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[2014] ZASCA 35
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Warren Bowles Corporation Communications CC v Rheinmettal Denel Munion Ltd (130/2013) [2014] ZASCA 35 (28 March 2014)
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Case
no
:
130/2013
Reportable
In
the matter between:
WARREN
BOWLES CORPORATION
COMMUNICATIONS
CC
........................................................................................
Appellant
and
RHEINMETTAL
DENEL MUNITION
LTD
........................................................
Respondent
Neutral
citation:
Warren Bowles Corporation
Communication CC v Rheinmettal Denel Munition Ltd
(130/2013)
[2014] ZASCA 35
(28 March 2014)
Coram:
Ponnan, Mhlantla, Theron and Willis JJA and Swain
AJA
Heard:
25 February 2014
Delivered:
28 March 2014
Summary:
Contract – action for an account
and debatement thereof.
ORDER
On
appeal from:
South Gauteng High Court,
Johannesburg (Saldulker J sitting as court of first instance):
1
The appeal against paragraph d of the order of the court below is
allowed and the order is amended by the deletion of that paragraph.
Subject thereto and paragraphs e, f and g being renumbered d, e and f
respectively, the order of the court below is confirmed.
2
Save as is set out in paragraph 1 hereto, the appeal is dismissed
with costs.
JUDGMENT
Theron
JA (Ponnan and Mhlantla JJA and Swain AJA concurring):
[1]
This appeal relates to the entitlement of the respondent, Rheinmettal
Denel Munition Ltd (RDM), to a statement of account and
if necessary,
the payment of such moneys as may be found to be due to it upon the
debatement of such account, by the appellant,
Warren Bowles
Corporation Communication CC (the close corporation).
[2]
On or about 19 February 2010 the parties entered into a partly
written and partly oral agreement (the main agreement), in terms
whereof the close corporation, upon payment of the agreed sum of R8,5
million, agreed to organise a special event for RDM, which
involved a
demonstration of the products manufactured by the latter. The
demonstration was scheduled for 10 to 14 May 2010. The
written
portion of the agreement recorded that. It was recorded that RDM
reserved the right to cancel the event up to 8 March 2010
and if
cancelled around 8 March 2010, a forty per cent cancellation fee
would be applicable. It was further agreed that RDM would
pay forty
per cent of the cost in advance for the demonstration.
[3]
On 4 March 2010, RDM paid an amount of R3 million to the close
corporation, which constituted forty per cent of the agreed price,
excluding Value Added Tax (VAT). On 8 March 2010 RDM decided not to
proceed with the demonstration but to postpone it to an unspecified
date in 2011. RDM notified the close corporation of its decision on 8
or 9 March 2010. It was undisputed that prior to the decision
not to
proceed with the event, the close corporation had performed certain
services pursuant to the main agreement, including developing
a
website in preparation for the event.
[4]
It was common cause between the parties that as the main agreement
did not provide for what was to happen in the event of a
postponement
(as opposed to a cancellation) of the event; and as certain disputes
arose between the parties, in particular as to
what was to happen to
the moneys that had been paid by RDM to the close corporation in
terms of the main agreement. The parties
thus met on 7 April 2010 in
Somerset West, when according to RDM, a further agreement (the
further agreement) was concluded under
which the matters in dispute
were settled. The meeting was attended, on the one hand, by a number
of senior executives in the employ
of RDM including Mr Marcel Mbuyu,
Mr Marius Zikmann, Mr Norbert Schultze and on the other, by Mr Warren
Bowles, the sole member
of the close corporation.
