which read:
"Please note that we have
come to the following decision referring to the attached account
statement,
1.
We do not believe that we owe you
the +-R250,000 claimed in that your accounts department has never
correctly allocated any of the
payments that we have made from
inception to date.
2.
We believe that you have
overcharged us on thousands of deliveries.
3.
You have caused us significant
damage, some of which is intangible and some of which is tangible. We
are aware of at least +-R75,000
of damage suffered by you holding on
to our deliveries (which amounts to theft). We have written off these
deliveries and refunded
customers including providing them with
discounts on future purchases to keep them aligned. Naturally, we
have lost customers as
a result of this and that damage is still
being quantified.
4.
As a result of the above, we are
terminating our agreement with you and offering you R50,000 in full
and final settlement of any
claims that either party may have against
the other arising out of any
cause
whatsoever, which amount
has
already been paid to you and can be
found attached hereto with this proof of payment.
5.
Please note that payment
was
made by another company in our group
of companies, Brand Mash Pty Ltd, however can be refunded to Frankees
pty Ltd, details below,
if you disagree with our settlement offer."
[17]
There was no response to the
above email until 7 September 2020 when Mr Johnson emailed Mr Smiedt
requesting a detailed remittance
for the payment of R50 000 as well
as queries pertaining to the outstanding balances. Mr Johnson also
advised that upon receipt
of the requested information, the applicant
would do its reconciliation and thereafter revert to the first
respondent regarding
the settlement amount. There does not appear to
have been any response to this email. Instead, on 17 September 2020,
the applicant's
attorneys sent letters of demand to the respondents
demanding payment of the sum of R204 185.12.
[18]
Smiedt and
Associates attorneys responded on behalf of the first respondent by
way of a letter dated 18 September 2020. In the said
letter it was
denied that the first respondent was liable to the applicant. The
basis of the first respondent's denial of liability
appears in
paragraphs8, 9, 10 and 11 of the said letter which read:
"8.
On 8 May 2020, our client addressed further correspondence to your
client explaining
that it was making a payment of R50, 000 to your
client in full and final settlement of any claim your client may have
against
it and further explained the reasons as to why it was making
such payment, as per annexure D. Further, in the very same letter,
our client explicitly stated that if your client rejected the offer,
it should repay our client the R50, 000 and further provided
banking
details for such payment.
9.
Your client then next contacted
our client on
7
September
2020 asking for a detailed remittance of the R50, 000 payment and
"once we have reconciled, we will revert with feedback
regarding
settlement amount" attached hereto as annexure "E".
10.
Your letter of demand clearly
shows that payment of R50,000 having been accepted by your client as
originally your client claimed
R254 185,12, which our client submits
could only have been accepted in full and final settlement of the
alleged claim.
11.
It is further clear that your
client has accepted the amount as to date it has not been refunded
and even if it were to be refunded
it would not change the fact that
your client had in fact accepted our client's full and final
settlement proposal. Quite clearly,
as a result of your demand but
also as a result of the almost
5
months that have gone by since our
client made payment in full and final settlement, the proposal was
accepted'' .
[19]
The respondents'
attorneys of record responded on behalf of the second respondent on
29 September 2020. In their letter they also
denied that the second
respondent was liable to the applicant. The basis of the second
respondent's denial of liability was also
stated in similar terms as
those of the first respondent referred to in the preceding paragraph.
[20]
For completeness
I mention that Annexure "D", referred to in both the letter
from Smiedt and Associates dated 18 September
2020, and the letter
from the respondents' attorneys of record dated 29 September 2020, is
the email of 8 May 2020, the contents
of which appear in paragraph
[16] above. Annexure "E" is the email of 7 September 2020
referred to in paragraph [17]
above. Impasse having been reached the
applicant launched the current application.
[21]
It is against
the above factual background that this court must consider whether
the applicant is entitled to the order sought,
or whether the
application falls to be dismissed on any of the grounds of opposition
put up by the respondents. I deal first with
the hearsay ground.
[22]
The deponent to
the answering affidavit indicated that a point
in
limine
would be
raised on the basis that the application is based on hearsay
evidence. This was based on the fact that the deponent to
the
founding affidavit is Mr Stephan Van Der Meer
("Mr
Van Der Meer”),
the
sole director of the applicant's attorneys of record. In this regard
the complaint was, as Mr Van Der Meer is not an employee
or the
director or a shareholder of the applicant, he has no personal
knowledge of the facts to which he deposed to. The deponent
concluded
by stating that
"
Further argument will be addressed at the hearing of the matter.
