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[2016] ZAGPJHC 240
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Absa Technology Finance Solutions (Pty) Limited v Merry Peasant Properties and Another (A5034/2015) [2016] ZAGPJHC 240 (16 September 2016)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NUMBER: A5034/2015
ABSA
TECHNOLOGY FINANCE SOLUTIONS (PTY) LIMITED
Appellant
and
THE
MERRY PEASANT PROPERTIES
First
Respondent
TREVOR
VINCENT SHAW
Second
Respondent
Coram:
WEPENER ET WEINER ET MODIBA JJJ
Heard:
14 September 2016
Delivered:
16 September 2016
Summary:
JUDGMENT
WEPENER
J:
[1] This is an appeal
with leave of the Supreme Court of Appeal, against a judgment of a
judge of this court, (Kathree-Setloane
J). The court a quo dismissed
the claim of the appellant against the first and second respondents.
The second respondent’s
liability arises as a surety for the
first respondent but nothing needs to be said about that as the
surety’s liability,
being dependant on the liability of the
first respondent, is not in issue.
[2] The dispute between
the parties was narrowly defined. The appellant relied on a master
rental agreement and sought payment of
arrear and future rentals and
ancillary relief from the first respondent. The first respondent
denied liability to the appellant
and pleaded that the master rental
agreement, relied upon by the appellant, was not the document which
was signed by the second
respondent on behalf of the first
respondent. In essence, the respondents’ version was that the
master rental agreement signed
on behalf of the first respondent did
not contain certain of the matter inserted in the master rental
agreement relied upon by
the appellant and that that the first
respondent never intended to enter into an agreement for a period of
60 months but only on
a month to month basis, as is evident form the
master rental agreement produced by the respondents.
[3] That there are
differences between the documents provided by the appellant and the
respondent, brooks no doubt. It is also not
in dispute that the
document produced by the appellant would bind the first respondent to
a rental period of 60 months. So is it
also in dispute that the
document produced by the respondents would bind the first respondent
on a month to month basis only.
[4] The issue on appeal
as formulated by the appellants is
‘
whether the
original master rental agreement is valid in circumstances where the
respondents allege that the specific rental period
was not inserted
at the time of the signature thereof by the second respondent’
As a result of the
uncontroverted evidence of the second respondent, Mr Shaw, the court
a quo found that the rental period of 60
months was indeed not
inserted in the written agreement at the time of signature thereof.
The appellants formulation of the issue
on appeal seems to accept the
correctness of that finding despite the word ‘allege’
utilised by it.
[5] The court’s
finding that the 60 months period was not inserted at the time of
signing is, in my view, unassailable. The
only witness who was
present at the time of signing and who gave evidence, Mr Shaw,
testified that the 60 month period was not
inserted and that it
accorded with his intention to enter into a monthly rental agreement.
A copy of the document so signed was
filed by his secretary and
retrieved when proceedings against the respondent commenced. There
was no evidence to contradict the
evidence of Mr Shaw. Indeed, his
reasoning regarding the fact that he would not have signed the master
rental agreement if a 60
month period was inserted is plausible and
the expectance of his evidence, both in regard to its own
trustworthiness and the probabilities,
cannot be faulted. The
appellant attempted to show that Mr Shaw signed other documents where
a period of 60 months was inserted
but he convincingly showed that in
that case the right to cancel the agreement, on 30 days notice, was
retained, such right having
been specifically inserted at Mr Shaw’s
request. The conduct of Mr Shaw by not entering into 60 month rental
agreements,
is consequently borne out and is consistent with
his evidence.
[6] The witnesses called
on behalf of the appellant could make no contribution as to whether
the 60 month period had been inserted
at the time of the signature of
the agreement. Indeed, Miss Kasselman, who testified on behalf of the
appellant, had to concede
that the material term of 60 months had
been omitted from the document at the time of signature. Neither Miss
Kasselman not Miss
Packery had any knowledge as to the state of the
master rental agreement on the date of signature thereof. What is
clear from the
evidence on any party’s version, is that the
document which Mr Shaw signed was altered after the date of him
affixing his
signature thereto. The 60 month period as well as a
serial number were later inserted in unknown circumstances. The only
witness
who could give first-hand evidence on behalf of the
appellant, a Mr Capper, was not called in order to elucidate as to
what the
master rental agreement contained on the date of signature.
