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[2017] ZAGPJHC 192
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Engen Petroleum Limited v Webrref Trading No. 31 CC t/a Elm Street Service Station and Another (32424/13) [2017] ZAGPJHC 192 (3 July 2017)
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IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NO: 32424/13
Reportable:
No
Of
interest to other judges: Yes
Revised.
3
July 2017
In
the matter between:-
ENGEN
PETROLEUM LIMITED
Applicant
and
WEBRREF
TRADING NO. 31 CC t/a ELM STREET SERVICE STATION
(Registration
Number: 2000/027357/23)
First
Respondent
BLEND,
JEFFREY
(Identity
Number: [...]
Second
Respondent
JUDGMENT
SPILG,
J
INTRODUCTION
1.
Webref Trading No. 31 CC operates an Engen
service station with a convenience store outlet in Elm Street,
Dowerglen. It does so
under two agreements. The one relates to the
right to occupy the property which is governed by a lease agreement
between Webref
and Engen Petroleum Ltd. The other is the right to
operate an Engen filling station outlet as a franchisee of Engen
under an operating
agreement.
2.
Engen is not the owner of the property on
which Webref conducts its business. It however leases the premises
from the registered
owner under a notarial deed of lease.
3.
In March 2013 Engen instituted motion
proceedings under case number 9595/2013 for the eviction of Webref.
Engen relied on its cancelation
of the operating agreement on the
grounds that Webref had allowed the filling station to stand dry from
time to time which cancelation
in turn triggered an entitlement to
terminate the lease. Webref filed an answering affidavit and brought
a counterapplication.
Engen withdrew this application when it
discovered that a key confirmatory had not been deposed to.
4.
Engen then brought a fresh
application in August 2013 under case no 32424/2013 against Webref
for eviction based on the same grounds
as previously. Engen however
did introduce as part of its evidence the electronic accounting and
trading records which it averred
demonstrated that there were a
number of periods when no trading whatsoever was being conducted on
the premises.
5.
Webref did not file an answering affidavit.
It however entered into negotiations with Engen which culminated in a
written agreement
of settlement in terms of which Webref was afforded
the right to sell the filling station business.
6.
Clause 6 of the settlement agreement deals
with the extension of the head lease and provides that:
“
It
is
recorded that this agreement and an agreement between Engen and the
owner of the premises in terms of which inter alia the head
lease is
extended for a further period of 5 (five) years have been
concurrently signed by the applicable parties thereto and the
existence, force and effect of each 1 (one) of the 2 (two) said
agreements is subject to and conditional upon the signature of
the
other agreement”
7.
The two agreements identified in clause 6
as requiring to be signed was the extension of the head lease and the
settlement agreement
itself.
8.
Engen contended that Webref was obliged to
sign the head lease extension in its terms. It placed Webref on terms
to do so and when
it refused Engen cancelled the settlement
agreement. If Engen was entitled to cancel the settlement agreement
then Webref would
not be entitled to remain on the property unless it
successfully challenged Engen’s right to evict it in the
proceedings
that had been instituted.
9.
Webref then filed its answering affidavit
to the main application. It incorporated its first counterapplication
by reference and
introduced a second counter application. The
counterapplication was divided into two parts.
10.
In Part A Webref seeks a declaratory order
that the settlement agreement is binding and declaring that the
litigation between the
parties has become settled.
While Webref accepted that the head
lease extension had not been signed it contended in support of the
relief sought in the second
counterapplication that Engen had adopted
a dogmatic and uncompromising attitude in relation to negotiating the
appropriate rental
which entitles it to rely on the doctrine of
fictional fulfilment either on the basis of express waiver by Engen
or because Engen
frustrated the fulfilment of the condition. As a
consequence Webref also contended that the cancelation was invalid.
11.
It is common cause that rental could not be
agreed upon because the landlord insisted that the rental should be
based on what is
called the Regulatory Account System (“
RAS
”).
Engen contends that RAS was not
applicable to head leases, only to franchise agreements.