Based on these submissions, it will be argued that the application
should be dismissed on this
basis
alone."
[23]
The hearsay
ground was not pursued with much vigour in both the respondents'
written and oral submissions. I start first with the
respondents'
oral submissions. No oral submissions were made during the hearing of
the matter in pursuance of the hearsay ground.
Also, no argument was
made for the dismissal of the application based on the hearsay
ground. This despite what was stated in the
answering affidavit that
further argument would be addressed at the hearing of the matter.
[24]
Turning to the respondents' heads of
argument, the respondents merely bemoaned the fact that the
applicant's papers are characterised
by an unusual feature in that
they are deposed to by Mr Van Der Meer who was no personal knowledge
of the matter and, more particularly,
the facts around the compromise
of the applicant's claim.
[25]
I did not get
the impression that the respondents sought to have the application
dismissed on the basis that the applicant's founding
and replying
affidavits were deposed to by Mr Van Der Meer. The submission, as I
understand it, is that on the critical question
as to whether the
applicant's claim was compromised, the matter ought to be determined
on the basis of the evidence presented by
the respondents for the
reason that the applicant presented inadmissible hearsay evidence by
Mr Van Der Meer.
[26]
The applicant conceded that Mr Van
Der Meer does not have personal knowledge of the facts prior to the
17
th
September 2020. The applicant, however, argued that the facts
relevant to the determination of this matter are undisputed and/
or
have been admitted by the respondents.
[27]
It is common cause that Mr Van Der
Meer has no personal knowledge of the events prior to the 17
th
September 2020. It is also common cause that the purported offer of
compromise was made prior to the 17
th
September 2020, and that the events relied upon by the respondents as
indicative of the fact that the first respondent's offer
of
compromise occurred prior to 17th September 2020.
[28]
As can be seen from the exposition
of the facts above, the determination of this matter turns on the
interpretation of the correspondence
exchanged between the parties.
None of the correspondence exchanged is disputed. It is in regard to
that correspondence that the
court must determine whether the
applicant's claim was compromised and that correspondence speaks for
itself. That being the case,
there could be no basis for the
dismissal of the application based on the hearsay ground. I deal next
with the material disputes
of fact ground.
[29]
The material dispute of fact ground
was pleaded with reference to the email of 8 May 2020 wherein the Mr
Smiedt had written that
he does not believe the first respondent is
indebted to the applicant in the amount of ±R250 000, as the
applicant had not
correctly allocated payments, had overcharged on
"thousands of deliveries and the
applicant, in refusing to release the first respondent's orders had
caused the first respondent
tangible and intangible damage in the
sum
of not
less
than R75 000."
[30]
The material
disputes of fact ground also received a passing remark in the
respondents' heads of argument. In this regard paragraph
8 of the
respondents' heads of argument states that:
"The
second unusual feature of the matter is the fact that the applicant
has ignored an obvious dispute of fact in seeking
a
money judgment on
motion. A consideration of the application papers reveals
a
clear dispute
between the parties as to whether the claim was compromised. A
resolution of this dispute requires
a
determination by
this Court as to the respective parties' animus and conduct. While
ultimately the question will be one of interpretation,
it is rare it
is submitted, that such
a
question can be
decided without reference to viva-voce evidence."
(footnote
omitted). The submission goes further that the applicant, despite
being aware of the said dispute of fact, it elected
to proceed on
motion and that if the court is unable to determine the matter in
favour of the respondents, it should dismiss the
application.
[31]
During argument
counsel for the respondents also made it clear that the material
dispute of fact relied upon by the respondents
relates to the
question whether the applicant's claim had been compromised. Indeed,
this appears to be in line with what is stated
in the respondents'
heads of argument that:
"Notwithstanding
that it was manifest prior to the launching of this application that
the essential issue in dispute was whether
the applicant's claim had
been compromised, this received no more than
a
passing reference
in the founding papers "
[32]
From the above it became
clear that the central issue relates to the compromise and not so
much whether the first respondent had
disputed the amount/s charged
by the applicant in respect of the services. To the extent that this
is at variance with the pleaded
material disputes of fact ground, I
must accept that the respondents abandoned their reliance on fact
that the first respondent
had disputed the amount/s charged by the
applicant.
