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[2014] ZAGPJHC 424
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Piemarie Christine Trading CC v Unicore Holdings (Pty) Ltd (14/07804) [2014] ZAGPJHC 424 (9 December 2014)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NO. 14/07804
DATE:
09 DECEMBER 2014
In
the matter between:
PIEMARIE
CHRISTINE TRADING
CC
........................................................................
APPLICANT
And
UNICORE
HOLDINGS (PTY)
LTD
............................................................................
RESPONDENT
With
The
Government of the DRC seeking to intervene.
JUDGMENT
[1]
The applicant applies for an order compelling the respondent to
deliver certain goods purchased by the former in terms of an
agreement of sale between the parties. The Respondent, whilst
admitting the agreement of sale between the parties, contends in
essence that the purchase price has not been paid in full, and
alleges that an amount of US $25 000.00 remains outstanding.
There is, in addition, an application to intervene, interlocutory to
the main application, brought by the Government of the Democratic
Republic of the Congo which, in turn, is opposed by the applicant.
[2]
The order sought in the main application by the applicant plainly
constitutes final relief; factual disputes between the parties
must
therefor be adjudicated in terms of the
Plascon-Evans
rule.
[1]
I heard argument simultaneously on the interlocutory as well as the
main application and I will refer to these applications
as such in
this judgment.
[3]
It is common cause between the parties that on 28 February 2013, the
Respondent submitted a written quotation together with
a
pro
forma
invoice,
addressed to the Department of Health: DRC, for the sale of the items
tabulated in the invoice to the Applicant.
[2]
The price per item listed in the quotation is stated in US dollars,
but on page 3 of the quotation the total price is stated in
South
African Rand in the sum of R3,517,682.00, next to the inscription:
“
Conversion
to Rands ZAR 1 : USD 8.9579
”.
The quotation contained the following material terms and conditions:
“
Terms
& Condition
[sic]
1.
All prices are FOB South Africa,
Payable in ZAR to Unicore
2.
Terms of Payment: 100% payment in
advance
3.
Delivery time: 6 to 12 weeks after
receipt of payment.”
[4]
In paragraph 11 of the founding affidavit the applicant alleges that
during March 2013, it accepted the respondent’s aforesaid
quotation and that an agreement of sale in respect of the items
listed in the quotation on the terms and conditions stated therein
thus came into being.
[5]
The respondent admits that an agreement between the parties came into
being, which it describes in paragraph 18 of the answering
affidavit
as being “
partly written and partly oral”
and
refers in this regard to the same quotation which was attached to the
founding affidavit as the written part of the agreement.
In the
result, the fact that the quotation was addressed to the Dept. of
Health, DRC rather than the applicant is removed from
contention,
because the respondent must by reason of the said concession be taken
to have admitted the applicant’s
locus standi
to sue on
the agreement.
[6]
Yet, despite admitting that it prepared the quotation for
consideration by the applicant and that it submitted the quotation
to
the applicant for its attention, the respondent would nevertheless
appear to deny that the agreement was entered into upon the
terms
contained therein. Had the applicant relied merely upon an oral
agreement, it would have been incumbent upon it to
establish the
terms of such agreement, despite the respondent’s allegation
that the agreement contains different terms than
those alleged by the
applicant and despite such onus involving the duty to prove a
negative on the part of the party bearing the
onus.
[3]
But the situation is different in the case of a written agreement, or
where there is reliance upon a partly written and partly
oral
agreement, and one of the contracting parties alleges a term contrary
to the terms contained in the written part of the agreement.
In such
a case, that party bears an onus to establish the terms upon which it
seeks to rely.
[4]
In the
present matter, the respondent alleges,
inter
alia
,
that it was specifically agreed that the price was payable in US
Dollars, thus contradicting the term stated in the quotation
to the
effect that the purchase price was payable “
FOB
Jhb South Africa, Payable in ZAR to Unicore”
.
