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[2021] ZAGPJHC 59
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BMK Kitchenbrand (Pty) Limited, trading as: Universal Office Automotive and Another v Kitchenbrand (A5014/2019) [2021] ZAGPJHC 59 (28 May 2021)
THE REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
(1)
REPORTABLE:
NO
(2)
OF INTEREST TO OTHER
JUDGES:
NO
(3)
REVISED:
Date:
28
th
May 2021
CASE
NO
:
A5014/2019
In
the matter between:
BMK
KITCHENBRAND (PTY) LIMITED, trading as:
UNIVERSAL OFFICE
AUTOMOTIVE
First Appellant
KITCHENBRAND
,
KEVIN
Second Appellant
and
SAPOR RENTALS
(PTY) LIMITED
Respondent
Coram:
Kathree-Setiloane, Twala
et
Adams JJ
Heard
:
22 February 2021 – The ‘virtual hearing’ of
the
Full Court Appeal was conducted as a videoconference on the
Microsoft
Teams
digital platform.
Delivered:
28 May 2021 – This
judgment was handed down electronically by circulation to the
parties' representatives
via
email, by being uploaded to the
CaseLines
system of the GLD and by release to SAFLII. The date
and time for hand-down is deemed to be 11H00 on 28 May 2021.
Summary:
Contract – breach of warranties –
contractual damages arising from such breach of contract –
factual finding by
court
a quo
that first appellant in fact breached the agreement – mutually
destructive versions
–
trial
court required to select a conclusion which seems to be the more
natural or plausible one
–
Appeal –
against factual findings of court
a quo
– if no
misdirection on fact by the trial Judge, the presumption is that his
or her conclusion is correct – the appellate
court will only
reverse it where it is convinced that it is wrong –
Court orders – a court is obliged to adjudicate upon all issues
raised in a case before it – it must do so by rendering
a
judgment and issuing an order dealing with all the issues – if
not, appeal court should supplement order of court
a quo
.
ORDER
On appeal from:
The
Gauteng Local Division of the High Court, Johannesburg (Mokose AJ
sitting as Court of first instance):
(1)
Save to the extent set out in paragraph 2
below, the appeal is dismissed.
(2)
The order of the trial court is substituted
by the following order:
‘
[37]
Judgment is granted in favour of the plaintiff against the first and
second defendants jointly and
severally, the one paying the other to
be absolved, for: -
(a)
Payment
of the sum of R335 932.94;
(b)
Payment
of interest on R335 932.94 at the rate of 12% per annum from
date of service of the summons to date of final payment;
and
(c)
Costs
of suit.’
(3)
The first and second appellants, jointly
and severally, the one paying the other to be absolved, shall pay the
respondent’s
costs of the appeal, including the costs of the
applications for leave to appeal to the trial court and the Supreme
Court of Appeal.
JUDGMENT
Adams J
(Kathree-Setiloane
et
Twala JJ concurring):
[1]
The first
appellant
[1]
,
BMK Kitchenbrand (Pty) Ltd (‘Kitchenbrand’), is a
provider of office automation solutions and a supplier of hardware
and software technology
inter
alia
in
the form of printers, scanners and copiers. The respondent
[2]
,
Sapor Rentals (Pty) Ltd (‘Sapor’), is in the business of
financing the acquisition of office automation equipment.
Sapor, not
unlike a commercial bank in a credit agreement, finances the purchase
or rental of office equipment. The second appellant
[3]
,
Mr Kevin Kitchenbrand (‘Mr Kitchenbrand’), is a
shareholder in, and a director of Kitchenbrand. He was cited in the
action on the basis of a performance guarantee he signed in favour of
Sapor.
[2]
On
29 February 2012, Kitchenbrand, in terms of a written ‘Master
Rental Agreement’ (‘MRA’) between it and
a firm of
attorneys, Trollip, Cowling & Janeke (‘TCJ’), agreed
to supply to TCJ, and to install at their offices,
thirteen specified
pieces of office equipment, including a
Kyocera
FS-1135
multifunction
printer and a
Kyocera
FS-C5150DN
network colour laser printer. The MRA was for a period of
sixty
months, with a monthly rental of R7000 per month (excluding value
added tax). In the MRA provision was also made for an annual
escalation of the monthly rental of 10% per annum. The total value of
the rental agreement, excluding the annual escalation, was
therefore
approximately R420 000.