12.
Part B of Webref’s second
counterapplication is conditional inter alia on the court dismissing
the orders sought in Part A.
In Part B Webref seeks orders to
declare;
12.1.
both the head lease and the sub-lease to be
unconstitutional and therefore void,
12.2.
the retail licence to constitute property
and that such property is part of the goodwill and an asset of the
licence holder
12.3.
the retail licence and the wholesale
licence are to be subject to open market transactions.
13.
Webref also seeks a number of other orders
in order to determine the rights of parties engaged in the fuel
trade.
PRE-HEARING APPLICATIONS
14.
The main application and counterapplication
cannot be determined prior to the resolution of a number of
procedural issues. They
arise from various interlocutory applications
that were brought by the parties and contentions advanced in the
papers regarding
the procedural regularity of the way in which issues
were raised by reference. It was allege that little headway had been
made
in finalising them and accordingly the matter was directed for
case management.
15.
The interlocutory applications effectively
consist of:
15.1.
An application brought by Webref for a
separation of issues
15.2.
An application by Engen to declare that
Webref is not entitled to supplement its answering affidavit should a
point
in limine
which
it has taken or Part A of its second counterapplication not be upheld
15.3.
An application to strike out portions of
Webref’s answering affidavit on the grounds that they are vague
and embarrassing
as they seek to incorporate by reference court
papers in other litigation.
15.4.
A rule 35 (12) application brought by
Webref for certain documents;
SEPARATION
OF ISSUES
16.
The first matter to be determined is
whether all the issues are to be dealt with at one hearing or, as
contended for by Webref in
paragraphs 48 and 53 of their combined
answering affidavit cum founding affidavit to the counterapplication
that Part A of Webref’s
counter-application (supported by
paragraphs 59 to 62 of its founding affidavit) should be separated
from both the matters raised
in Engen’s founding papers and in
Webref’s first counterclaim.
17.
The starting point is rule 33(4) which
provides that;
'If, in any pending action, it
appears to the court mero motu that there is a question of law or
fact which may conveniently be
decided either before any evidence is
led or separately from any other question, the court may make an
order directing the disposal
of such question in such a manner as it
may deem fit and may order that all further proceedings be stayed
until such question has
been disposed of, and the court shall on the
application of any party make such order unless it appears that the
question cannot
conveniently be decided separately.'
18.
In
Denel
(Edms) Bpk v Vorster
2004 (4) SA
481
(SCA) Nugent JA said at para 3:
“
Rule
33(4) of the Uniform Rules - which entitles a Court to try issues
separately in appropriate circumstances - is aimed at facilitating
the convenient and expeditious disposal of litigation. It should not
be assumed that that result is always achieved by separating
the
issues. In many cases, once properly considered, the issues will be
found to be inextricably linked, even though, at first
sight, they
might appear to be discrete. And even where the issues are discrete,
the expeditious disposal of the litigation is
often best served by
ventilating all the issues at one hearing, particularly where there
is more than one issue that might be readily
dispositive of the
matter. It is only after careful thought has been given to the
anticipated course of the litigation as a whole
that it will be
possible properly to determine whether it is convenient to try an
issue separately.”
[1]
19.
I believe the caution expressed in
Denel
is apposite to the present case. The
requirement of convenience will not be met if the issues are
inextricably linked, if more than
one issue may be readily
determinative of the litigation, or after weighing up the potential
prejudice of delay to the other party
and of course the potential
inconvenience to the court or other parties. The convenience of the
court and the parties would have
regard to the amount of time that
might be saved if the separated issue was indeed dispositive of the
case or a major portion of
it, particularly if it can be neatly ring
fenced from the other issues, thereby avoiding the incurring of
unnecessary time and
costs.
20.
At face value separating the question of
whether there has been a settlement appears to be attractive. However
if one unwraps the
packaging it is evident that in substance Webref
in order to succeed in showing that the settlement agreement is
binding will have
to overcome the fact that the parties had not
concluded the extension agreement as required by clause 6.