[5]
On 25 August 2010 RDM’s legal representatives addressed a
letter of demand to the close corporation in which it stated,
with
reference to the further agreement, that it had been agreed that the
close corporation would account to RDM for all liabilities
incurred
in respect of the main agreement and reimburse RDM to the extent that
the payment made by RDM exceeded the total liabilities
incurred. A
demand was also made in the letter for the close corporation to
provide a detailed account to RDM. The response of
the close
corporation is contained in a letter dated 31 August 2010 and written
by its legal representatives, which in relevant
part, reads:
‘
We
deny that the Agreement was varied as alleged or at all. We are
instructed that our client, on a completely without prejudice
basis,
and as a show of good faith in order to maintain its business
relationship with your client, undertook to negotiate terms
with its
suppliers and/or sub-contractors in order to reduce the cancellation
fee. Our client further
undertook to
attend to reconciliation in this regard,
and provide your client with the details of a refund, if any. Our
client attended to the aforegoing and informed your client that
it
was prepared to refund the sum of R491 886.00 to your client on
a without prejudice basis. It subsequently transpired however
that
your client was dissatisfied with the aforegoing refund and demanded
a repayment of a larger portion of the said deposit.’(Underlining
for emphasis.) Vol 4 para9 page: 506
[6]
Asserting that the close corporation had breached the further
agreement,
inter alia
,
by failing to account to it, RDM instituted action against the former
in which it sought as its primary relief a statement and
debatement
of account and in the alternative damages.
[7]
The initial plea filed on behalf of the close corporation was in all
material respects identical to its response to the letter
of demand
from RDM. The plea further records that Mr Bowles attended to the
reconciliation and informed RDM that it was prepared
to refund the
sum of R491 886 to it. Thereafter the initial plea was amended, and
in terms of the amended plea, the close corporation
denied the
existence of the further agreement. It alleged instead that RDM had,
on 9 March 2010, cancelled, alternatively repudiated,
the main
agreement. The close corporation filed a counterclaim in which it
claimed payment of the amount of R420 000 being
what it
contended was the VAT, which RDM had failed to pay as it was obliged
to in terms of the main agreement.
[8]
The high court (Saldulker J) found in favour of RDM and issued the
following order:
‘
a.
The Defendant is directed to furnish a full account, together with
all supporting documents, of all liabilities, including due
and
proper allowance for the Defendant’s fee and profit, incurred
by the Defendant up to 7 April 2010, pursuant to the agreement
concluded between the parties on 19 February 2010;
b. A debatement of
the aforesaid account;
c. Payment of such
amount which may be found to be due to the Plaintiff upon the
debatement of account;
d. Alternatively to
(a), (b), and (c) above, payment of the sum of R1 438 086,00
as and for damages;
e. Interest on any
amount payable as above, at the prescribed legal rate from date of
demand, being 1 September 2010, to date of
payment;
f. Costs of suit;
g. The defendant’s
counterclaim in the amount of R420, 000 is dismissed with costs.’
It
is against this order that the close corporation appeals, with the
leave of the high court.
[9]
The order of the high court grants RDM relief on both the main and
the alternative claims. Counsel for RDM conceded, both at
the hearing
of the application for leave to appeal in the high court and in this
court that the high court had erred in doing so.
RDM accordingly
abandoned the relief granted to it in terms of paragraph d of the
order of the high court. That order cannot stand
and it must be
amended accordingly.
[10]
In
Doyle
& another v Fleet Motors PE (Pty) Ltd
,
[1]
Holmes JA set out the general requirements for obtaining relief of
the kind sought by RDM. The learned judge noted that a claimant
for
such relief should aver:
‘
(
a
)His
right to receive an account, and the basis of such right, whether by
contract or by fiduciary relationship or otherwise;
(
b
)any
contractual terms or circumstances having a bearing on the account
sought;
(
c
)the
defendant's failure to render an account.’
[2]
Each
case must be decided on its own facts ie the particular acts or
conduct of the parties and the surrounding circumstances.
[3]
The question therefore is whether the undertaking given during the
course of the April meeting had contractual force. In my view,
the
construction that Mr Bowles, by his conduct, put upon the undertaking
(
Breed
v Van den Berg
1932
AD 283
at 292) as well as a number of objective factors all tend to
indicate that he intended that undertaking to constitute a concluded
bargain on that issue.
