About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: South Gauteng High Court, Johannesburg
SAFLII
>>
Databases
>>
South Africa: South Gauteng High Court, Johannesburg
>>
2014
>>
[2014] ZAGPJHC 303
|
|
AR Fabrications (Pty) Ltd v High Climber Services CC (A3046/2014) [2014] ZAGPJHC 303 (29 October 2014)
REPUBLIC OF SOUTH
AFRICA
IN THE HIGH COURT
OF SOUTH AFRICA
(GAUTENG LOCAL
DIVISION, JOHANNESBURG
CASE
NO: A3046/2014
DATE:
29 OCTOBER 2014
In the matter
between
AR FABRICATIONS
(PTY) LTD
......................................
APPELLANT
And
HIGH CLIMBER
SERVICES CC
..................................
RESPONDENT
Appeal - Contract -
based on written quotation - formation of - requirement of signature
- evidence insufficient to prove signature
– no external
manifestations confirming contact relied on - onus of proof of
contract thus not discharged – appeal
upheld with costs.
J U
D G M E N T
VAN OOSTEN J:
[1] The issue in
this appeal, in a nutshell, turns on whether an agreement for the
hiring of scaffolding was concluded. The respondent,
as plaintiff,
instituted action against the appellant, as the first defendant, and
Colin Melling as the second defendant, for payment
of the sum of R195
324.17, in respect of the hiring of scaffolding, in terms of an
alleged agreement of hire, based on a quotation,
dated 30 November
2007 (the agreement). I shall revert to the terms of the agreement
later in the judgment. The defendants defended
the action mainly on
the basis of a denial that the agreement relied on had been
concluded. The matter proceeded to trial and only
two witnesses
testified: Mr Graham, the sole member of the plaintiff and Mr
Melling, the general manager in the employ of the first
defendant,
who was joined to the action as the second defendant on the basis of
surety and co-principal debtor for the first defendant.
Having heard
argument the Magistrate, sitting in Germiston, found for the
plaintiff but dismissed the plaintiff’s claim against
the
second defendant. The appeal is directed against the whole of the
judgment and order made against the first defendant.
[2] For a proper
understanding of the contractual setting between the parties it is
necessary to refer to some relevant background
facts. During July
2007 the appellant (AR), who traded as commercial shopfitters, was
employed as a sub-contractor by Tsogo Sun,
at Monte Casino in
Fourways, Johannesburg, for the extension of a front façade of
Salon Privé, in order to provide
for both a smoking and a
non-smoking section. That involved extending the frontage of Salon
Privé forward by some 10 to
12 metres which, as two levels of
the building were involved, required scaffolding and a hoist to be
erected to reach the upper
level. The project envisaged the use of
light-weight materials for easy assembly and minimal interference
with the existing building
structure in order to preserve its image
of an antique Italian building. A site meeting was held on 10 July
2007, which was attended
by all interested persons involved in the
project, including Graham and Melling. AR obtained a written
quotation for the scaffolding
from the respondent (HCS), trading as
specialists in all forms of scaffold access. The quotation is dated
26 July 2007 and issued
for ‘the supply the k/stage access,
hoisting equipment for various operations at [Monte Casino]’
for the sum of R12
848.00, in respect of the hire for one week or
part thereof and R2 932.00 per week thereafter’. The project
however, was
shelved. A few months later it revived but the plans for
the proposed extension changed substantially. What I have thus far
alluded
to, in essence, constitutes common ground between the
parties. For the remainder of the events relevant to the cause of
action,
the versions of the two witnesses I have referred to, differ
materially.
