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[2015] ZAGPJHC 297
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Getsoft CC v Post Paid Company (Pty) Limited, In re: Neosoft CC v Post Paid Company (Pty) Limited v Post Paid Company (Pty) Limited, In re: Conycare (Pty) Limited v Post Paid Company (Pty) Limited (36983/14, 11803/14, 14021/14, 4180/14) [2015] ZAGPJHC 297 (6 November 2015)
HIGH COURT OF SOUTH
AFRICA
(GAUTENG LOCAL
DIVISION, JOHANNESBURG)
Case No. 36983/14
In the consolidated matters between:
Case No. 11803/14
DATE: 06 NOVEMBER 2015
GETSOFT
CC
...........................................................................................................................
Applicant
And
THE POST PAID COMPANY (PTY)
LIMITED
...............................................................
Respondent
Case No. 14021/14
NEOSOFT
CC
...........................................................................................................................
Applicant
And
THE POST PAID COMPANY (PTY)
LIMITED
...............................................................
Respondent
Case No. 4180/14
CONYCARE (PTY)
LIMITED
...............................................................................................
Applicant
And
THE POST PAID COMPANY (PTY)
LIMITED
...............................................................
Respondent
Case Summary: Claims for specific
performance in motion proceedings – material disputes of fact
have arisen on the affidavits
that are real, genuine and bona fide –
applicants have failed to satisfy the stringent test for the facts
alleged by the
respondent and its denials to be rejected without
evidence – the relief for specific performance claimed has
become moot
by the time the matter is heard - a referral of the
application to trial or for the hearing of oral evidence will
effectively be
a brutum fulmen – the principle enunciated in
Jenkins v S.A. Boiler Makers, Iron & Steel Workers & Ship
Builders
Society
1946 WLD 15
, at 17-18, applied in making an award of
costs.
JUDGMENT
MEYER, J
[1] These are three applications
brought by Getsoft CC (Getsoft), Neosoft CC (Neosoft) and Conycare
(Pty) Limited (Conycare) respectively
(jointly referred to as the
applicants) against the same respondent, The Post Paid Company (Pty)
Limited (Post Paid), which have
been consolidated for hearing.
Essentially identical relief is sought in each application: specific
performance of an oral agreement
allegedly concluded between each
applicant and Post Paid during May 2013 (and in the case of Conycare,
also of an earlier oral
agreement allegedly concluded during November
2012).
[2] Post Paid’s defence (in the
main) in each instance is that it never concluded an agreement with
any of the applicants
and it (for this reason) also denies that it
repudiated the alleged agreements. Post Paid further contends that
the consolidated
application should be dismissed, either because the
applicants should have realised when launching their applications
that genuine
disputes of fact not capable of resolution on the papers
would develop or because the alleged oral agreements on which they
rely
were of fixed duration, the time fixed in terms of each
agreement had come to an end and the applicants are thus no longer
entitled
to specific performance.
[3] Getsoft alleges that during May
2013 it (represented by Mr Norman le Roux) and Post Paid (represented
by Messrs Steven Greenspan,
Meyer and Yach) concluded an oral
agreement in terms of which Post Paid agreed to supply Gestsoft with
2 000 MTN Top-Up 100 preloaded
SIM cards for R21,00 per month per SIM
card (i.e. R42 000,00 per month) for two years commencing on 10 May
2013. Getsoft, so it
alleges, agreed to make an upfront payment of
R84 000,00 (i.e. two months’ payments) to Post Paid, which
payment was to serve
as a guarantee for the monthly payments and if
these payments were regularly made it was to be utilised to pay the
last two months’
charges.
[4] Neosoft relies on an oral agreement
with identical terms to those of the Getsoft agreement. It was
allegedly concluded during
May 2013 between Neosoft (represented by
Mr Richard David Baldwin) and Post Paid (represented by Messrs Steven
Greenspan, Meyer
and Yach). In terms of the alleged agreement Post
Paid agreed to supply Neosoft with 500 MTN Top-Up 100 preloaded SIM
cards for
R21,00 per month per SIM card (i.e. R10 500,00 per month)
for two years commencing on 29 May 2013. Neosoft’s upfront
payment
(i.e. two months’ payments) in terms of the alleged
agreement was the sum of R21 000,00.
