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[2015] ZAGPJHC 60
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Davmark Calendars (Pty) Ltd and Another v Ipex Holdings (Pty) Ltd (12989/2014) [2015] ZAGPJHC 60 (28 February 2015)
REPUBLIC OF SOUTH
AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
GAUTENG LOCAL DIVISION,
JOHANNESBURG
CASE NO: 12989/2014
DATE: 28 FEBRUARY 2015
In the matter between:
DAVMARK CALENDARS (PTY)
LTD
...........................................................................
First
Plaintiff
DAVMARK DIARIES & SERVICES (PTY)
LTD
......................................................
Second
Plaintiff
And
IPEX HOLDINGS (PTY)
LTD
...............................................................................................
Defendant
J U D G M E N T
HARTFORD, AJ:
[1] The defendant has excepted to the
claims of both the first plaintiff and the second plaintiff. I deal
with each in turn.
EXCEPTION AGAINST THE CLAIM OF THE
FIRST PLAINTIFF
[2] The defendant has excepted to the
first plaintiff’s claim on the ground that the first plaintiff
is not permitted in law
to place reliance on a breach of the first
agreement it entered into with the defendant on 2 March 2012 on the
basis that a second
agreement, entered into on 30 August 2012,
constitutes a final settlement of all claims which the first
plaintiff has consequent
upon a breach of the first agreement. The
defendant argues that the first plaintiff is limited to claiming a
loss arising only
from a breach of the second agreement. For
convenience, I will hereinafter refer to the second agreement as “D”.
[3] In essence, the defendant contends
that “D” is an agreement of compromise which excludes any
action based on the
original cause of action in the first agreement.
[4] The question thus arises whether
“D” in its terms constitutes such a compromise. Counsel
for the defendant pointed
to the terms of “D”, and in
particular, the first, second and third paragraphs of “D”
in support of his
submissions.
[5] It is trite law that in order to
succeed, an excipient has, inter alia, to persuade a court that “upon
every interpretation
which the pleading in question, and in
particular the document upon which it is based, can reasonably bear,
no cause of action
or defence is disclosed: failing this the
exception ought not to be upheld” (Gallagher Group Limited and
Another v IO Tech
Manufacturing (Pty) Limited and Others
2014 (2) SA
157
(GNP) at page 161D-F). Gallagher confirmed this principle
previously espoused in the cases referred to therein.
[6] In addition, the defendant bears
the onus of establishing that a compromise has been agreed. See
Hubbard v Mostert
2010 (2) SA 391
(WCC) at para [11] where it was
held:
“An offer of compromise will be
strictly interpreted. An offer must be clear and unambiguous.”
[7] Counsel for the first plaintiff
referred to the third, sixth and last paragraphs of “D”
in support of his contention
that “D” is not a compromise
and that the purpose of “D” was rather to secure the
release of the balance
of the purchase price by the bank. Counsel
also argued that, as in “D” the first plaintiff’s
rights were expressly
reserved, these could only refer to its rights
arising under the first agreement.
[8] Whilst one argument pertaining to
the interpretation of “D” might appear to be stronger
than the other, I am unable
to find that upon every interpretation
which “D” can reasonably bear, that it constitutes a
compromise and that therefore
no cause of action is disclosed. For
this reason, the exception relating to the first plaintiff must fail.
EXCEPTION AGAINST THE CLAIM OF THE
SECOND PLAINTIFF
[9] The exception against the second
plaintiff’s claim is that there is no claim in law by the
second plaintiff as:
9.1 There is no proximity or special
relationship between the second plaintiff and the defendant;
9.2 It is not reasonable to impose a
duty on the defendant, and there are no cogent policy reasons to do
so;
9.3 The second plaintiff had other
means available to it, such as contractually securing its position,
to protect itself against
loss;
9.4 The circumstances pleaded by the
second plaintiff do not justify the extension of a duty to avoid pure
economic loss and the
considerations advanced do not make it fair,
just and reasonable to impose such a duty.