[33]
Simply put, the respondents'
case is that the compromise extinguished their indebtedness to the
applicant. And, to the extent that
the applicant disputes the
compromise, this is a dispute of fact which must be determined in
favour of the respondents in which
event the application ought to be
determined. That being the case, it appears to me that the material
disputes of fact ground is
not a stand-alone ground but is tied to
the compromise ground. It is thus not dispositive of the matter on
its own but should be
considered together with the compromise ground
to which I now turn.
[34]
Counsel for both
parties were in agreement that the respondents bear the
onus
of proving the
compromise. This is in line with what was stated by this court in
Hubbard v
Mostert
[1]
("the
Hubbard Judgment”),
that:
"It is
a
trite principle
of our law that the person who alleges
a
compromise bears
the onus of establishing the compromise."
[35]
A compromise has
been described as a settlement by agreement of disputed obligations,
whether contractual or otherwise.
[2]
The author states further that:
"Because
compromise is
a
form of novation
and involves the waiver of existing rights it must be as clearly and
unambiguously proved as any other waiver or
novation.
[3]
[36]
The respondents
stated the above proposition in their heads of argument with
reference to a passage in
Reid
Bros (South Africa) Ltd v Fischer Bearings
Co
Ltd
[4]
("the
Reid Bros (South Africa) Ltd judgment”)
where
Watermeyer ACJ stated:
"Now
a
binding
offer is as
a
rule constituted
by the acceptance of an offer, and an offer can be accepted by
conduct indicating acceptance, as well as by words
expressing
acceptance. Generally, it can be stated that what is required in
order to create
a
binding contract
is that acceptance of an offer should be made manifest by some
unequivocal act from which the inference of acceptance
can be
logically drawn".
[37]
In an attempt to persuade this court
that the applicant's claim was compromised, the respondents implored
this court to consider
the email of 8 May 2020 quoted in paragraph
[16] above and pointed out that:
37.1
the amount claimed by the applicant was
clearly disputed in the said email;
37.2
the email refers to the payment as an
"offer''
rather
than payment of admitted liability;
37.3
the amount offered, being a rounded
number of R50,000 is objectively unlikely to have been a payment of
an admitted liability in
circumstances where there were thousands of
line items; and
37.4
the words
"in
full and final settlement of all claims that either party may have
against the other arising out of any cause whatsoever''
used
in the email are inconsistent with the notion that the payment was in
respect of an admitted liability.
[38]
It was further submitted that the
fact that the email of 8 May 2020 was sent to various email
recipients, that there was no response
thereto until 7 September 2020
and the fact that the applicant appropriated and retained the sum of
R50 000, all point to the fact
that the applicant accepted the offer
of compromise and as such the applicant is barred for suing for the
balance.
[39]
To sum up the respondents'
submissions are that the requirements of a compromise have been
established in that:
(a)
there was a dispute between the parties
as to the indebtedness of the first respondent to the applicant;
(b)
the first respondent made an offer in
full and final settlement of the applicant's claim and paid an amount
of R50 000 as part of
the offer; and
(c)
the offer was accepted when one has
regard to the conduct of the applicant.
[40]
Mindful of the fact that most of the
cases the respondents relied on to establish the compromise were
concerned with payment of
cheques marked
"full
and final settlement" which
cheques
were deposited by the creditor, the respondents submitted that:
"In
an age of electronic banking, payment by cheque is now rare. Debtors
have the power to make payment directly into the creditor's
accounts,
which is what took place in the present matter. The respondents in
the present matter do not rely on the fact that the
money was paid
into the account of the applicant as indicating acceptance but
rather, the applicant having been made aware of the
basis upon which
the payment was made and receiving direction as what to do with such
payment if it was not accepted as payment
in full and final
settlement, the applicant elected to retain the payment and
appropriate it, without demur. This, according to
the respondents
would constitute acceptance on the same basis as
a
party receiving
a
cheque in similar
circumstances and electing to deposit the cheque and appropriate
payment."
[41]
For its part, the applicant
contended that the respondents have failed to establish the essential
requirements of a compromise which
are:
(a)
a true dispute of an obligation;
(b)
the compromise having regard to the
terms of the contract; and
(c)
the acceptance of the offer of
compromise.