[5] Conycare relies on two oral
agreements with identical terms to those of the Getsoft and Neosoft
agreements. The first one was
allegedly concluded between Conycare
(represented by Mr Demetre Kotsonis) and Post Paid (represented by
Messrs Richard Meyer and
Colin Yach) between 22 and 29 November 2012
and the second one between Conycare (represented by Messrs Demetre
Kotsonis and Stefano
Valenti) and Post Paid (represented by Messrs
Steven Greenspan, Meyer and Yach) during May 2013. It is alleged
that Post Paid
in terms of the first agreement agreed to supply
Conycare with 3 000 MTN Top-Up 100 preloaded SIM cards for R16,00 per
month per
SIM card (i.e. R48 000,00 per month) for two years
commencing on 1 December 2012 and in terms of the second one with 3
000 MTN
Top-Up 100 preloaded SIM cards for R21,00 per month per SIM
card (i.e. R63 000,00 per month) for two years commencing on 23 May
2013. It is alleged that Conycare’s agreed upfront payment
(i.e. two months’ payments) in terms of the first agreement
was
the sum of R96 000,00 and in terms of the second one the sum of R126
000,00.
[6] It is alleged that Post Paid
delivered the SIM cards to Getsoft, Neosoft and Conycare respectively
and that they made the upfront
payments and duly paid the monthly
fees to Post Paid for the SIM cards as and when they fell due. It is
alleged that Post Paid
repudiated each oral agreement by
de-activating the SIM cards on 13 December 2013 (in Getsoft’s
case it is alleged that 1030
SIM cards were de-activated on that date
and the remaining 970 on 12 March 2014). The de-activation of the
SIM cards that form
the subject-matter of this application is not
disputed.
[7] The specific performance sought by
the applicants is for the re-activation of the SIM cards supplied by
Post Paid pursuant to
the alleged oral agreements. Post Paid
contended that specific performance is no longer possible since Post
Paid on-sold the
airtime on the SIM cards in the applicants’
possession. In response the applicants sought to amend the relief
claimed by
them in their notices of motion to also include
alternative relief directing Post Paid, in the case of Getsoft, to
supply it ‘.
. . with 2000 MTN Sim cards, preloaded with
airtime equivalent to R100,00 per month from 12 December 2013 to date
of this order
and thereafter with airtime of R100,00 per month from
date of this order until 9 May 2015.’ Similar amendments were
sought
by Neosoft and Conycare. The amendments were authorized by an
order that I granted at the commencement of the hearing without
objection from Post Paid.
[8] Post Paid’s case is that the
SIM cards that form the subject-matter of this application were
supplied by it to a company
named Corporate and Industrial Mobile
Solutions (Pty) Ltd (CIMS) pursuant to a written agreement (‘the
MTN agreement’)
in terms of which Post Paid was entitled to
de-activate the SIM cards. It is alleged that Post Paid concluded
two written agreements
with CIMS during 2012 (one being the MTN
agreement that relates to the supply of MTN SIM cards and the other
one to the supply
of Vodacom SIM cards) in terms whereof it appointed
CIMS as a wholesaler and distributor of SIM cards. On 12 December
2013, Post
Paid de-activated or ‘soft-locked’ the SIM
cards it had supplied to CIMS. Post Paid avers that it did so
lawfully
in terms of the written agreements with CIMS. The SIM cards
that form the subject-matter of this application were amongst those
that were de-activated by Post Paid. Consequently, CIMS launched an
application in this court seeking the re-activation of the
SIM cards.
The matter was settled between CIMS and Post Paid.
