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[2010] ZAGPJHC 116
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Edge Distributors CC v Minco Resources 202 (Pty) Ltd and Others (2010/12065) [2010] ZAGPJHC 116 (22 November 2010)
NOT REPORTABLE
SOUTH GAUTENG HIGH COURT, JOHANNESBURG
CASE NO
:
2010/12065
DATE:
22/11/2010
In the matter between:
EDGE
DISTRIBUTORS
CC
..................................................
Applicant
and
MINCO
RESOURCES 202 (PTY)
.........................................
First
Respondent
VIZIRAMA
148 (PTY)
LTD
.....................................................
Second
Respondent
JM
KRUGER T/A
DTZ
...........................................................
Third
Respondent
D.
GERBER
…........................................................................
Fourth
Respondent
DC
BUTLER
….......................................................................
Fifth
Respondent
______________________________________________________________
J U D G M E N T
______________________________________________________________
LAMONT, J
:
[1] The applicant brings an
application against the first respondent for payment of commission.
During 2007 certain persons concluded
a written contract as sellers
with the first respondent as purchaser. Under and in terms of that
contract the purchase price comprising
US $44 million was to be paid
by the purchaser to the seller as to US $ 40 million in respect of
the purchase price and US $4 million
(in respect of commission due to
DTZ and Edge in the proportions separately agreed between them). All
payments were to be made
into the bank account nominated by the
sellers. The parties to the contract were identified to include in
amongst others, DTZ
and Edge the applicant. References to the
agreement were to include the agreement and all annexures to it. The
contract contained
general provisions as follows:
“
16.2
No agreement or arrangement between the parties in terms of which:
any of the provisions
hereof are cancelled, amended or added to; or
this agreement is cancelled in its entirety;
shall be binding upon the parties or be of any force or effect
unless such agreement or arrangement is reduced to writing and signed
by the parties or by their duly authorised agents.
16.3 No indulgence …
shall under any circumstances be deemed to be a waiver by such party
of any of its rights against the
others … or to be a novation
… or to create a precedent … and such party shall be
entitled at any time to
demand strict and punctual fulfilment of all
the other parties’ obligations hereunder …
”
[2] The reference in the
contract to DTZ is a reference to the third respondent. This contract
is known as the Vizirama contract.
The contract did not contain any
arrangement between DTZ and the applicant concerning commission. The
arrangement between DTZ and
the applicant concerning commission is to
be found in a document dated 30 October 2007 signed by the applicant,
DTZ and one Butler.
In terms of that contract commission in respect
of the sale of Vizirama and Nuco shares to Minco pursuant to two
sales agreements
(the Vizirama contract and the Nuco contract)
producing a total amount of commission of US $5 million was to be
split in a particular
way. The Vizirama contract generated some US
$4 million as commission and the Nuco contract generated some US $1
million as commission.
[3] The submission was made that
although that document was not portion of the Vizirama contract that
it was governed by the terms
of the Vizirama contract as it was an
annexure thereto. It was not an annexure thereto. The further
submission was made that
it was part of the Vizirama contract as the
commission clause directed that commission be paid to DTZ and the
applicant in the
proportion separately agreed between them; as the
document determined what the proportions were which had been agreed
between them
it formed part of the contract. So far from forming
part of the contract in my view it does not. The Vizirama contract
contemplated
a payment of an amount of the total commission into the
bank account nominated by the sellers. It was of no concern to the
buyer
what the proportions were which had been agreed between them
recipients of the commission. That was a matter which they themselves
would deal with. All that was required of the purchaser, first
respondent, was that it pay the amount into the bank account
nominated.
That would constitute a payment to the sellers by way of
payment to the sellers account for the credit of applicant and third
respondent.
[4] The relevance of this
analysis is that it is claimed that the commission recipients
identified in the contract signed by them
on 30 April 2007
subsequently orally varied the terms of that contract. The
applicant’s primary submission was that no evidence
could be
received of the variation as it was excluded by the provisions of the
clause in the Vizirama contract referred to above
prohibiting
variations otherwise than in writing. By reason of the analysis
supra
this submission must fail. If there was any oral variation such oral
variation would be effective.
[5] The secondary submission was
that there was a dispute of fact concerning what the terms of the
oral variation contract had
been. The third respondent claimed that
an oral contract had been concluded under and in terms whereof the
applicant would receive
the whole commission valued at US $1 million
from the commission payable under the Nuco contract only. The
applicant would receive
no monies from the Vizirama contract. The
oral contract claimed by the third respondent is set out in an email
dated 26 November
2007 which reflects the applicant as receiving only
the monies from the Nuco contract as commission. The reasons were
set out
in an email as follows:
“
I
would prefer and we have agreed that my agency responsibility is only
in respect of Vizirama and your agency responsibility is
only in
respect of Nuco … The commission sharing arrangement between
… will therefore be as follows …
”
Later during 2008 the deponent to
the applicant’s founding affidavit either acting personally
having acquired the rights from
the applicant or representing the
applicant signed a second Nuco contract reflecting that an amount of
US $900 000 was payable
as commission to Van Zyl as agent for the
sellers. This was the whole commission payable under the fresh Nuco
contract. During
April/May 2009 a second Vizirama contract was
signed reflecting that the whole commission in terms of the second
Vizirama contract
was some R18,7 million. Payment was to be made to
the third respondent by way of paying a non-resident shareholder. The
second
Nuco and Vizirama contracts replaced the Nuco and Vizirama
contracts.
[6] The oral contract between
the recipients of commission reflecting that the applicant was not a
recipient of commission from
the Vizirama contract and would only
receive commission of the Nuco contract is evidenced by these
contracts. The applicant is
not a signatory to the second Vizirama
contract.
[7] The commission due under the
second Nuco contract was never paid as the contract failed.
[8] Currently the applicant seeks
commission under the Vizirama contract without regard to the
existence of the alleged oral contract
and the written contracts
re-adjusting the commission.
[9] The submission was made that
at worst for the applicant there was a dispute of fact.
[10] I do not wish to deal in
depth with this issue as the applicant may wish to proceed by way of
action against the respondents.
Suffice it to say that the dispute
between the parties which ultimately arose in the application is
material and was well-known
to the applicant prior to the launch of
the application. The applicant relied for the solution to the dispute
of fact on the existence
of the non-variation clause which I have
found does not assist it. If I refer the matter to trial it is as
good as if the matter
begins afresh. There is no saving in costs and
the respondents are held out of costs which they otherwise would have
received.
In my view the application should be dismissed with costs.
[11] The order which I make is:
“
Application
dismissed with costs including, the costs of two counsel where they
were employed.
”
_____________________________
C
G LAMONT
JUDGE OF THE SOUTH GAUTENG
HIGH COURT, JOHANNESBURG
Counsel for Applicant : Adv. L.J. Morrison SC
Attorneys for Applicant : Earle Friedman Attorneys
Counsel for First Respondent : Adv. J. Roux
Attorneys for the First Respondent : R. Le Roux Inc
Counsel for the Third Respondent : Adv. K.W. Lüderitz
Attorneys for the Third
Respondent : Werksmans Incorporating
Date of hearing : 10 November 2010
Date of Judgment : 22
November 2010