[42]
In support of its contention that
there can be no compromise in the absence of a true dispute of an
obligation, applicant's counsel
referred this court to two decisions,
namely;
Buffalo Freight Systems
(Pty) Ltd v Crestleigh Trading (Pty) Ltd and another
[5]
("the Buffalo Freight
Systems judgment')
and
Karson
v Minister of Public Works
[6]
("the Karson judgment”).
[43]
As already stated above, it was
contended on behalf of the respondents that the first respondent had
disputed its liability to pay
the applicant and that this was
contained in the email of 8 May 2020. In the alternative, counsel for
the respondents submitted
that the dispute of liability is not an
invariable requirement of a compromise. In this regard he referred
this court to the decision
of the Supreme Court of Appeal in
Absa
Bank Ltd v Van De Vyver
NO
[7]
(the Absa Bank Ltd judgment'?
where
Howie JA stated that:
"There is
logically no reason why compromise cannot be offered and attained
where the debtor has no defence".
[44]
I have gone through the Buffalo
Freight Systems judgment and could not find any support for the
proposition advanced by applicant's
counsel. It is so that in the
Karson judgment, Leach J regarded the existence of a dispute as to an
obligation by the debtor to
pay as an essential requirement of a
compromise. The correct legal position, however, is as explained by
Howie JA in the Buffalo
Freight Systems judgment that although Innes
CJ in
Odendaal v Du
Plessis
[8]
appeared to confine compromise to
the case where an alleged debtor denied all liability, there is no
suggestion that he intended
to formulate a statement of universal
application. This, in my view, overruled the Karson judgment to the
extent that it sought
to suggest that the existence of a dispute to
pay is an essential requirement of a compromise. In my view, for the
consideration
of whether the applicant's claim was compromised, it is
not necessary to consider whether the first respondent's indebtedness
was
disputed. What has to be considered is whether the first
respondent made an offer which was accepted by the applicant.
[45]
That the first respondent made an
offer of settlement is clear from the email of 8 May 2020 despite the
applicant's protestation.
It is this offer that must be considered on
its terms. This offer referred to payment which had already been
made. This immediately
distinguishes this matter from those where an
offer is accompanied by a cheque. The distinction is that in the case
of an offer
accompanied by a cheque it is the creditor that decides
to present the cheque for payment and this is something that can be
taken
into account in considering whether the offer was accepted. On
the other hand, where a debtor pays into the creditor's account,
the
creditor would not have taken any positive steps which could give
rise to an impression that it accepted the offer.
[46]
Alive to the above distinction, the
respondents argued that they do not rely on the payment, but on the
retention of the money by
the applicant. It is necessary to look at
the offer in order to determine whether the applicant is entitled to
retain the money
whilst not accepting the offer. In this regard, the
offer stated that the payment
can
be refunded in the event of the
offer being acceptable (my emphasis).
[47]
Counsel for the
applicant submitted that from the reading of the offer it is clear
that the applicant was given an election to either
refund the money
or not. In the alternative he submitted that the offer is ambiguous
as to the applicant's right to retain the
money in the event of the
offer being rejecting. He therefore urged the court, in line with
what was stated in the Hubbard judgment
to construe the
contra
proferentem
and
to hold that the applicant is entitled to retain the payment and to
sue for the balance.
[48]
One would have to strain the
language in order to come to a conclusion that the applicant was
obliged to refund the payment of the
sum of R50 000. This is because
there is no way of interpreting the "can" to mean that the
applicant was obliged to refund
the payment of the sum of R50 000. At
best the applicant was told that it would be able to refund the money
or was permitted to
refund the money in the event of it rejecting the
offer. At worst the offer was ambiguous as to the applicant's right
to retain
the payment whilst rejecting the offer in which event the
offer must be construed
contra profer
entem.
In the circumstances, the
fact that the applicant retained the money cannot give rise to the
impression that the applicant accepted
the offer.
[49]
What is more is that the applicant
wrote to the first respondent on 7 September 2020 requesting a
detailed remittance as well as
queries pertaining to the outstanding
balance whereafter it would revert. If anything this was an
indication that as at the 7th
of September 2020, the applicant still
required certain information from the first respondent and that it
was upon receipt of such
information that the applicant would revert
to the first respondent. This must be viewed in light of the email of
the 4
th
May 2020 wherein Mr Smiedt had advised that the first respondent
would make the payment in full and final settlement and that the
applicant would be provided with the first respondent's calculations.