[9] The affidavits disclose material
disputes of fact as regards the existence of the alleged oral
agreements and the repudiation
thereof. The applicants,
nevertheless, seek final relief. It is trite that courts approach
opposed applications for final relief
on the basis of the rule that
was expressed as follows by Corbett JA in Plascon-Evans Paints Ltd v
van Riebeeck Paints (Pty) Ltd
[1984] ZASCA 51
;
1984 (3) SA 623
(A) at 634H-635C:
‘It is correct that, where in
proceedings on notice of motion disputes of fact have arisen on the
affidavits, a final order,
whether it be an interdict or some other
form of relief, may be granted if those facts averred in the
applicant's affidavits which
have been admitted by the respondent,
together with the facts alleged by the respondent, justify such an
order. The power of the
Court to give such final relief on the papers
before it is, however, not confined to such a situation. In certain
instances the
denial by respondent of a fact alleged by the applicant
may not be such as to raise a real, genuine or bona fide dispute of
fact.
. . . If in such a case the respondent has not availed
himself of his right to apply for the deponents concerned to be
called
for cross-examination under Rule 6(5)(g) of the Uniform Rules
of Court . . . and the Court is satisfied as to the inherent
credibility
of the applicant's factual averment, it may proceed on
the basis of the correctness thereof and include this fact among
those upon
which it determines whether the applicant is entitled to
the final relief which he seeks . . . . Moreover, there may be
exceptions
to this general rule, as, for example, where the
allegations or denials of the respondent are so far-fetched or
clearly untenable
that the Court is justified in rejecting them
merely on the papers . . .‘
[10] And, as was stated by Harms JA in
National Director of Public Prosecutions v Zuma
[2009] ZASCA 1
;
2009 (2) SA 277
(SCA), para 26-
‘[m]otion proceedings, unless
concerned with interim relief, are all about the resolution of legal
issues based on common
cause facts. Unless the circumstances are
special they cannot be used to resolve factual issues because they
are not designed
to determine probabilities.’
[11] Leach JA, in National Scrap Metal
(Cape Town) (Pty) Ltd and another v Murray & Roberts Ltd and
others
2012 (5) SA 300
(SCA), said the following on the topic:
‘[21] These factors —
particularly collectively — do cast a measure of doubt on the
appellants' version, which
is certainly improbable in a number of
respects. However, as the high court was called on to decide the
matter without the benefit
of oral evidence, it had to accept the
facts alleged by the appellants (as respondents below), unless they
were 'so far-fetched
or clearly untenable that the court is justified
in rejecting them merely on the papers'. An attempt to evaluate the
competing
versions of either side is thus both inadvisable and
unnecessary as the issue is not which version is the more probable
but whether
that of the appellants is so far-fetched and improbable
that it can be rejected without evidence.
[22] As was recently remarked in this
court, the test in that regard is 'a stringent one not easily
satisfied'. In considering
whether it has been satisfied in this
case, it is necessary to bear in mind that, all too often, after
evidence has been led and
tested by cross-examination, things turn
out differently from the way they might have appeared at first blush.
As Megarry J observed
in a well-known dictum in John v Rees and
Others; Martin and Another v Davis and Others; Rees and Another v
John
[1970] 1 Ch 345
([1969]
2 All ER 274
(Ch)) at 402 (Ch) and 309F
(All ER):
'As everybody who has anything to do
with the law well knows, the path of the law is strewn with examples
of open and shut cases
which, somehow, were not; of unanswerable
charges which, in the event, were completely answered; of
inexplicable conduct which
was fully explained; of fixed and
unalterable determinations that, by discussion, suffered a change.'
(Footnotes omitted.)
