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[2014] ZAGPJHC 292
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Rust Geotechnical Consultants CC v Cad Search CC (A3078/2013) [2014] ZAGPJHC 292 (29 October 2014)
REPUBLIC OF SOUTH
AFRICA
IN THE HIGH COURT
OF SOUTH AFRICA
(GAUTENG LOCAL
DIVISION, JOHANNESBURG)
CASE
NO: A3078/2013
DATE:
29 OCTOBER 2014
In the matter
between:
RUST GEOTECHNICAL
CONSULTANTS CC
..........................
APPELLANT
And
CAD SEARCH
CC
...............................................................
RESPONDENT
J U
D G M E N T
MASHILE, J:
[1] This appeal is
directed against the whole judgment and order of the additional
Magistrate A M E Oosthuizen, in Randburg, in
terms of which judgment
was granted in favour of the respondent for payment of the sum of R69
768.00, mora interest thereon and
costs, on 15 July 2013.
[2] The respondent
(CAD), a close corporation specialising in the placement of computer
aided design qualified draughtsmen within
various industries
including the engineering industry, whose sole member is Ms Catherine
Davis, instituted a claim against the
appellant (Rust) for fees due,
owing and payable, based on an alleged oral agreement between the
parties in terms of which the
CAD would find a draughtsman, skilled
in the use of the computer aided package, used by Rust and then
provide Rust with the draughtsman’s
curriculum vitae and
contact details to enable Rust to interview and hire the person so
referred.
[3] As for the fees,
CAD pleaded that it was a tacit term of the agreement that Rust would
pay CAD’s usual fee alternatively
a reasonable fee in respect
of the recruitment services rendered. The usual fee or reasonable fee
of CAD is 15% and 10% of the
annual or monthly salary of a
successfully placed candidate respectively. CAD further pleaded that
a suitable candidate, Mr Abers,
was provided to Rust by Ms Estelle
Shering of Zenith Career Consultants CC, who duly represented CAD as
its agent and that its
contractual obligations were thus duly
fulfilled.
[4] Rust is also a
close corporation conducting business as geotechnical consultants,
and its members are Dr Martin Rust and Dr
Michelle Theron. Rust in
essence denied that it concluded a verbal agreement with CAD.
[5] The common cause
background facts that gave rise to the action are:
5.1 Dr Theron, who
represented Rust in contacting Ms Davis, requested her to find a
highly qualified and experienced suitable draughtsman,
with specific
skills and experience for possible employment with Rust.
5.2 Ms Davis advised
her that she was unable to assist but that she had a colleague whom
she knew would be able to assist and requested
whether she could
forward Dr Theron’s details to her. Dr Theron agreed and her
details were furnished to Ms Estelle Shering,
who is a personnel
recruitment agent and the sole member of Zenith Career Consultants
CC, specialising in the placement of computer
aided design qualified
draughtsmen within various industries including the engineering
industry.
5.3 Subsequently Ms
Shering presented Dr Theron with the curriculum vitae of Mr Abers,
who as it turned out, was in all respects
a suitable candidate.
5.4 Dr Rust and Dr
Theron interviewed and appointed Abers as a specialised draftsman for
a period of one year, in respect of which
a written agreement of
employment was concluded.
5.5 CAD demanded
payment of the placement fee from Rust but in response thereto Dr
Theron, in a letter dated 22 January 2010, stated:
5.6.1 She was not
aware that a commission on Abers’s salary would be claimed;
5.6.2 Any agreement
with CAD was denied;
5.6.3 Ms Shering did
not add any value to the discussion between themselves as members of
the Rust besides, she was not part of
any discussion with Abers.
5.7 Dr Theron did
not concern herself with the amount of the placement fee, but simply
refused to pay any placement fee and persisted
that there existed no
contract between Rust and CAD.
[6] Against this
backdrop of the facts, the main issue that requires determination is
whether or not the parties concluded an oral
agreement. The other
issues are in essence peripheral and in any event subsidiary to the
core issue, which in the view I take
of this matter, do not require
further consideration.
[7] I turn now to
the evidence that was presented before the court a quo. CAD called
five witnesses to shore up its claim against
Rust while the latter
submitted testimony of two witnesses in support of its defence.
[8] I need to
mention that, for reasons that will unfold hereunder, I do not
consider it necessary to traverse the evidence of Frier,
Abers, Boyd
and Shering. Insofar as the witnesses on behalf of Rust are concerned
the testimony of Williams, as an expert in the
field, similarly can
be left out of the equation. In regard to the true issue between the
parties, the evidence of these witnesses
is of no value in assisting
the court to decide the true issue between the parties.
[9] Ms Davis
testified that:
9.1 She has been in
recruitment business for more than 10 years and confirmed having
received the enquiry of Dr Theron to which
she responded that she was
unable to assist and that Dr Theron’s details were forwarded to
Ms Shering.