In order to do so Webref readily
concedes in its affidavit that it will either have to demonstrate
that Engen waived the requirement
of that clause, or that Engen
frustrated the fulfilment of the condition, that Engen’s
termination of negotiations was unreasonable
and premature. This is
not a simple law point but would require a factual enquiry which it
can be anticipated will open up a Pandora’s
Box of evidence
regarding the reasonableness of the respective party’s position
on each term on which there was an impasse
and whether that
constituted a deadlock.
21.
Finally there is a fundamental point of
departure between the parties on this issue which may be resolved
rather on a point of interpretation:
the premise in
Adv
Hollander’s
argument on
behalf of Webref is that the parties were at liberty to re-negotiate
the methodology in terms of which the rental was
payable. Webref
contended that the rental should not be on a basic flat line
extension as contained in the proposed draft but that
the Regulatory
Accounts System (“
RAS
”)
should be considered since it now is “
the
applicable industry norm, or at the very least ought to be considered
and negotiated
” . However
Adv
van der Spuy
relies on the plain
wording of clause 6 which refers to an extension of the existing
notarial deed and also the surrounding circumstances
which led to its
formulation. It therefore appears that the foundation of the issue
which Webref seeks to have separated will itself
be subject to
scrutiny and evidence: a very unstable platform to justify that the
issue should not only be separated but also that
it should be heard
first.
22.
Accordingly the issues raised in Part A of
the second counterapplication may only be determinable after an
extensive hearing. It
is also likely that the question of a binding
settlement will be tied up in a consideration of the terms of the
notarial lease
which intrude on other issues raised in the papers
.
It would be extremely difficult if not
impossible to identify those paragraphs in the affidavits filed by
the respective parties
which relate exclusive to the issue that is
sought to be separated
.
On the basis that these issues would
have to be resolved through evidence there is the possibility that a
court will have to make
adverse credibility findings. This would not
be ideal if the matter is not resolved in Webref’s favour and
the same witnesses
testify later. In such a case it may preclude the
same judge from hearing the balance of the issues- an unsatisfactory
situation
where the resources of the judiciary would have already
been expended in having a judge go through what are already lengthy
papers
and what may amount to a hearing spanning well over a week.
23.
In the meanwhile on a
prima
facie
level it is not clear whether
Webref has provided an issuable answer in its papers to the factual
averments made by Engen regarding
the breaches it relies on to have
cancelled the agreement and to have afforded it the right to
evict Webref. In this regard
the Constitutional Court case of
Mighty
Solutions t/a Orlando Service Station v Engen Petroleum Ltd and
another
2016 (1) SA 621
(CC) may have
curtailed some of the arguments that otherwise may have been open to
Webref.
24.
In my view the considerations raised in
Denel
and
the other considerations mentioned in this judgment do not render
this a case to which the provisions of rule 33(4) should
apply. On
the contrary it is eminently more convenient to have all the issues
raised in the application and the counterapplications
heard together.
FAILURE
TO PLEAD OVER
25.
The second issue raised concerns Engen’s
complaint that Webref is not entitled to supplement its affidavit and
that it is
effectively barred from now doing so.
26.
The issue arises from para 63 of Webref’s
affidavit which reads
‘
Supplementing
this Affidavit
As necessary and in the event of
the point in limine and/or Part A of the Second Counter Application
nor being upheld the Respondent
may supplement this Affidavit and
seek appropriate leave to do so’
27.
The
terms of rules 6(1), (5) (d) (ii), (iii) and (e) clearly envisage
that the parties must in their respective affidavits set out
the
relevant issues and the evidence upon which they rely. These specific
sub-rules envisage only three sets of affidavits and
if a party
wishes to deliver a further set then, as our case law demonstrates,
there must be an application made to allow for its
introduction.
[2]
Such an application must
satisfactorily explain that the matter sought to be introduced only
came into existence subsequent to the
filing of that party’s
last set of affidavits, that the matter could not have been
reasonably anticipated or some other exceptional
ground that warrants
its introduction in the interests of justice
28.