[3] Graham testified
that negotiations with Melling resumed during October/November 2007
for the hiring of scaffolding at Monte
Casino. He was requested to
quote which he did by way of a written quotation, dated 30 November
2007. The quotation is addressed
to ‘AR Fabrications, PO Box
7262, Leberhale 1410’ and is for the ‘supply …[of]
access scaffolding’
for the new façade, at the contact
price of R250 589.00 per 4 weeks, or part thereof, and R24 560.00 per
week thereafter,
exclusive of VAT. The quotation provides for the
signature for and on behalf of HCS as well as that on behalf of the
client, in
this case AR, accepting it. Graham further testified that
he thought that the quotation had been posted to AR. He did not sign
the quotation. Concerning the signing on behalf of AR he, with
reference to the quotation, testified as follows:
‘Sir, if you
look at the bottom of that page…(intervenes) --Yes.
“Acceptance on
behalf of client” and there appears to be a marking. What is
that? -- do not know. Some…Is that
a signature?--Well I have
seen worse. I have seen worse but I mean it could be a signature yes.
It could be, but I have seen worse.’
Graham continued
that he ‘accepted’ the quotation had been accepted by AR
because, so he testified, ‘well I mean,
you know, he (Melling)
paid portion of it and we did the scaffold complete, so I accepted
it, yes, that they accepted my quotation’.
In cross-examination
he revealed for the first time that Melling had confirmed having
received the quotation, somewhat dubiously
‘during the 20th,
just a little after the 20th, at the 11th when the quote was dated’.
He further testified that the
work quoted for commenced on 14
December 2007 (as is also pleaded in the particulars of claim) and
completed on 11 January 2008.
In cross-examination, however, his
version changed, and the commencement date now became 5 November 2007
and completed on 9 November
2007, to which he added that he had
verbally agreed with Melling that AR would be billed from 14 December
2007. AR was invoiced
for the period from 14 December 2007 to 11
January 2008 in the amount of R250 589.00. The scaffolding was used
until 17 March 2008
in respect of which AR was invoiced, by way of
two separate invoices, in the amount of R24 560.00 for each week. AR
subsequently,
in April and May 2008, by way of three payments of R100
000.00 each, paid the total amount of R300 000.00, leaving a balance
of
R195 324.17 owing, which is the amount claimed in the action.
[4] Melling denied
ever having received, signed or seen the November quotation. After
the July negotiations and during November
2007, he was informed by
Venessa Welke, on behalf of the project manager at Monte Casino, of a
complete change in the July plans
concerning the façade: it
was now envisaged that a complete steel sub-structure to the proposed
façade would be erected,
requiring some 38 tons of steel, and
that the entire area where the work was to be performed, needed to be
cordoned off. At her
request he provided her with the contact details
of HCR as she wanted to deal with them directly concerning the
scaffolding requirements
of the project. Welke (on behalf of Iqweba
Solutions, the project manager for Tsogo Sun), on 5 November 2007,
sent an email to
a large number of recipients, who were all involved
in the project, including both AR and HCR. This email is pivotal to
the issues
at hand and therefore requires closer examination. The
subject heading of the email reads: ‘monte casino salon prive
scaffolding
revised scaffolding sequence dates’ and records in
detail the required scaffolding to be erected commencing on Monday 5
November
2007 and, thereafter, on each subsequent day, until
completion thereof at close of business, on Friday 9 November 2007.
In addition
the email records that AR was to ensure that scaffolding
was made safe and inspected at all times and ‘the carpet
protected
below’. The proposed scaffolding was erected by CHR
on instructions of Welke but primarily for use by the steelwork
contactors
and not AR. In fact, the scaffolding contract did not
involve AR at all except that AR was to ensure that the scaffolding
was installed
at the appropriate place on the floor in order for it
to effectively and properly perform its work. AR had earlier quoted
to the
project manager for its work in the project based on the
amount, as for scaffolding, in HCR’s July quotation. The
steelwork
was not, as was initially envisaged, completed by 20
November 2007, which moved the commencement date of AR’s work
forward
to probably the end of January 2008. Melling however, seized
the opportunity arising from the general builders’ December
holidays to commence with the work on 14 December 2007, and it was
finalised on 17 March 2008. Although the scaffolding that had
been
erected was more of a hindrance to AR’s performance of its
work, some of the scaffolding, in particular at the higher
levels,
was in fact used by it. Melling testified that there was no agreement
between AR and HCR concerning the scaffolding but
that AR was
prepared to pay HCR for its use of part of the scaffolding that had
already been erected on site for the steel construction.