[11]
Mr Bowles, as is apparent from his attorney’s letter and
original plea, did not dispute that he gave certain undertakings
at
the meeting held on 7 April 2010. What he disputed is that amongst
these undertakings was one to account to RDM as claimed by
the
latter. Although other issues were sought to be ventilated at the
trial, it is that relatively narrow dispute upon which the
case
turns. In an e-mail written by Mr Bowles to Mr Zikmann on 15 July
2010, he records that he had approached suppliers in order
to
negotiate reasonable cancellation fees and had prepared a
reconciliation which established that a refund of R491 886 was
due to RDM. In the same e-mail Mr Bowles requested RDM’s
banking details so he could transfer the refund into RDM’s
account. The e-mail written by Mr Bowles to Mr Schultze dated 26 July
2010 continues in a similar vein. In that e-mail Mr Bowles
set out a
breakdown of how he reached the surplus amount of R491 886 and
tendered to repay it to RDM or to retain it and use it
towards the
cost of a similar future event mooted for 2011. His computation of
the refund tendered is as follows:
‘
The
non-refundable deposit of R3,000,000 was reduced to R2, 200,100 ….
Of the R2, 200,100
paid:
R320,000 was spent
in various areas (Flights, Meetings, Web and Brochure Development,
Concept and planning meetings with in-house
and suppliers etc) ….
R1, 050,100 was
cancellation money to suppliers …..
R830,000 was
cancellation money ….’
[12]
The subsequent conduct of Mr Bowles, as evidenced from the e-mails
referred to above, namely, negotiating with suppliers, attempting
to
do a reconciliation and the tender to repay the surplus to RDM, is
all consistent with him having undertaken to account to RDM
at the
April meeting. All of that was consistent with him still believing
that the main agreement was in force. He at no stage
disavowed that
he had given an undertaking to refund the balance of the money paid
to RDM. His e-mails confirm that he was prepared
to repay the refund
to RDM. That he plainly was not obliged to do in terms of the main
agreement.
[13]
It was only when Mr Bowles testified in the high court that he denied
having given the relevant undertaking upon which RDM
relied. Relevant
portions of his evidence, in respect of the initial plea filed on
behalf of the close corporation, reads:
‘
The
allegation is that an agreement was reached on the 7 April and in
relation to that you presumably instructed your attorneys
to plead as
follow and let us go through it. The defendant on . . . [indistinct]
without prejudice basis and as a show of good
faith in order to
maintain its business relationship and may I just stop there and say
that it is not really relevant why you did
it, but what you undertook
to do or the defendant undertook to do was to negotiate terms with
its suppliers and subcontractors
in order to reduce the cancellation
fee. That is the first element of an admission made by you as to what
the defendant undertook.
Now that is in line with the evidence that
has been adduced on behalf of the plaintiff that the meeting of 7
April you gave certain
undertakings, agreement was reached that you
would do certain things. Now 10.1.1 of your plea is to the effect
that you undertook
to negotiate terms with suppliers and
subcontractors in order to reduce the cancellation fee. Did you agree
to do that? --- No.
In
10.1.2 you further, it is further claimed on your behalf that you
undertook to attend to a reconciliation statement. A reconciliation
statement in regard to whatever reduced costs had been incurred or
negotiated, do you see that? --- I see that.
Did you undertake to
attend to a reconciliation … [intervenes]. - - - No.
…
And did you
undertake to … furnish the plaintiff with details of the
refund that you would make? --- No, ….’
[14]
But on that score his evidence was not consistent, for at another
point in his evidence, Mr Bowles admitted that he had given
certain
undertakings to RDM at the April 2010 meeting but attempted to escape
the consequences of that by alleging that he had
been under pressure
from RDM at the time and had given the undertaking sought, to
maintain a good business relationship with it.
It is necessary,
because of the importance of this issue, to refer to Mr Bowles’s
evidence in this regard:
‘
And
I am putting to you it is as plain as a pikestaff in paragraph 10.1
[of the original plea] and the subparagraph thereof that
you admit
that you undertook to do certain things as set out in these
paragraphs. You must acknowledge that surely, Mr Bowles.
--- I
acknowledge that they are there I do not acknowledge them under the
terms that is being applied. I was again under extreme
pressure from
the management to come up with some kind of something and I did do
that.
It may have been
that you felt you were under pressure or you were motivated by client
retention motives or whatever be the case,
but the fact of the matter
is it appears you gave these undertakings and the answer you have
just given seems to confirm that.