It is appropriate to quote extensively from
Swissborough Diamond Mines (Pty) Ltd and
Others v Government of the Republic of South Africa and Others
1999
(2) SA 279
(T).
At
323H to 324C Joffe J said, in relation to a founding affidavit which,
a fortiori,
would
equally apply to a counterapplication that:
‘
An
applicant must accordingly raise the issues upon which it would seek
to rely in the founding affidavit. It must do so by defining
the
relevant issues and by setting out the evidence upon which it relies
to discharge the onus of proof resting on it in
respect
thereof. As was held in Prokureursorde van Transvaal v Kleynhans
1995
(1) SA 839
(T) at 849B in regard to a constitutional issue:
'Dit is myns insiens vir die
behoorlike ordening van die praktyk absoluut noodsaaklik dat
konstitusionele punte nie deur advokate
as laaste debatspunt uit die
mou geskud word maar pertinent in die stukke as geskilpunt geopper
word sodat dit volledig uitgepluis
kan word deur die partye ten
einde die Hof in staat te stel om dit behoorlik te bereg.'
The dictum is not only of
application to constitutional issues - it applies to all issues. Nor
is the dictum only of application
in the context of a founding
affidavit - it applies equally to answering affidavits and replying
affidavits. The more complex the
dispute between the parties the
greater precision that is required in the formulation of the issues.
See in regard to actions Imprefed
(Pty) Ltd v National Transport
Commission
1993 (3) SA 94
(A) at 106-7.
Further on at 326I the court
demonstrated the consequences of a party failing to make out a case
in the founding papers:
‘
The
plaintiffs failed to make out a case in the founding affidavit or the
document complaint for the inspection of those documents
in respect
of which first defendant claims legal professional privilege and
which are referred to in para 4.2 of the notice of
motion. Plaintiffs
seek to make out such a case in their replying affidavit. No reason
is advanced for their failure to do
so in the founding
affidavit or document complaint. In the circumstances no relief can
be granted in terms of para 4.2 of
the notice of motion
.’
29.
While there are exceptions to these
principles, it is preposterous to suggest that a party is entitled in
its papers to keep its
powder dry, or to be able to adopt a
Stalingrad type approach of raising one issue or one set of facts at
a time for determination
while reserving its right to raise others
should it be unsuccessful on those disclosed. Not only does this
result in pleadings
being open ended and puts the other party in the
unenviable position of not knowing what case it might ultimately have
to meet
but it opens the door for abuse.
The extract cited earlier from
Swissborough
in relation to adopting the dictum in
Prokureursorde van Transvaal v Kleynhans
to all matters also
resonates in the context of this case.
30.
There are of course circumstances where a
party will be allowed to add to the grounds of its claim or defence
after pleadings have
closed, or even on appeal. Nonetheless a party
cannot reserve to itself that right since such a proposition carries
implicitly
an assertion that a ground is already known and is being
withheld depending on the exigency of an unfavourable outcome. The
only
occasion that comes to mind where there is not such an implicit
assertion is where the facts cannot be dealt with by the one party
because they are peculiarly within the other party’s knowledge.
31.
I am satisfied that Webref cannot plead in
this way. It amounts to a failure to plead over. This opens up the
question of whether
they must apply for condonation for the delivery
of a supplementary affidavit and the date when such supplementary
affidavit (inclusive
of seeking condonation if required) is to be
delivered. The short answer is that a court cannot bar a party from
seeking condonation
at any stage. Each application is to be
determined on its own merit.
32.
However since Webref has raised the issue
in a manner that suggests that it has already contemplated the
matters it wishes to raise
if it is unsuccessful on the issues it has
mentioned then in order for this matter to be ripe for hearing there
must be a closure
to the sets of affidavits setting out relevant
issues and the evidence upon which they rely. Accordingly Webref must
be put on
terms to bring a proper application for condonation setting
out the matters it wishes to add to its papers and the court will
then
consider whether the requirements for condonation have been
satisfied.
