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2014
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[2014] ZAGPJHC 127
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Airports Comany Of SA Ltd v BP Southern Africa (Pty) Ltd and Others (27626/13) [2014] ZAGPJHC 127 (18 June 2014)
IN THE HIGH COURT OF
SOUTH AFRICA
(
GAUTENG
LOCAL DIVISION, JOHANNESBURG
)
CASE
NO: 27626/13
DATE:
2014-03-10 NOT REPORTABLE
NOT
OF INTEREST TO OTHER JUDGES
In
the matter between
AIRPORTS
COMPANY OF SA LTD
Plaintiff
and
BP
SOUTHERN AFRICA (PTY)
LTD
1
st
Defendant
CHEVRON
SA (PTY)
LTD
2
nd
Defendant
ENGEN
PETROLEUM
LTD
3
rd
Defendant
EXEL
PETROLEUM (PTY) LTD
4
th
Defendant
SHELL
SA MARKETING (PTY) LTD
5
th
Defendant
TOTAL
SA (PTY) LTD
6
th
Defendant
J
U D G M E N T
C.
J. CLAASSEN J
:
[1]
This is an exception to the plaintiff’s
particulars of claim. The exception is taken by the first,
third, fourth, fifth
and sixth defendants. I shall refer to the
excipients as the defendants for ease of reference.
[2]
The respondent of course is the plaintiff
but I shall also refer to that party as the plaintiff.
[3]
The plaintiff issued summons against the
defendants arising from a written contract concluded between the
parties. The plaintiff
relies on the provisions of the contract
and in fact attaches the entire contract as annexure to the
particulars of claim.
[4]
In short, the plaintiff claims a penalty of
R15 million arising from what it alleges to be a shortfall in the
fuel supply by the
defendants at the Oliver Tambo International
Airport. It relies basically on two clauses namely clause 15
dealing with minimum
volumes and clause 21 dealing with
force
majeure
.
[5]
The relevant provisions of clause 15 state
that the defendants are to maintain a minimum amount of aviation fuel
each day.
The minimum amount is described in the clause as
being three times the daily average and then states that if it falls
below two
days’ supply then a penalty threshold is reached
causing certain consequences.
[6]
It is necessary to refer to the particular
clauses in some detail. Clause 15.3.3 of the contract reads as
follows:
“
Without
prejudice to any of ACSA’ rights under this agreement and/or at
law, should the useable aviation fuels stored at the
bulk fuel site
be less than two times the daily average (as calculated in terms of
15.3.1.2) for useable aviation fuels at the
airport (“the
penalty threshold”), then the managing participant shall
forthwith give written notice thereof to ACSA
and the participants
shall (to the extent that such shortfall in useable aviation fuels
does not result from any act of
force
majeure
as defined in 21) pay ACSA on
demand an amount of R5 million per day from the day that such useable
aviation fuels are less than
the penalty threshold for as long as the
participants fail to comply with 15.3.1.2. It is expressly
recorded that any amount
payable under this 15.3.2 constitutes the
penalty and that ACSA will, notwithstanding anything to the contrary
in the agreement
be entitled to recover its direct damages only (and
not its indirect or consequential damages) in lieu of such penalty.”
[7]
Clause 21 reads as follows:
“
21.1
Subject to 20 and the terms of this agreement, if any party is
prevented from performing
all or any of its obligations under this
agreement as a result of an act of God, fire, riot, warning (whether
declared or not)
embargos, export control, its national restrictions,
shortage of transport facilities not caused by such party, any oral
or any
international authority, any court order, any requirements of
any governmental authority or other competent authority, any theft,
interruption of electrical power or destruction of equipment due to
any cause beyond the reasonable control of such party or any
other
circumstances whatever which are not within the reasonable control of
such party (collectively “acts of
force
majeure
”) (but specifically
excluding any matters and/or occurrences referred to in 20.1 and 20.2
and the failure to obtain or renew
any governmental approval,
consent, licence or the like), such party will be deemed to have been
released from such obligations
(but only to the extent and for so
long as it is so prevented from performing such obligations).
If any such act of
force majeure
continues for more than 180 consecutive days then either ACSA or the
participant concerned shall be entitled, by written notice
to the
other, to forthwith terminate this agreement as between them.
21.2
As soon as a party becomes aware that an act of
force majeure
is likely to occur, it shall give notice in writing to the other
parties estimating the approximate duration of such act of
force
majeure
. The estimate shall not be binding and the party
claiming
force majeure
shall forthwith give written notice to
the other parties as soon as the act of
force majeure
ceases
to operate.