[12] Despite the protestations of the
applicants to the contrary, the disputes of fact that have arisen on
the affidavits seem to
me to be real, genuine and bona fide. Post
Paid’s allegations and denials are neither far-fetched nor
untenable. The affidavit
evidence put up by Post Paid includes
evidence to the effect that: there was a contractual relationship
between Post Paid and
CIMS governed by the MTN agreement; the SIM
cards that form the subject-matter of this application were ordered
by CIMS pursuant
to the MTN agreement (that permitted Post Paid to
de-activate them); the SIM cards were delivered by Post Paid to
CIMS; CIMS
requested that the invoices be made out to Getsoft,
Neosoft and Conycare individually to which request Post Paid acceded
and it
did not invoice the applicants individually of its own accord;
Post Paid (including its Chief Financial Officer and Chief Sales
Officer) have stated under oath that they have never met the
deponents to the Getsoft and Neosoft affidavits – let alone
concluded agreements with them. The documentary evidence advanced by
Post Paid, at least on the face of it, supports its case
in several
and material respects.
[13] Each applicant asserts a
contractual nexus with Post Paid inter alia based on the fact that
Post Paid invoiced the applicants
in their respective company names.
Strong reliance is placed on the invoicing in arguing that this court
would be justified in
rejecting Post Paid’s allegations and
denials on the papers. But an invoice per se does not necessarily
evince an agreement
or even an offer and is to be construed in
context and in the light of all the material facts. See Spes Bona
Bank Ltd v Portals
Water Treatment South Africa (Pty) Ltd
1983 (1) SA
878
(A) at 981 et seq.
[14] The applicants have dismally
failed to satisfy the stringent test for the facts alleged by Post
Paid and its denials to be
rejected merely on the papers. The
version of Post Paid cannot be said to be ‘so far-fetched and
improbable that it can
be rejected without evidence.’ The
disputes of fact that have arisen are clearly not capable of
resolution on the papers.
The evidence of the deponents needs to be
tested by cross-examination.
[15] I now turn to Post Paid’s
argument that the application should be dismissed and not be referred
to trial or for the hearing
of oral evidence, because the alleged
agreements on which the applicants rely had come to an end by the
time this application was
argued. The alleged agreements provide for
their own duration. Each one was expressed to be for a specified
duration of two years
or 24 months. Post Paid was in terms of each
agreement obliged to supply Getsoft, Neosoft or Conycare with a
specified number
of SIM cards preloaded with airtime equivelant to
R100,00 per month for two years commencing in the case of Getsoft on
10 May 2013,
Neosoft on 29 May 2013 and Conycare on 1 December 2012
and on 23 May 2013. Post Paid was in terms of each alleged agreement
obliged
to supply the SIM cards for a two year period and to preload
them monthly with airtime equivalent to a specified money amount.
Getsoft, Neosoft and Conycare were in terms of the alleged agreements
obliged to pay a consideration of R21,00 per SIM card per
month to
Post Paid (except in the case of the alleged first agreement with
Conycare where the agreed monthly consideration was
R16,00 per SIM
card). Thus, the reciprocal obligations of the parties were
qualified by time clauses, which provide for the termination
of their
obligations at certain future dates. The two year period in each
instance had expired by the time the application was
heard in this
court. The reciprocal obligations of the parties have therefore been
terminated on account of the time clauses and
each agreement ceases
to exist. The applicants are no longer entitled to specific
performance and an order referring the application
to trial or for
the hearing of oral evidence will effectively be a brutum fulmen
(exercise in futility).
[16] In an attempt to escape the
dismissal of the application on this ground and to avoid any adverse
costs order, counsel for the
applicants at the conclusion of his
argument in reply moved a further application to amend the notices of
motion by adding alternative
prayers for declaratory relief that
Getsoft, Neosoft, Conycare and Post Paid concluded the agreements as
alleged by the applicants
and that Post Paid repudiated each
agreement. The issues forming the subject-matter of the declaratory
relief, counsel for the
applicants argued, are alive between the
parties also in claims for damages which the applicants intend to
institute against Post
Paid in lieu of specific performance. The
applicants’ argument is thus to the effect that the decision
sought in this application
will have practical effect or result in a
future case. Post Paid opposes the application for the amendments
and I have not yet
given a ruling thereon.