INCORPORATION BY REFERENCE
33.
Engen objects to Webref incorporating by
mere reference the contents of its answering affidavit in the first
application under case
number 9595 / 2013. It contends that Webref
must repeat each answer previously given in its current answering
affidavit.
34.
There may be cases where an applicant has
withdrawn an application after the respondent has filed an answering
affidavit and simply
re-issued it in the identical form with possibly
some basic error being cured. Provided the allegations are identical
then there
can be no complaint if the respondent simply refers back
to its previous answering affidavit. After all, it is the applicant
that
elected for its own reasons to withdraw and re-issue the
application. This situation however postulates a direct correlation
between
the allegations made in the previous application with those
in the subsequent one.
The present case is different: Engen
has added a number of additional facts and documents to which the
bald denials of the answering
affidavit to the first application
cannot constitute a denial under oath. Moreover to allow a previous
answering affidavit to stand
as a response to a subsequent
application which contains a much fuller set of alleged facts might
result in a deponent being immunised
from the consequences of
possible perjury should the matter be referred to oral evidence.
35.
The founding affidavit in the main
application before the court is substantially different in content to
that in the proceedings
which were withdrawn. An answer which refers
to the previous answering affidavit does not comply with rule 6.
There is clearly
prejudice to Engen as there has not been a proper
engagement of all the matter raised in the founding affidavit.
36.
The issue appears to have extended to
another paragraph in the answering affidavit. In para 61 Webref
states that the entire set
of court papers in the Constitutional
Court case mentioned earlier and two Gauteng Provincial division
cases which comprise the
matters, facts and documentation “
are
all deemed to be incorporated herein, by reference”
37.
Webref states that the court papers in
those cases “
for all intents and
purposes, accord with the facts and circumstances pertaining to the
Second Main Application as well as Part
B of the Second Counter
Application”
and that they “
will
be made available to the above Honourable Court at the time of the
hearing of the relevant argument in relation to these issues.
38.
One would think that the proposition only
has to be stated for it to be rejected. A formulation as broad as
this in an affidavit
fails to define the issues between the parties
and does not place the essential evidence before the court seized
with the matter.
Neither the court nor the other party will know
prior to the hearing what is in issue.
39.
Swissborough
is
again directly in point. At 324F-G the court said:
‘
Regard
being had to the function of affidavits, it is not open to an
applicant or a respondent to merely annexe to its affidavit
documentation and to request the Court to have regard to it. What is
required is the identification of the portions thereof on
which
reliance is placed and an indication of the case which is sought to
be made out on the strength thereof. If this were not
so the essence
of our established practice would be destroyed. A party would not
know what case must be met. See Lipschitz and
Schwarz NNO v
Markowitz
1976 (3) SA 772
(W) at 775H and Port Nolloth
Municipality v Xahalisa and Others; Luwalala and Others v Port
Nolloth Municipality
1991 (3) SA 98
(C) at 111B—C’.
40.
The contents of the paragraph which
Engen complains of would also be difficult to fathom now that the
outcome of the constitutional
court case favoured Engen. Furthermore
the issue may be rendered moot because of the outcome of that case.
Unlike the previous
situation the failure to set out specifically the
issues and facts relied on can be predicted and arguments may simply
run in circles.
Accordingly in this instance no useful purpose would
be served in requiring condonation. Webref will however be place on a
time
constraint to properly reply to the contents of the founding
affidavits and supporting documents and if so minded to expressly
raise the matters, facts and documents alluded to in para 61 of its
affidavit on which it relies. If it fail to do so by that date
then
the matter will proceed on the basis that there is no denial to the
allegations contained in the founding affidavit and that
the contents
of para 61 are struck out, subject always to a successful application
for condonation.
RULE 35(12)
41.