Based on the
weekly rate in the HCR’s July quotation and rounded off, the
amount of R300 000.00 was arrived at and paid to
HCR from progress
payments received from Tsogo Sun.
[5] In the view I
take of the matter two issues require determination: firstly, has CHR
succeeded in proving the agreement relied
on and, secondly, whether
the evidence of Graham can be reconciled with the evidence as a
whole, in particular the 5 November 2007
email.
[6] As to the first
issue the evidence concerning the signature of the quotation, I have
already alluded to, is seemingly unsatisfactory.
Counsel for HCS
conceded as much. The evidence does not even go as far as proving a
signature. In the particulars of claim it is
alleged that the
quotation was signed on behalf of AR, which constituted the agreement
between the parties. The references in the
evidence are to either a
mark or a smudge. Be that as it may, and assuming at best for HCS
that it indeed is a signature, there
is nothing to show that it was
Melling’s signature, who was the only person authorised to sign
on AR’s behalf. Melling
repeatedly denied that it was his
signature. Graham did not testify that it was Melling’s
signature. Graham merely assumed
that the quotation was sent by post.
When, and how, it was returned to HCS, assuming that to have happened
remains a mystery. It
is clear from the evidence that a signature on
behalf of AR was necessary for an agreement to be concluded. In the
absence of proof
of a signature on behalf of AR the court a quo, on
that ground alone, ought to have non-suited HCS.
[7] Finally, I turn
to a consideration of the evidence of Graham. He admitted receipt of,
as well as the implementation of the schedule
in the 5 November
email. But he denied that he had anything to do with Welke, in her
capacity on behalf of the project manager.
In this regard he
professed: ‘I was not contracted to Venessa in any way, shape
or form’ and stubbornly persisted in
the allegation that this
email only related to the agreement between HSC and AR. One single
observation, which also prominently
echoed in the version of Melling,
effectively draws a line through his denial and his evidence in this
regard: it is inconceivable
how a quotation dated 30 November 2007
could have been issued in respect of scaffolding that had by 9
November 2007 already been
erected. Graham was seemingly unable to
explain this discrepancy which moreover strikes at the heart of HCS’s
case as pleaded
‘that the plaintiff commenced work for the
defendants from about 14 December 2007 and the initial quotation
period ended
on 11 January 2008’. Graham, in my view, was an
unsatisfactory witness who was driven by the improbabilities arising
from
his evidence, to shift the goalposts in cross-examination. As
opposed hereto Melling’s version, on all material aspects,
accords with the probabilities particularly if regard is had to the
documents. The court a quo in dismissing the claim against the
second
defendant by implication found that Melling’s signature of the
30 November invoice had not been proved but, in regard
to the issue
whether an agreement had been concluded, reasoned that ‘through
external manifestations’ it had been concluded.
The finding, in
my view, cannot be sustained. The opposite, as I have alluded to,
holds true and it follows that the appeal must
succeed.
[8] 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 first defendant is dismissed.
2. The plaintiff is
ordered to pay the first defendant’s costs of the action.’
3. The respondent is
ordered to pay the costs of the appeal, excluding the costs relating
to the appellant’s application for
condonation..
FHD VAN OOSTEN
JUDGE OF THE HIGH
COURT
I agree.
BA MASHIL
JUDGE OF THE HIGH
COURT
COUNSEL FOR
APPELLANT ADV C MARYNOWSKI
ATTORNEYS FOR
APPELLANT BOWMAN GILFILLIAN
COUNSEL FOR
RESPONDENT ADV JC VILJOEN
ATTORNEYS FOR
RESPONDENT STUPEL & BERMAN INC
DATE OF HEARING
27 OCTOBER 2014
DATE OF JUDGMENT
29 OCTOBER 2014