21.3
Notwithstanding anything to the contrary contained herein, the party
relying on an
act of
force majeure
shall use its best endeavours to mitigate and remedy its non
performance due to such act of
force
majeure
.”
[8]
The plaintiff pleaded the contents of
clause 21 of the agreement in paragraphs 10.7, 10.8 and 10.9 of the
particulars of claim.
It then continues as follows:
“
11.
The managing participant pursuant to the agreement notified the
plaintiff on
15 November 2012 that Ortia was below the penalty
threshold of useable aviation fuels as set out in the agreement.
12.
The plaintiff identified the specific days when the useable aviation
fuels
were below the penalty threshold as being the three days of 16,
17 and 18 November 2012.
13.
The plaintiff demanded payment from the defendants in the amount of
R15
million calculated as R5 million for each of 16, 17 and 18
November 2012 in penalties as contemplated in the agreement.
14.
The defendants’ claim that the shortfall below the penalty
threshold
was reached as a result of an alleged
force majeure
which the plaintiff disputes.
15.
Notwithstanding demand the defendants have refused and/or failed to
pay
the aforesaid sum of R15 million or any portion thereof to the
plaintiff.”
[9]
The exception is framed in the following
terms in the notice filed by the first, fourth, fifth and sixth
defendants, in paragraph
4 which reads as follows:
“
4.
The plaintiff does not allege (a) the fulfilment of the aforesaid
condition; (b) any other facts to sustain the conclusions that the
shortfall in respect of any of the three days in question arose
under
circumstances falling within the reasonable control of the defendants
or (c) that clause 21 of the agreement does not otherwise
preclude
its claims for a penalty under clause 15.3.3.”
[10]
In effect what the defendants are saying is
that the plaintiffs should have alleged a negative saying or pleading
that the reasons
for a shortfall did not fall within the provisions
of clause 21. In effect their interpretation of the contract
amounts to
the contents of clause 21 establishing a precondition to
the plaintiffs’ claim for the penalty.
[11]
The plaintiffs however alleged that a
proper construction of the contract does not allow of clause 21 to be
regarded as a precondition
but rather as a clause establishing and
exemption or an exception or a specific defence to the liability of
the defendants under
the contract. It alleges that such proper
construction would then perforce oblige the defendants to plead the
necessary facts
which would bring the defence within in the four
corners of the exemption contained in clause 3.2.1.
[12]
I have some difficulty in agreeing with the
interpretation advanced by the defendants at this stage of the
proceedings i.e. at the
exception stage.
[13]
It would seem to me that it is possible to
interpret clause 21 as read with clause 15.3.3 as allowing a defence
available to the
defendants explaining why there was a shortfall.
Simply looking at clause 21.3 of the contract it would appear that an
onus
is
placed on the party relying on an act of
force
majeure
to use its best endeavours to
mitigate and remedy its non performance. That sub clause forms
part of clause 21.
[14]
Before me, neither party argued that the
plaintiff is obliged to plead a negative by alleging that the
defendants did not use their
best endeavours to mitigate and remedy
the non performance. Such non performance seems to be common cause on
the pleadings.
[15]
If that is so, I have difficulty in
understanding why clause 21.1 should be interpreted any differently.
It would seem to
me that the pleadings of the plaintiff are
sufficiently clear to enable the defendants to plead to the
allegations setting out
what
force
majeure
or other causes prevented them
from maintaining the required levels of aviation fuel at the
airport.
[16]
I am also of the view that it could very
well be that 21.1 can be regarded as a deeming clause, supplying the
defendants with an
excuse which if so construed would oblige them to
plead and prove the
force majeure
upon which they rely.
[17]
However I wish to stress the fact that I do
not wish to be understood as making a determinative interpretation of
this clause at
this stage. Suffice to say that the different
interpretations of the contract would preclude me from upholding the
exception
at this stage.
[18]
It is trite law that different
interpretations of a contract may lead the court to refuse an
exception although that is not a hard
and fast rule. However I
cannot at this stage say that on any reasonable interpretation the
interpretation called for by
the defendants is the only possible
meaning of the contract. Once I have come to that conclusion,
the exception cannot succeed.
[19]
For those reasons I am therefore of the
view that I should make the following order:
The
exceptions of the first, third, fourth and sixth defendants are
dismissed with costs which include the costs occasioned by the
employment of two counsel.
DATED
THE 18
th
DAY OF June 2014 AT JOHANNESBURG
_____________________
C. J. CLAASSEN
JUDGE OF THE HIGH
COURT