--- It was not about sitting in a
meeting and agreeing that I would do it.
…
.
These instructions
were given to your legal team after the event when you were no longer
under pressure, not so? --- I was always
under pressure.
Well
you were not under the kind of pressure you have been hinting at in
your answers to my questions. And in those circumstances
you
furnished these instructions to your legal team, not so? --- Well we
communicated them yes.’
Mr
Bowles’ motives for binding the close corporation to the
further agreement are irrelevant. His failure to adequately explain
the initial plea, the contradictions in his evidence and the further
contradictions between his evidence and the various correspondence,
including the response to the letter of demand and the initial plea
of the close corporation, not only impacts adversely on his
credibility as it relates to a substantive issue in this matter, but
also serves to corroborate RDM’s claim that he had indeed
undertaken at the April meeting to account to it.
[15]
It was argued that the evidence of Mr Mbuyu and Mr Zikmann did not
accord with the pleadings and the court, should, as a result
make an
adverse credibility finding against them. In the particulars of claim
filed on behalf of RDM it is alleged that the parties
had, in terms
of the further agreement, agreed that the close corporation would
render an account to RDM for all liabilities incurred
by it.
Accordingly, so the argument proceeded, RDM had not made any
allowance for the close corporation’s fees and profits.
But the
evidence of Mr Mbuyu and Mr Zikmann clarified that the close
corporation would be entitled to claim its fees as well as
a profit.
Their evidence thus gives flesh to the pleadings.
[16]
Finally, it was submitted that an account should not be ordered
because it may lead to yet further proceedings between the
parties. A
similar argument was advanced and rejected, correctly in my view, by
the court in
Afrimeric
Distributors (Pty) Ltd v E I Rogoff (Pty) Ltd
,
[4]
where Ettlinger AJ stated:
‘
That
may be perfectly true, but every time an order is made for an account
and debatement, whether by application or otherwise,
the consequence
may be a subsequent action if, as a result of the rendering of the
account and the attempted debatement, the parties
are still unable to
agree.’
[17]
It follows, in my view, that RDM has satisfied the requirements as
set out by Holmes JA in
Doyle v Fleet
Motors PE (Pty) Ltd
and the high court
thus cannot be faulted for concluding that RDM had established that
the parties had agreed to deal with the
postponement of the event on
the basis that Mr Bowles would submit an appropriately substantiated
account to RDM. It follows that
the appeal must fail.
[18]
For these reasons the following order is made:
1 The appeal against
paragraph d of the order of the court below is allowed and the order
is amended by the deletion of that paragraph.
Subject thereto and
paragraphs e, f and g being renumbered d, e and f respectively, the
order of the court below is confirmed.
2
Save as is set out in paragraph 1 hereto, the appeal is dismissed
with costs.
L V THERON
JUDGE OF APPEAL
Willis
JA:
(
dissenting
):
[19]
Having had the benefit of reading the judgment of Theron JA, I regret
that I cannot concur therein. This case turns on whether:
(a) on 7
April 2010 the parties agreed upon a legally enforceable variation of
the agreement concluded between them on 19 February
2010 and (b) if
so, whether the agreement was in the terms claimed by RDM.
[20]
In my opinion the high-water mark for RDM is that Mr Bowles, at that
meeting on 7 April 2010 at which several representatives
of RDM and
the he (Mr Bowles) alone were present, undertook to look into
the matter, obtain further advice and information
and then revert to
RDM with a view to reaching an amicable settlement in the matter. As
no such settlement was reached, the agreement
of 19 February 2010
remained in force in the terms concluded at that date. Accordingly, I
should have upheld the appeal and granted
an order in the terms
sought by the appellant.
[21]
I come to the conclusions which I do bearing in mind: (a) the classic
principle of the onus in civil trials that ‘The
person who
asserts must prove’ set out in the
Corpus
Juris Civilis
as:
‘
Semper
necessitas probandi incumbit illi qui agit
’
[5]
(which translates literally as ‘The requirement of proof always
falls on the person who brings the action’) and (b)
whether the
credibility of RDM’s witnesses is so good, when evaluated
against that of the appellant’s own testimony,
that it compels
a finding against the probabilities in this case, mindful of the fact
that, when all factors are equipoised, the
probabilities will
prevail.