[7]
There is no attempt by the respondent to explain the discrepancy
between the terms as stated in the quotation and the terms
as alleged
in the answering affidavit; i.e., whether the terms as contained in
the quotation were subsequently amended by agreement,
or whether the
written portion of the agreement, being the quotation, does not
contain an accurate reflection of the parties’
agreement and
accordingly falls to be rectified. Nor does the respondent explain
why it accepted the payment in South African Rand
if, as it now
alleges, payment was to have been made in US Dollars. There is, in
any event, a patent discrepancy between the terms
as alleged in
paragraphs 18.3.2 and 18.3.3, respectively, of the answering
affidavit. If no goods were to have been purchased from
the
respondent’s overseas suppliers until full payment had been
received, as alleged in para 18.3.2, and this term was implemented,
there cannot conceivably be any “
exchange rate
charges/demurrage charges”
, which provision was allegedly
included as part of the agreement, as contended in para. 18.3.3. From
the very allegation that such
charges were incurred, it follows that
the goods must have been ordered from the respondent’s
suppliers before payment by
the applicant was received by the
respondent. There is no explanation by the respondent why this was
permitted to occur, if it
were true that the agreement in fact
forbade this.
[8]
This is an unacceptable way of traversing material allegations
constituting, on the one hand, the very kernel of the applicant’s
case as well as, on the other, the respondent’s defense. The
quotation, containing as it does, the material terms proposed
to form
part of the contract, was manifestly couched in terms constituting an
offer made
animo contrahendi
which, upon communication to the
respondent of its acceptance by the applicant, resulted in the
conclusion of an agreement along
the terms stated in the quotation.
This is precisely the effect also of the applicant’s
averments in connection with
the quotation in paragraph 11 of the
founding affidavit. The respondent’s denial of the applicant’s
version as to the
terms of the agreement is fundamentally
inconsistent with the admission, in paragraph 18.5 of the answering
affidavit, that the
respondent had prepared the quotation and pro
forma invoice referred to by the applicant for the latter’s
consideration and
that an agreement came into being between the
parties. If the quotation was accepted in the terms stated
therein, it necessarily
follows that the resultant agreement could
not have contained terms at variance with the terms communicated to
the applicant and
accepted by it without any qualification.
[9]
If the respondent wished to rely on a written agreement, or one
partly in writing, but which does not contain the terms as alleged
by
it, it was incumbent upon it to set forth in its answering affidavit
all the material facts necessary to establish such an agreement,
regard being had to the principle that an affidavit in motion
proceedings constitutes both the pleadings as well as the
evidence,
[5]
as well as a pleader’s obligation, in denying an allegation of
fact, to do so in clear and unequivocal terms.
[6]
This was plainly not done
in
casu
,
because the content of paragraph 18 of the answering affidavit is
wholly ambiguous as to the factual basis of the respondent’s
alleged agreement upon which it seeks to rely.
[10]
According to the respondent, the applicant’s alleged late
payment during March 2013, and the alleged breach to the effect
that
the payment was made in Rand rather than US dollar, resulted in an
extra R350 000.00 becoming payable, which the applicant
agreed
to pay into the respondent’s attorney’s trust account on
9 September 2013.
[7]
This letter reads as follows:
“
The
telephone conversation between our Mr Hunter and your Mr H James on 6
September 2013 refers.
We confirm that
it is agreed that your Client wil pay the sum of R350 000.00 to
us to be held in trust and not paid to our
Client pending delivery of
the goods purchased.
Kindly forward
proof of payment.”
[11]
In para. 13 of the founding affidavit, the deponent states that after
the lapse of more than 12 weeks after payment of the
full purchase
price for the items and after several demands for delivery of the
purchased items, the respondent’s attorney
addressed a letter
dated 8 November 2013 on behalf of the respondent to the applicant’s
attorney of record, a copy of which
was annexed to the founding
affidavit, marked annexure “
FA5
”. The content of
this letter is of considerable significance in the light of the
respondent’s subsequent claim that,
as at this date, the full
purchase price had not been paid, in the sense that the extra sum of
R350 000.00 had allegedly only
been paid on 9 November 2013.