This failure led the court a quo to conclude that a negative
inference
should be drawn against the appellant. That inference is
that Mr Capper would not have contradicted the evidence of Mr Shaw.
The
inference is justified and piles the evidence against the
appellant to an overwhelming probability that the 60 months period
was
not inserted in the master rental agreement, a fact which the
appellant could not seriously dispute.
[7] This brings one to
the issue which the appellant raises on appeal – whether the
master rental agreement is nonetheless
valid in that it is a master
rental agreement for a period of 60 months. I am of the view, that
the master rental agreement cannot
be valid for a period of 60
months. Mr Shaw never intended to sign an agreement for a period of
60 months resulting in the fact
that there was no meeting of the
minds of the contracting parties if the appellant’s predecessor
(the seller of the goods,
CentraFin) intended a period of 60 months
to govern the agreement. The appellant submitted that if it is held,
as I do, that the
period of 60 months was not inserted, the
respondent accepted the risks that any person could insert such a
period. This is a rather
alarming submission. On the assumption that
the appellant submitted that the words ‘any person’
should be read as the
other contracting party, it could only be
someone from CentraFin, the party to the agreement prior to its
cession. The witness
from CentraFin, Miss Packery, testified that she
had no knowledge of when the 60 months rental period was inserted or
by whom.
Even if CentraFin would have had the right to insert such a
period, contrary to the intention of the Shaw, there is no evidence
that it did so. The court a quo also indicated, correctly so, that
after the cession of the agreement by CentraFin and in November
2006
the master rental agreement, retained by Miss Packery, differed in
material respects from the master rental agreement relied
upon by the
plaintiff at the trial.
[8] It is abundantly
clear that someone, somewhere, inserted the period of 60 months into
the agreement. It was not there when Mr
Shaw signed it. There was no
evidence that CentraFin inserted it. This is clearly the basis for
the appellant’s argument
that ‘any person’ could
then fill in the 60 months period. This cannot be so. A contracting
party may elect not to
complete a clause which is to his benefit in a
written contract, whereupon the common law rules provide for a
substituted term
[1]
. In such a
case the only inference is that the contracting party, CentraFin,
intended to
‘
abandon
reliance on a specific period and that the common law rules are to
apply namely that it is a monthly lease
[2]
.’
[9] There is no room for
the argument that any person whomsoever could have been authorised to
insert a period of 60 months contrary
to the intention of Mr Shaw.
[10] There is no dispute
that the first respondent terminated the agreement by giving a
month’s notice.
[11] In the
circumstances, whether it is found that there was not a meeting of
minds and therefore no valid contract or that there
was indeed a
valid agreement on a month to month basis, the plaintiff’s
claim based on rentals subsequent to the cancellation
of the
agreement by the first respondent, fell to be dismissed as was done
by the court a quo.
[12]
In all the circumstances, the appeal falls to be dismissed with
costs.
Wepener
J
I
agree.
Weiner J
I
agree.
Modiba
J
Counsel
for Appellant:
J.J.
Durandt
Attorneys
for Appellant:
Jay
Mothobi Incorporated
Counsel
for Respondents:
G.
Goedhart
Attorneys
for Respondents:
Cowan-Harper
Attorneys
[1]
Miller
and Miller v Dickinson
1971 (3) SA 581
(A) at 589G;
Regering
van RSA v SGC Elektriese Kontrakteurs
1977 (4) SA 652
(T) at 658C-D.
[2]
Inrybelange
(Eiendoms) Bpk v Pretorius en ‘n Ander
1966 (2) SA 416
(A) at 425F.