[6]
[22]
The following are the facts upon which to determine the
probabilities:
(a) The decision not
to stage the demonstration - for which the close corporation had
received payment - for the period from 10
to 14 May 2010 and to
postpone it was taken by RDM and not Mr Bowles.
(b) The meeting on 7
April 2010 was at the instance of RDM and not Mr Bowles.
(c) The meeting took
place at the premises of RDM in Somerset-West;
(d) At the meeting
there were five representatives of RDM present and only Mr Bowles for
the close corporation.
(e) There were
neither lawyers nor duly appointed representatives of the accountancy
profession present.
(f)
Other
than that the postponement of the demonstration was to be discussed,
Mr Bowles had no precognition of what would be discussed
at the
meeting and in particular had no idea that he would be called upon to
agree to render an account of ‘all liabilities
(sic)
[7]
incurred by RDM to the date pursuant to the agreement, a ‘debatement’
of the aforesaid account’ and that, whether
or not it did so,
RDM would nevertheless claim damages.
(g) Mr Bowles was
offered no tangible or digestible ‘sweetener’ in, for
example, a lump sum payment or a percentage
of the amount by which
the expenses would have been reduced (the reduction of charges by the
close corporation’s suppliers
was an idea which was mooted at
the meeting).
(h) Mr Bowles was
entitled to a cancellation fee of 40% of the contract price in the
event that RDM ‘cancelled’ the
contract.
(i) At the time of
meeting the representatives of RDM, Mr Bowles would have had no
precise knowledge of (i) which of his suppliers
had been paid; (ii)
how much each had been paid and the extent to which they would accept
a reduction, if any, in the amount due
to them.
(j) The nature of
the Mr Bowles’ business is that it would have generated revenue
for itself purely out of profits rather
than any fees it might
charge.
(k) RDM’s
interest would have been in the extent of the appellant’s
actual disbursements rather than its ‘liabilities’
as set
out in the relief claimed and the order granted.
(l) No other terms
and conditions for the ‘postponement’ were either
discussed at the meeting, never mind agreed upon.
(m)
The
legal remedy of the rendering of an account and a debate thereof
falls naturally in situations where there is a fiduciary relationship
between the parties but not in a relationship such as that between
the parties even though, as a matter of law, they may contract
to do
so.
[8]
(n) The legal remedy
of ‘rendering an account and a debate thereof’ is a ‘term
of art’, not widely known
among persons who are not lawyers
other than accountants, builders and quantity surveyors and is, as
matter of fact and law, technical
(‘regs-tegnies’) in its
nature.
(o) Mr Bowles had
been an ‘events organizer’ for approximately 30 years and
was accordingly no ‘babe-in-the-woods’.
(p) Had he agreed to
the variation as claimed by RDM he would have been so naïve as
to have made Moses in the bulrushes seem
like a scheming charlatan.
(q) Mr Bowles had to
do his best to protect his situation while, at the same time, keeping
RDM ‘sweet’ in the hope that
his services would continue
to be used in future.
[23]
On 21 July 2010, Mr Marius Zikmann, RDM’s project manager, sent
an email to Mr Bowles in which he said:
‘
As discussed,
it would clear the air if you can give him (Mr Norbert Schulze, RDM’s
chief executive officer) some background
as to the possible savings
we might incur if we continue using the same suppliers for next
year’s event since a lot of work
are (sic) done and equipment
procured for the event. It would be first prize if you can prepare
and put facts and figures on the
table during your meeting next week.
RDM will be more than willing to contract immediately for next year’s
event’.
This perspective is
reflected in Mr Zikmann’s evidence under cross-examination
where he says:
‘
The purpose
of the meeting (i. e on 7 April 2010) was to get Mr Bowles around the
table which we did in the past, now things have
changed, so we need
to see how we are going about to the, for the postponed event. So
that was merely the purpose of it’.