This, according to the respondent, resulted “…
in a
further exchange rate costs/demurrage charges costs, which the client
computed to be in the sum of $25000”
.
[12]
Remarkably, there is not the slightest mention of an overdue amount,
be it in the sum of R350 000, or in any other amount
in the
aforesaid letter, nor is there any mention whatsoever of a demand by
the respondent for payment by the applicant of yet
a further sum of
$25 000 in consequence of such alleged late payment. On the
contrary, it is stated merely that delivery
of the equipment ordered
by the applicant was expected “…
at or about month
end…”
and that “…
our further update
is to follow as the matter progresses.”
This letter comes
at a time when the alleged exchange control/demurrage costs, if these
had in fact been incurred at all, must
have have been uppermost in
the minds of those in control of the respondent.
[13]
The applicant’s attorney responded to the aforesaid letter by
way of a letter dated 12 November 2013, addressed to the
respondent’s
attorney, in which it is recorded that, consequent upon the
undertaking in the respondent’s attorney’s
previous
letter that delivery of the goods would occur by month end, the
applicant has arranged for an accommodation by its own
client until
then. The entire tenor of this letter is wholly inconsonant with the
applicant’s having been in default of payment
until 3 days
before this letter.
[14]
The respondent’s attorney, in turn, responded to the
applicant’s attorney’s aforesaid letter by way of a
letter dated 29 November 2013
[8]
,
in which it was denied that the respondent had committed itself to
the 30
th
November as a date of delivery, and undertook merely to ask the
respondent for an update as to the expected date of arrival of
the
ordered goods and to keep the applicant apprised of developments,
“…
in
order for this matter to be finalised as soon as is possible.”
If,
as is now contended on behalf of the respondent, the applicant was
not only responsible for the delay but, indeed, was indebted
to the
respondent in an extra amount of US$25 000.00 in consequence
thereof, the content and tone of the aforesaid letter
would be
inexplicable. The absence of any mention of a delay brought about by
a late payment on the part of the applicant, and
the absence of any
demand for the payment of an additional sum allegedly due by reason
of such delay are, again, wholly inconsistent
with there being an
amount still outstanding at this point.
[15]
When part of the equipment finally arrived during January 2014, the
respondent’s attorney addressed a letter to the applicant’s
attorney of record, in which he stated: “
We are pleased to
report that the equipment referred to in Annexure “A” is
ready for your client to collect…”
. Yet again,
no mention was made of any outstanding amount payable by the
applicant, at a stage when, had additional costs
in the amount of
US$25 000.00 in relation to foreign currency fluctuations or
demurrage been incurred by the respondent, such
costs must
necessarily have been accounted for by then. Not only did the
respondent make no demand for payment of any additional
sum allegedly
outstanding, but it indeed gave delivery of this part of the
consignment without any demur whatsoever. The
respondent’s
conduct as aforesaid is fundamentally inconsistent with its present
claim that there is an outstanding balance
of the purchase price
payable before it is obliged to make delivery of the remainder of the
goods sold. In the event, the first
time any mention was made of the
alleged additional amount payable was in a letter dated 9 June 2014,
addressed by the respondent’s
attorney to the applicant’s
attorney of record, annexed to the answering affidavit as annexure
D2, which came at a time after
the application had already been
instituted.
[15]
The alleged dispute thus engendered, so it is argued on behalf of the
respondent, precludes the grant of the relief sought.
However,
a real, genuine and
bona fide
dispute of fact can exist only
where the court is satisfied that the party who purports to raise the
dispute has in his affidavit
seriously and unambiguously addressed
the fact said to be disputed. See
Wightman t/a JW Construction v
Headfour (Pty) Ltd and Another
[2008] ZASCA 6
;
2008 (3) SA 371
(SCA) at para. 13.