[10] In a nutshell, it is contended
that the facts pleaded by the second plaintiff do not justify the
extension of a duty to avoid
pure economic loss on the defendant.
There is extensive case law on this topic and counsel for both the
second plaintiff and the
defendant submitted valuable and helpful
argument on the issues, for which I am most grateful.
[11] The second plaintiff, in order to
establish a delictual claim against the defendant, has to prove that
the act was wrongful.
In determining wrongfulness, a court must take
into consideration all the factors and circumstances relevant to the
matter. This
includes an investigation into whether the policy and
legal convictions of the community, constitutionally understood,
regard it
as acceptable (see Loureiro and Others v Imvula Quality
Protection (Pty) Limited
2014 ZACC 4
; 2014 (3) 394 (CC);
2014 (5)
BCLR 511
(CC) at para [53]).
[12] It is further well established
that our law is generally reluctant to recognise delictual claims for
pure economic loss and
that wrongfulness must be positively
established (see Country Cloud Trading CC v Member of the Executive
Council, Department of
Infrastructure Development, Gauteng
(2015 (1)
SA 1
(CC) at para [23] where Khampepe J reiterated these principles
with reference to previous cases). The fear is always that there
will be liability in an indeterminate amount for an indeterminate
time to an indeterminate class, as expressed in Ultramares Corp
v
Touche
(1931) 258 NY 170
at 444.
[13] Khampepe J further stated at para
[26]:
“Although there is no ‘checklist’
of relevant considerations, the enquiry does not call for an
‘intuitive
reaction to a collection of arbitrary factors but
rather a balancing against one another of identifiable norms’.”
In addition, fault, like all the other
delictual elements, must be separately established.
[14] The enquiry here must commence
with whether it would be reasonable to impose a legal duty on the
defendant in these circumstances,
and in this context, reasonableness
in the context of wrongfulness is something different from the
reasonableness of the conduct
itself which is an element of
negligence. It concerns the reasonableness of imposing liability on
the defendant (as stated by
Brand JA in Trustees, Two Oceans Aquarium
v Kantey and Templer (Pty) Ltd
2006 (3) SA 138
(SCA) at para [11]).
[15] Brand J stated further at para
[12]:
“When we say that a particular
omission or conduct causing pure economic loss is ‘wrongful’,
we mean that public
or legal policy considerations require that such
conduct, if negligent, is actionable; that legal liability for the
resulting
damages should follow. Conversely, when we say that
negligent conduct causing pure economic loss or consisting of an
omission
is not wrongful, we intend to convey that public or legal
policy considerations determine that there should be no liability.”
[16] Defendant’s counsel
submitted that where a third party seeks to assert a delictual claim
against a party who has undertaken
certain contractual obligations in
respect of other parties (excluding the third party) the following
policy considerations are
of importance:
16.1 The terms of the contact binding
the one party (the defendant) to reciprocal rights and obligations;
16.2 Whether the third party ought to
be allowed to circumvent or undermine the provisions of the contract
by the law affording
the third party a claim where the other
contracting parties are denied one;
16.3 The terms of the contract are
considered in assessing the convictions of the community in relation
to affording a claim for
compensation to a non-contractual party.
[17] The defendant submitted that the
allegations in the plaintiff’s Particulars of Claim do not in
law give rise to the duty
tendered for in para [22] of the
plaintiff’s Particulars of Claim under the actio legis Aquiliae
as:
17.1 There was no proximity or special
relationship between the second plaintiff and the defendant;
17.2 It was not reasonable to impose a
duty on the defendant and there are no cogent policy reasons to do
so;
17.3 The second plaintiff had other
means available to it, e.g. to contractually secure its position by
protecting itself against
loss;
17.4 The circumstances pleaded by the
second plaintiff do not justify the extension of a duty to avoid pure
economic loss and the
considerations advanced to justify the
conclusion that it will be fair, just and reasonable to impose such a
duty.