These
aspects of Mr Zikmann’s evidence are consistent with Mr Bowles’
version of events that all that the parties had
undertaken to do was
to explore possibilities as to how best to salvage the situation. The
fact that RDM made no attempts to negotiate
the way forward also
casts doubt on the integrity of its witnesses and their credibility.
[24]
Mr Zikmann repeatedly said during the trial that RDM wanted a
statement of the appellant’s ‘real expenses’.
When
questioned whether the close corporation would be entitled to ‘fees’
in respect of work that had already been
done, he replied that: ‘I
think that is a general feeling is just that we were looking for the
expenses, the statement of
account’. That the close corporation
was expected by RDM to walk away empty handed points to the
improbability that Mr Bowles
would have agreed thereto. It also
belies the notion that the ‘debate’ of the account would
permit a discussion of
the reasonableness of a fee or payment to the
appellant for work done. Later, Mr Zikmann changes his evidence to :
‘
It was
proposed by RDM management that we get a statement of account, to see
what is the real expenses and then we decide how we
are going to deal
with that.
Question (by
counsel): So you wanted to get the real expenses and then you would
decide how you would deal with that?
Answer (by Mr
Zikmann): Yes, in conjunction with Mr Bowles.’
Mr
Zikmann’s second answer closely echoes that of Mr Bowles
himself.
[25]
When Mr Bowles sent an email to Mr Marcel Mbuyu, the chief operating
officer of RDM, on 5 May 2010 which was clearly at variance
with any
notion of a firm agreement having been concluded between the parties,
Mr Mbuyu did not protest that Mr Bowles had either
misunderstood or
misrepresented the situation.
[26]
As late as 21 July 2010, Mr Zikmann addressed an email to Mr Bowles
in which he says:
‘
I am
confident that you and Norbert (i e Norbert Schulze, RDM’s
chief executive officer) can work through or past the obstacles
in
the way so that we can restart and focus on next year’s event’.
This
is entirely consistent with Mr Bowles’ version of the
exploratory nature of the undertakings given on 7 April 2010.
[27]
It is true that the Mr Bowles’ version as to what he had
undertaken to do at the meeting of 7 April 2010 was not always
exactly the same but this is consistent with the vague, indeterminate
and provisional nature of what appears to have been agreed
at that
meeting. It is also consistent with the version conveyed by the
letter from the attorneys acting for the close corporation
dated 31
August 2010, in response to the letter of demand from RDM’s
attorneys, dated 25 August 2010:
‘
We
deny that the Agreement was varied as alleged or at all. We are
instructed that our client, on a completely without prejudice
basis,
and as a gesture of good faith in order to maintain its business
relationship with your client, undertook to negotiate terms
with its
suppliers and/or subcontractors in order to reduce the cancellation
fee. Our client further undertook to attend to a reconciliation
in
this regard, and provide your client with the details of a refund, if
any. Our client attended to the aforegoing and informed
your client
that it was prepared to refund the sum of R491 886.00 to your client
on a without prejudice basis. It subsequently
transpired however that
your client was dissatisfied with the aforegoing refund and demanded
a repayment of a larger portion of
the said deposit’.
[28]
The undertaking referred to therein given was not to agree to a
statement and debatement of account. The word ‘debate’
nowhere features in this letter. A ‘statement and debatement of
account’ is a specific remedy that one would expect
would have
been set out in terms. In the absence of a fiduciary relationship
between parties, I find it very much more difficult
to be persuaded
that persons agreed to something that is, as a statement and
debatement of account undoubtedly is, onerous and
intrusive of the
commercial privacy and confidentiality not only for the party
required to do so but also its own customers and
suppliers. Moreover,
the undertaking in this instance was given on a ‘without
prejudice basis’.
[29]
There is a string of authority in this court that the mere fact that
an undertaking has been given or even an agreement reached
between
parties is not necessarily enforceable: the agreement may be merely
provisional and subject to further developments before
a binding
agreement is reached. See, for example,
Lambons
(Edms) Beperk v BMW (Suid-Afrika) (Edms) Beperk
;
[9]
CGEE
Alsthom
Equipments et Enterprises Electriques, South African Division v GKM
Sankey (Pty) Limited
;
[10]
Pitout
v North Cape Livestock Co-operative Limited
.