I am by no means so satisfied. As pointed out above, the respondent
failed to set forth the material allegations
necessary to explain how
its version of the agreement came into being and how it came about
that the agreement was entered into
on terms contrary to the terms
contained in the quotation it submitted to the applicant. Another
material fact entirely absent
from the respondent’s account is
when and precisely how the further amount of $25 000.00
allegedly became payable. This
is, after all, a matter falling within
the peculiar knowledge of the respondent, and about which it bears
the
onus
. It is not sufficient for the respondent to merely
make mention, belatedly and in passing, that an extra amount has
become payable
by the applicant; the necessary particularity, with
reference to the source documentation explaining the basis upon which
the additional
amount has been computed and agreed upon by the
parties ought to have been disclosed by the respondent, absent which
it cannot
be said that it addressed this issue seriously and
unambiguously. In the absence of a plausible explanation from the
respondent
as to the reason why it failed to demand payment of the
extra sum when it fell due, or why it took so long for the respondent
to
realise that an extra sum has become due, this allegation is
clearly untenable and falls to be rejected merely on the papers.
[16]
The application by the Minister of Health of the Government of the
Democratic Republic of the Congo, to whom I shall henceforth
refer as
the DRC, to intervene in the application is, in my view, devoid of
substance, because the DRC has not shown a cognisable
legal interest
in the relief sought by the applicant, nor has it formulated any
cognisable relief it will seek against the applicant
should leave to
intervene be granted. The respondent has contracted with the
applicant as a principal, despite the respondent’s
knowledge at
the time that the applicant was sourcing the goods purchased for the
DRC. The DRC’s allegation that the applicant
is in default in
respect of its agreement with the DRC does not afford the latter any
basis to intervene in the present application.
The DRC does not even
allege that it has withdrawn the applicant’s mandate to source
and supply the goods purchased by the
applicant from the respondent.
Indeed, its conduct in seeking to persuade the respondent not to
effect delivery of the goods to
the applicant, is in my view
prima
facie
unlawful.
[17]
In these circumstances, the applicant’s application must be
granted, the respondent to pay the applicant’s costs,
whilst
the application to intervene falls to be dismissed with the applicant
in the interlocutory application to pay the costs
of the applicant in
the main application.
[18]
I accordingly make the following orders:
A
The respondent is ordered to deliver the goods itemised in annexure
FA3 to the founding affidavit to the applicant within 15 days
of this
order, save for the items enumerated in annexure FA 9 to the same
affidavit, which have already been delivered.
B
The respondent is to pay the applicant’s costs of this
application.
C
The application for leave to intervene by the intervening party is
dismissed.
D
The intervening party, the Democratic Republic of the Congo shall pay
the costs of the application to intervene.
Vermeulen
AJ
For
the applicant:
Adv
H.P. West, instructed by
James
Montsa Inc
Tel.
(011) 869-2983
Fax.
(011) 869 2983
PO
Box 5471
Meyersdal
1447
Docex
35, Alberton
14
Newquay Street
New
Redruth
Alberton1449
For
the respondent and the intervening party:
Adv.
E Coleman, instructed by:
John
G Hunter Attorneys
Tel.
(011) 782 9997
Fax:
086 688 4674
PO
Box 783824
Sandton
2146
jghattorneys@ionline.co.za
[1]
Plascon-Evans
Paints Ltd v van Riebeeck Paints (Pty) Ltd
[1984] ZASCA 51
;
1984
(3) SA 623
(A) at 634E-635C, and the authorities cited at 634G and
634I.
[2]
It
is not clear from the papers in either the main application or in
the interlocutory application why the invoice was addressed
to the
DRC.
[3]
See
Kriegler
v Minitzer and another
1949
(4) SA 821
(A) at 825
[4]
See
Kriegler
v Minitzer and another, supra, at 825; Mans v Union Meat Co.
1919
AD 268
at 271.
[5]
See
Hart
v Pinetown Drive In Cinema (Pty) Ltd
1972
(1) SA 464
(D) at 469C-E
[6]
See
Rule 18(5).
[7]
See
paras.18.6.1.1-18.6.3.3 of the answering affidavit (p. 32).
[8]
Annexure
FA7 to the founding affidavit (p. 20).