[17] It is a long-standing principle
that ‘courts of law exist for the settlement of concrete
controversies and actual infringements
of rights, not to pronounce
upon abstract questions, or to advise upon differing contentions,
however important.’ (Per Innes
CJ in Geldenhuys and Neethling
v Beuthin
1918 AD 426
at 441 and see Coin Security Group v SA
National Union for Security Officers
[2000] ZASCA 137
;
2001 (2) SA 872
(SCA) para 7.)
To permit the belated amendments and to refer the declaratory relief
claimed by the applicants to trial would simply
result in the
piecemeal adjudication of claims for damages which the applicants may
institute in lieu of specific performance.
[18] I agree with the submission made
by counsel for Post Paid that the principle enunciated in Jenkins v
S.A. Boiler Makers, Iron
& Steel Workers & Ship Builders
Society
1946 WLD 15
, at 17-18, is of equal application in a matter
such as the present one where the relief claimed has become moot by
the time the
matter is heard. Therein Price J said the following:
‘I cannot imagine a more futile
form of procedure than one which would require Courts of law to sit
for hours, days, or perhaps
even for weeks, trying dead issues to
discover who would have won in order to determine questions of costs,
where cases have been
settled by the main claims being conceded. If
the Court were eventually to say, that it awarded costs to a
particular party because
on the evidence that party would have won on
that issue, would the disappointed party then be entitled to appeal
in order to upset
the decision as to who would have won on the dead
issue that has been tried? This must necessarily follow if Mr.
Kuper's application
is entitled to succeed. When a case has been
disposed of by an offer which concedes the main claim and the costs
of the whole case
have still to be decided, I think the Court must do
its best with the material at its disposal to make a fair allocation
of costs,
employing such legal principles as are applicable to the
situation. This is much to be preferred to laying down a principle
which
requires courts to investigate dead issues to see who would
have won on such issues. In most such cases the litigants would be
required to incur far greater costs than those at stake. In my view
the costs must be decided on broad general lines and, not on
lines
that would necessitate a full hearing on the merits of a case that
has already been settled.’
[19] Conycare’s application was
issued on 10 February 2014, Getsoft’s one on 31 March 2014 and
that of Neosoft on 16
April 2014. Post Paid’s answering
affidavit in the Getsoft application was filed on 13 May 2014, in the
Neosoft application
on 9 June 2014 and in the Conycare application on
26 September 2014. Getsoft, Neosoft and Conycare are represented by
the same
attorneys and counsel. There is also a close connection
between the applicants and CIMS: Mr Demetre Kotsonis (the deponent
to
Conycare’s affidavits) is a director and shareholder of
Conycare and a director of CIMS; Mr Norman le Roux (the deponent
to
Getsoft’s affidavits) is the sole member of Getsoft, and he was
until February 2014 also a director of CIMS; and Mr Richard
Baldwin
(the deponent to the Neosoft affidavits) is a director and the sole
shareholder of Neosoft, and he is also a senior developer
at CIMS.
The applicants ought to have reasonably foreseen the existence of
material disputes of fact that are not capable of resolution
in the
pending motion proceedings by the latest when Post Paid’s
answering affidavit in the Getsoft application was filed
on 13 May
2014. But they doggedly persisted in seeking final relief in motion
proceedings and in so doing caused Post Paid to
incur unnecessary
costs.
[20] In the result the following order
is made:
(a) The applicants’ application
for leave to amend their notices of motion made at the conclusion of
the hearing on 4 August
2015 is refused with costs, including those
of senior counsel.
(b) The consolidated application is
dismissed and the costs of the respondent incurred as from 14 May
2014 are to be borne by the
applicants,
P.A. MEYER
JUDGE OF THE HIGH COURT
DATE OF HEARING: 4 August 2015
DATE OF JUDGMENT: 6 November 2015
APPLICANTS’ COUNSEL: EA
Limberis SC
INSTRUCTED BY: Christelis Artemides,
Rosebank, Johannesburg
RESPONDENT.S COUNSEL: A Subel SC
(assisted by L Kelly)
INSTRUCTED BY: Baker & McKenzie,
Sandown, Sandton