Webref issued a rule 35(12) notice calling on
Engen to produce all the notarial deeds of lease entered into between
it and its various
landlords which were mentioned in para 70 of
Engen’s final set of affidavits (being a reply to its main
application and an
answer to Webref’s counterapplication).
42.
Adv Hollander contends that the mere reference by
an opposing party in its affidavit to a document triggers an
entitlement to its
production under Rule 35(12) and refers to cases
such as Machingawuta
and Others v Mogale
Alloys (Pty) Ltd and Others
2012 (4) SA
113
(GSJ) at para 13 and
Magnum Aviation
Operations v Chairman, National Transport Commission and Another
1984
(2) SA 398
(W). He however indicated that
Governing
Body, Hoërskool Fochville and Others v Centre for Child Law
2014 (6) SA 561
(GJ) had
qualified these decisions. Reference was also made to the incidence
of the
onus
.
43.
Adv van der Spuy contended that the reference was
made simply in passing “
as an aside”
in response to an allegation made by Webref
in its earlier affidavit. The paragraph in Engen’s affidavit
reads:
“ …
I
need to point out that the contents of the notarial deed of amendment
which are said to have been ‘unilaterally imposed’
are
standard terms similar to those generally found in all the notarial
deeds of lease entered into between Engen and its various
landlords”
44.
Accordingly the issue of relevance must be
addressed particularly if this court is to go into greater detail
with regard to whether
or not clause 6 properly interpreted was
intended to allow the parties to renegotiate the formula under which
the rental was to
be paid; albeit that at this stage the court would
be limited to the papers filed as the leading of
vive
voce
evidence was not raised.
45.
Although the Supreme Court of Appeal reversed the
decision in
Hoërskool Fochville
,
at para 18 of its judgement reported as
Centre
for Child Law v Hoërskool Fochville and another
2016
(2) SA 121
(SCA) Ponnan JA said the following:
“
I entertain
serious reservations as to whether an application such as this should
be approached on the basis of an onus. Approaching
the matter
on the basis of an onus may well be to misconceive the nature
of the enquiry. I thus deem it unnecessary
to attempt to resolve the
disharmony on the point. That notwithstanding, it is important to
point out that the term onus is not
to be confused with the burden to
adduce evidence (for example, that a document is privileged or
irrelevant or does not exist).
In my view the court has a
general discretion in terms of which it is required to try to strike
a balance between the conflicting
interests of the parties to the
case. Implicit in that is that it should not fetter its own
discretion in any manner and particularly
not by adopting a
predisposition either in favour of or against granting production.
And, in the exercise of that discretion, it
is obvious, I think, that
a court will not make an order against a party to produce a document
that cannot be produced or is privileged
or irrelevant.”
46.
It is evident that rule 35(12) is not the
determinator, but rather the principles governing an application
under rule 30A, which
is the basis upon which a failure to comply
with a rule 35(12) notice is brought and considered by a court.
47.
In my view
there is no real dispute concerning the reason for extending the
notarial lease for a further 5 years whereas a notarial
lease of this
nature is for a ten year period. On the papers before me it was only
a timing issue in an attempt to enable the service
station business
to be sold. The reformulation of the underlying calculation was not
contemplated. Accordingly on the governing
principles relating to the
interpretation of contracts
[3]
the term “
extended
for
a further period of 5 (five) years”
refers
to an extension of the existing lease with provision for an escalated
rental.
48.
In reaching this conclusion I
bear in mind that reference has only been made to the papers before
me and that there appears to be
unanimity between the parties as to
the reason for introducing the clause.
49.
It becomes unnecessary to
consider the other arguments raised. Nonetheless it is a factor when
applying the principles which guide
a court in a rule 30A application
to have regard to the massive amount of documents that may have to be
produced where the issue
is identified by Webref to be a case
concerning the prevailing “
industry
norm”.
That
would suggest a far broader analysis of the formula adopted by the
leading petroleum wholesalers. I must also bear in
mind that
Engen contends that the RAS formula does not apply to its head leases
only to its franchise agreements.
50.