9.2 In
cross-examination, she conceded that:
9.2.1 She is an
experienced and skilled businesswoman;
9.2.2 CAD’s
derives an income in asking a fee for every successful placement;
9.2.3 She, as the
sole member of CAD, has an obligation to ensure that every new client
knows and understands the fee structure
of CAD in respect of which
use is made of written terms and conditions which clients are
required to sign;
9.2.4 In Dr Theron’s
case no terms of an agreement were discussed nor were the written
standard terms referred to or required
to be signed;
9.2.5 Fees were not
discussed at all with Dr Theron;
9.2.6 Nothing was
mentioned to the effect that although Ms Shering would search for a
suitable candidate, Ms Davis would remain
entitled to the fee for the
placement;
9.2.7 It was
unreasonable and unfair towards Rust not to know what CAD’s fee
and/or fee structure was;
[10] Dr Theron
testified that:
10.1 She did not
enter into an oral agreement with CAD;
10.2 She would have
negotiated a placement fee of a candidate had she been informed that
a fee would be charged;
10.3 There was no
mention of a recruitment fee let alone an opportunity to negotiate
it.
[11] In the
determination of the question whether the parties concluded a valid
and enforceable agreement an offer and the acceptance
thereof must be
shown (see Jafta v Ezemvelo
[2008] ZALC 84
;
[2008] 10 BLLR 954
(LC). The onus in this
regard is on CAD to establish, on a balance of probabilities, that an
agreement came into being, by satisfying
the following requirements:
11.1 An offer;
11.2 The clear
unconditional acceptance of the offer;
11.3 The acceptance
must be made in the mode prescribed by the offeror;
11.4 The offeree has
to communicate acceptance of the offer to the offeror.
[12] CAD failed to
prove any of the requirements. The clearest indication of an absence
of a possible agreement ensuing was when
Ms Davis unequivocally
indicated to Dr Theron that she was unable to assist. The passing on
of Dr Theron’s details to Ms
Shering, without more ado, cannot
and did not create a contract between the parties. Counsel for CAD
placed much emphasis on the
practice prevailing in the recruitment
agency industry, as was dealt with in the expert evidence of Boyd on
behalf of CAD, and
submitted that it should likewise apply to the
parties in this instance. The argument is fallacious: there is no
evidence providing
the slightest inkling that the practice was either
known to Dr Theron or in any manner incorporated into an agreement
between the
parties by the acceptance thereof. Fact of the matter is
simply this: Ms Davis made no offer to Dr Theron nor was any offer
accepted.
Ms Davis merely facilitated the passing on of Dr Theron’s
details to Ms Shering, who proceeded to deal with the request. The
arrangement between Ms Davis and Ms Shering concerning sharing of
fees in the event of a successful placing following upon a referral,
does not assist CAD: it was merely a private arrangement between
themselves of which Dr Theron had not been apprised. No case of
agency, as pleaded, was moreover made out.
[13] To conclude:
what transpired between Ms Davis and Ms Shering is of no relevance or
consequence insofar as the conclusion of
the agreement between the
parties is concerned.
[14] The cases to
which this court was referred dealing with tacit terms are not
relevant to the facts of this matter. The tacit
terms on which CAD
relied presuppose the existence of an agreement between the parties.
No agreement was concluded and the issue
relating to tacit terms
accordingly does not arise.
[15] The evidence of
both experts, Mr Boyd and Ms Williams was not only superfluous but
also irrelevant to the real issue between
the parties. The aspects
dealt with in their evidence concern matters beyond a contract that
may have come into being, such as
what a reasonable fee in the
industry is. Both experts did not and could not testify as to what
had happened between Dr Theron
and Ms Davis and they both merely
reiterated that the aspects they dealt with, were matters for an
agreement to be negotiated and
concluded between the parties. Whether
or not a contract came into being is simply a factual enquiry which
CAD was required to
prove and which it has failed to do. It follows
that CAD’s claim was wrongly upheld by the court a quo.
[16] For all these
reasons, the appeal must succeed.
[17] In the result
the following order is made:
1. The appeal is
upheld.
2. The order of the
court a quo is set aside and substituted with the following:
‘1. The
plaintiff’s claim against the defendant is dismissed.
2. The plaintiff is
ordered to pay the defendant’s costs of the action.’
3. The respondent is
ordered to pay the costs of the appeal.
B A MASHILE
JUDGE OF THE HIGH
COURT OF SOUTH AFRICA
I agree.
F H D VAN OOSTEN
JUDGE OF THE HIGH
COURT OF SOUTH AFRICA
COUNSEL FOR
APPELLANT ADV R P VAN NIEKERK
ATTORNEYS FOR
APPELLANT WHALLEY VAN DER LITH INC.
COUNSEL FOR
RESPONDENT ADV M STRYDOM
ATTORNEYS FOR
RESPONDENT DE JAGER-DU PLESSIS ATTORNEYS
DATE OF
HEARING 27OCTOBER 2014
DATE OF
JUDGMENT 29 OCTOBER 2014