[50]
It is common cause that the first
respondent never provided the applicant with the calculations. The
applicant was thus entitled
to call for the calculations. The conduct
of the applicant in calling for the first respondent's calculations
is inconsistent with
the notion that it accepted the offer. As stated
in the Reid Bros (South Africa) Ltd judgment what is required in
order to create
a binding contract is that acceptance of an offer
should be made manifest by some unequivocal act from which the
inference of acceptance
can be logically drawn.
[51]
The argument by the respondents'
counsel requires this court to ignore this communication of 7
September 2020 without proffering
any cogent reasons why it ought to
not be considered. This communication is part and parcel of the
applicant's conduct after it
had received the offer.
[52]
To recap, the applicant's conduct
that fall to be considered in order to determine whether it accepted
the first respondent's offer
include:
(a)
the fact that it retained the payment
made by the first respondent;
(b)
the delay in responding to the offer;
and
(c)
the response when the applicant
ultimately responded.
On
these facts and as already stated above, the applicant was entitled
to retain the payment as it had an election to do so in terms
of the
offer. Also, the applicant requested the first respondent to furnish
it with its calculations so that it could consider
same and this is
inconsistent with acceptance of the offer. This leaves only the delay
in responding to the first respondent's
offer. The delay on its own
cannot be construed as an unequivocal acceptance of the offer by the
applicant viewed in light of all
the relevant circumstances. The
result is that the respondents have failed to establish that the
applicant's claim was compromised.
[53]
The respondents' entire case relied
on the compromise. The respondents having failed to establish the
compromise, it falls on this
court to determine whether the applicant
is entitled to the relief it seeks.
[54]
The first respondent did not query
the invoices rendered by the applicant within the 15 day period
referred to in the agreement.
In accordance with the terms of the
agreement, the invoices are deemed to be correct in all
circumstances. According to these invoices
the first respondent owed
the applicant a sum of R254 182.12 before the payment of the sum of
R50 000.00 Thus the aforesaid sum
of R254 182.12 is deemed to be
correct. Deducting the sum of R50 000.00 entails that the first
respondent is liable to the applicant
in the sum of R204 182.12 which
the first respondent has failed to pay. The second respondent, on the
strength of the deed of suretyship,
is also liable to the applicant
in the sum of R204 182.12. The applicant's claim having been
established, and the defence set up
by the respondents having failed,
it follows that the application should succeed.
[55]
The parties had
contracted on the basis that the first respondent would be liable for
interest calculated at the rate of 5% above
the maximum rate of
interest a
tempore
morae
and as
such the applicant is entitled to an order to that effect.
[56]
As the applicant
has succeeded, I can find no reason why the costs should not follow
the result. The parties had contracted on the
basis that the
applicant would be entitled to recover costs on an attorney and owned
client scale including costs of counsel on
brief. In light of the
amount of the applicant's claim falling within the jurisdiction of
the Magistrate's Court, counsel for the
applicant indicated that the
applicant does not seek the costs on the High Court scale but on the
magistrate's court scale. Costs
are accordingly awarded on the
Magistrate's Court scale.
[57]
In the result I
make the following order:
57.1
The first and second respondents are
ordered to pay applicant the sum of R204 185.12 plus interest at the
rate of 5% above the maximum
rate of interest a
tempore
morae,
calculated from 28 September
2020 to date of payment.
57.2
The first and second respondents are
ordered to pay the applicant's costs on the appropriate Magistrate's
Court scale and on a scale
as between attorney and own client.
Judge
LG Nuku
APPEARANCES
For
the Applicant
:
Advocate FW Landman
Instructed
by:
Van Der Meer Attorneys
(Ref: Mr S Van Der Meer)
For the 1
st
& 2
nd
Respondents :
Advocate D Goldberg
Instructed by:
Bagraim Attorneys (Ref: Mr B Shiff)
[1]
2010 (2) S A 39
1 (WCC) at para [11]
[2]
RH Christie
The Law of Contract in South Africa
6
th
ed at 473
[3]
RH Christie
The Law of Contract in South Africa
6
th
ed at 473
[4]
1943 AD 232
at 24l which was referred to in para [9] in the Hubbard
judgment
[5]
2011 (1) SA 8 (SCA)
[6]
1996 (J) SA 887 (E) at 893-894
[7]
2002 (4) SA 397
(SCA) at para [15]
[8]
1918 AD 470