Moreover Engen identified all
notarial leases currently in existence between it and its various
franchisees. The number 520. It
has tendered both these and those not
yet registered since December 2013. The list is contained in
Annexures BT1.1 to BT1.10 and
BT 2. Engen tendered copies of these
leases.
51.
Since I have found that the
documents are not relevant the tender does not result in Webref being
entitled to costs. Quite the opposite.
Moreover it continued to
modify its request to seek fewer and fewer of the documents as time
went by but was still not content
with those that were tendered.
ORDER
52.
I make the following order:
1.
The application by Webref under 33(4) is
dismissed
2.
Paragraph 63 of Webref’s answering
affidavit cum founding affidavit to its second counterapplication
(‘Webref’s
affidavit’) is struck out and if Webref
intends to raise any other matter contemplated in para 63 then:
a.
It must bring an application for
condonation to do so with a supporting affidavit and setting out the
relevant issues it wishes
to introduce and the evidence upon which it
relies in compliance with rule 6;
b.
The application must be delivered by no
later than 1 August 2017
3.
Paragraphs 56 and 61of Webref’s
affidavit are struck out and Webref is afforded until 1 August to
deliver a supplementary
affidavit which sets out precisely what
allegations in the founding and confirmatory affidavits of Engen it
takes issue with and
the evidence upon which it relies. Engen will be
entitled to deliver a supplementary reply within 10 (ten) days of
service.
4.
Engen shall produce the documents it
tendered on written request by Webref’s attorneys, and which
are identified in Annexures
BT1.1 to BT1.10 and BT2.
5.
Webref’s rule 35(12)
application is dismissed
6.
Webref is to pay the party and party costs
of each of the applications to which these orders relate.
________________
SPILG,
J
DATE
OF JUDGMENT: 3 July 2017
FOR
THE APPLICANT: Adv C van der Spuy
Lanham-Love
Attorneys
FOR
THE RESPONDENT: Adv L Hollander
Barry
Aaron & Associates
[1]
See its
application by Lewis JA in
Eskom
Holdings Ltd v Halstead-Cleak
2017 (1) SA
333
(SCA) at para 27
[2]
The
relevant provisions to Rule 6 are;
(1)
Save where proceedings by way of
petition are prescribed by law, every application must be brought on
notice of motion supported
by an affidavit as to the facts upon
which the applicant relies for relief.
(5)(d) Any
person opposing the grant of an order sought in the notice of motion
must-
(ii) within
fifteen days of notifying the applicant of his or her intention to
oppose the application, deliver his or her answering
affidavit, if
any, together with any relevant documents; and
(e) Within 10 days of the service
upon the respondent of the affidavit and documents referred to in
subparagraph (ii) of paragraph
(d) of subrule (5) the applicant may
deliver a replying affidavit. The court may in its discretion permit
the filing of further
affidavits.’
[3]
‘
The
fundamental consideration in determining the terms of a written
contract or its application to an event that arose during
the course
of their relationship is to discern the intention of the parties
from the words used in the context of the document
as a whole, the
factual matrix surrounding the conclusion of the agreement and its
purpose or (where relevant) the mischief it
was intended to address
(
KPMG
Chartered Accountants (SA) v Securefin Ltd and Another
2009 (4) SA 399
(SCA) at para 39 and
Novartis
SA (Pty) Ltd v Maphil Trading (Pty) Ltd
2016(1) SA 518 (SCA) at paras 27, 28, 30 and 35).’
Since
at least
Swart en 'n Ander v Cape Fabrix (Pty) Ltd
1979(1) SA
195 (A) at 202C and
List v Jungers
1979 (3) SA 106
(A) at
118G-H the Supreme Court of Appeal (‘the SCA’) and its
predecessor have stated that one considers the contentious
words by
having regard to their context in relation to the contract as
a whole and by taking into account the nature and
purpose of the
contract . See also
Natal Joint Municipal Pension Fund v Endumeni
Municipality
2012 (4) SA 593
(SCA) para 18 Wallis JA.