[11]
This is often known as an ‘in principle’ agreement. See,
for example,
Titaco
Projects (Pty) Limited v AA Alloy Foundry (Pty) Limited
,
[12]
which judgment was confirmed on appeal.
[13]
The undertakings which were given by Mr Bowles were clearly given in
the course of negotiations which had, as their aim, the overall
settlement of the issue. It is clear, on the probabilities, that the
parties had intended on 7 April 2010 that there would be further
negotiations between them before a bargain was struck.
[30]
In
Doyle
v Fleet Motors PE (Pty) Limited
[14]
it was set out that a party seeking the rendering of an account and
debate thereof should aver ‘any contractual terms and
circumstances having a bearing on the account sought’.
[15]
There was no averment as to how the account may reckon with any
payments due to the appellant. RDM was silent throughout as to
whether it accepted that payment may be due to the appellant. In the
circumstances, this is a serious deficiency. There was no
agreement
as to the fees to be paid to the appellant or what possible
compensation there would be for the appellant as a result
of the
variation. RDM has been coy about this throughout. Besides, there is
no objective yardstick by which the ‘reasonableness’
of
Mr Bowles’ fees could have been measured.
[31]
The finding that that the parties concluded a final and legally
binding agreement on 7 April is one which I cannot support:
such
agreement as may have been reached between the parties was tentative,
exploratory and provisional at best for RDM.
[32]
As RDM rejected the appellant’s offer to settle, the close
corporation counterclaim of R420 000- for the payment of outstanding
VAT (Value Added Tax) must succeed.
[33]
The court below should have dismissed the RDM’s action and
upheld the close corporation’s counterclaim with costs.
The
appeal should have been upheld with costs.
NP WILLIS
JUDGE OF APPEAL
APPEARANCES
For
Appellant: J F Roos SC
Instructed by:
Robyn Edmunds
Attorneys, Johannesburg
E
G Cooper Majiedt Inc, Bloemfontein
For
Respondent: S P Rosenberg SC
Instructed
by:
Webber Wentzel, Cape
Town
Lovius
Block, Bloemfontein
[1]
Doyle
& another v Fleet Motors PE (Pty) Ltd
1971 (3) SA 760 (A).
[2]
At
762F-H.
[3]
Pitout
v North Cape Livestock Co-operative Ltd
1977 (4) SA 842
at 851.
[4]
Afrimeric
Distributors (Pty) Ltd v E I Rogoff (Pty) Ltd
1948 (1) SA 569
(W) at 576.
[5]
See
Pillay
v Krishna and Another
1946 AD 946
at 951.
[6]
See
Stellenbosch
Farmers’ Winery Group Limited and another v Martel et Cie and
others
2003 (1) SA 11
(SCA) para 5.
[7]
It
is not clear to me what this is supposed to mean.
[8]
See,
Doyle
and Another v Fleet Motors PE (Pty) Ltd
1971 (3) SA 760
(A) at 762E-763D.
[9]
Lambons
(Edms) Beperk v BMW (Suid-Afrika) (Edms) Beperk
[1997] ZASCA 51
;
1997
(4) SA 141
(SCA) at 153.
[10]
CGEE
Alsthom
Equipments et Enterprises Electriques, South African Division v GKM
Sankey (Pty) Limited
1987(1) SA 81 (A) at 92A-F
[11]
Pitout
v North Cape Livestock Co-operative Limited
1977 (4) SA 842
(A) at 850D-G.
[12]
Titaco
Projects (Pty) Limited v AA Alloy Foundry (Pty) Limited
1996
(3) SA 320
(W) at 334D-G.
[13]
AA
Alloy Foundry (Pty) Limited v Titaco Projects (Pty) Limited
2000
(1) SA 639
(SCA) at 649A.
[14]
Doyle
v Fleet Motors PE (Pty) Limited
1971 (3) SA 760 (A).
[15]
At
762G.