[18] In determining the legal
convictions of the community, it is necessary to look at all relevant
factors and surrounding circumstances.
In AB Ventures v Siemens Ltd
2011 (4) SA 614
(SCA) it was stated at page 618 para [10] that:
“Thus by the very nature of the
enquiry it will generally not be helpful in a particular case to look
to what has been decided
in other cases of an altogether different
kind. Where the case is not one that fits within the social and legal
policy that has
led to liability being recognised in other cases,
then what is called for instead is reflection upon what
considerations there
might be that necessitated the law also being
advanced to meet the new case. That calls not for a mere intuitive
reaction to the
facts of the particular case, but for the balancing
of identifiable norms.”
[19] Although, as occurred in AB
Ventures (supra), it is possible to determine wrongfulness on
exception, the question arises as
to whether all the facts and
surrounding circumstances enable me to determine that there is no
wrongfulness at this stage.
[20] In AB Ventures there was a major
construction project involving a multiplicity of contractors and
subcontractors, whose co-operation
was defined through a web of
interrelated contractual rights and obligations. Nugent JA held
that:
“There would be major
implications for a multi-partied project of this kind if each of the
participants was to be bound not
only to adhere strictly to the terms
of its specific contractual relationship, but, in addition, it was to
be held bound to all
the other participants by a general regime of
reasonableness” (at para [15]).
[21] He went on:
“In this case in which Siemens
bound itself to the joint venture to conform to the standards
specified in its contract, it
would be most anomalous if it were to
be bound to a stranger to conform to a different standard.” (at
para [16] thereof).
[22] The case before me relates to a
group of companies of which both the first and second plaintiff are
members. The second plaintiff
may well not have been a “stranger”
to the defendant, there being no facts or evidence before me on this
score, as
well as no facts before me as to whether the second
plaintiff’s loss could have been excluded by contractual means.
The
loss claimed herein is confined to being suffered by a single
plaintiff (not a multiplicity of parties) and is presumably limited
in its extent. Thus the facts herein differ substantially from those
in AB Ventures.
[23] Although I am prima facie of the
view that it is unlikely that this is a case where it is reasonable
to impose a legal duty
on the defendant in relation to the second
plaintiff in these circumstances, there may be cogent evidence placed
before a trial
court of the surrounding circumstances and facts that
might persuade a court otherwise. It is too early to close the door
to this
possibility, albeit a small one, by upholding an exception on
these pleaded facts now, at a time when a court has not been placed
in a position to assess all relevant facts and circumstances by way
of evidence.
[24] The defendant also argued that the
second plaintiff has failed to plead facts sufficient to establish
that the defendant was
negligent. Many of the terms pleaded as
grounds of negligence in the delictual claim overlap with the alleged
breach of contractual
terms in the first and second agreements. I am
of the view that this overlap per se does not preclude a court from
considering
those grounds pleaded as constituting negligence in their
own right and on a stand alone basis. The mere fact that they
regurgitate
some of the same grounds as those for breach of contract
does not automatically exclude the possibility that there was
negligent
conduct in the manner described. In any event, paragraph 21
of the Particulars of Claim did not fall into this category. This
issue
too should be determined by a trial court.
[25] I accordingly make the following
order:
25.1 The defendant's exceptions as
against the first plaintiff and the second plaintiff are dismissed
with costs, such costs to
include the costs of two counsel where
employed, including the costs of the supplementary submissions filed
after the conclusion
of oral argument.
C HARTFORD
ACTING JUDGE OF THE HIGH COURT OF
SOUTH AFRICA
GAUTENG LOCAL DIVISION, JOHANNESBURG
Plaintiff Counsel: Adv J
Wasserman SC
Adv H Smith
Defendant Counsel: Adv C Badenhorst
SC
Date of Hearing: 09 February 2015
Date of Judgment: 28 February 2015