[3]
The MRA between
Kitchenbrand and TCJ was financed by Sapor, who ‘purchased’
from Kitchenbrand the rental agreement in
terms of a written cession
incorporated into a ‘Supply Agreement’ concluded between
Sapor and Kitchenbrand on 6 March
2012. The purchase price paid by
Sapor as consideration for the acquisition by it of all rights, title
and interest in and to the
MRA was the sum of R389 458.27. This
Supply Agreement, so Sapor alleged in its declaration in the trial
court, was breached
by Kitchenbrand in that it had failed to install,
as it warranted that it had done or would do, at the offices of TCJ,
two of the
machines of the thirteen, namely the
Kyocera
FS-1135
multifunction
printer and the
Kyocera
FS-C5150DN
network colour laser printer. Sapor alleged that as a result of this
breach it suffered contractual damages amounting in total
to
R335 932.94.
[4]
During April 2014, Sapor instituted action
in the High Court against Kitchenbrand and Mr Kitchenbrand
(‘appellants’)
for damages for breach of contract. As
already indicated, Sapor sued Mr Kitchenbrand on the basis of a
performance guarantee issued
by him in favour of Sapor, in terms of
which Mr Kitchenbrand guaranteed compliance by Kitchenbrand of its
obligations in terms
of the Supply Agreement. There is no dispute
relating to Mr Kitchenbrand’s liability to Sapor in the event
that Kitchenbrand
is found to be liable to Sapor for damages. Mr
Kitchenbrand’s liability is secondary in nature.
[5]
Kitchenbrand disputed liability to Sapor
and defended the action on the basis that it did not breach the
Supply Agreement. There
is no dispute between the parties that in
terms of the Supply Agreement, Kitchenbrand undertook and gave an
express warranty that
it would supply to TCJ the machines and install
same at their offices. It is also common cause between the parties
that a failure
by Kitchenbrand to have installed the printers, at the
offices of TCJ, amounted to breach of contract and that Sapor, in the
event
of such breach being proven, would be entitled to contractual
damages arising from the breach. Kitchenbrand’s case was simply
that it had complied with all of its obligations in terms of the MRA
with TCJ. In particular, it alleged in its plea that it did
in fact
install the two printers at the offices of TCJ.
[6]
The trial court (Mokose AJ), after
considering the evidence found that the version of Sapor was to be
preferred to that of the appellants.
She accordingly made the
following order:
‘
(i)
The first and second [appellants] are 100% liable for the damages
occasioned by [Sapor], the one
paying and the other being absolved.
(ii)
Costs of suit.’
[7]
The appeal lies against the order with
leave of the Supreme Court of Appeal. The question for determination
on appeal is whether
the trial court’s factual finding was
correct.
[8]
I interpose here to deal briefly with two
special pleas raised by the appellants, which were dismissed by the
trial court.
[9]
The special pleas relate to and are based
on clause 7.2 of the MRA, which provides as follows under the heading
‘Indemnities
by the Supplier [Kitchenbrand]’:
‘
7.2
As an alternative, at Sapor’s election and in the event of any
breach by the Supplier [Kitchenbrand]
of any of the provisions of
this agreement or any cession, Sapor shall be entitled to require the
Supplier to repurchase all or
any contracts and/or Sapor Rental
Agreement, subject to 8.10 below, upon the following terms and
conditions:
7.2.1 the
consideration payable by the Supplier to Sapor on any such repurchase
shall be the value of the collectibles
still outstanding under the
Contracts and/or Sapor Rental Agreement repurchased as at the date of
receipt of that consideration
by Sapor and all costs and expenses
which Sapor may have incurred including (but not limited to) costs of
storage, repairs, repossessions,
refurbishing, sale and legal costs
on the scale as between an attorney and his own client;
7.2.2 the
consideration referred to in 7.2.1 above shall be payable against
delivery of the Contracts and/or Sapor
Rental Agreement in question
by Sapor to the Supplier and, upon receipt by Sapor of such
consideration, all the rights, title and
interest in and to the
Contracts and/or Sapor Rental Agreement shall be deemed to have been
ceded to or back to the Supplier.’
[10]
Clause 8.10 reads as
follows:
‘
8.10
All Contracts and/or Equipment and/or Goods and/or Sapor Rental
Agreement sold and/or ceded by Sapor to the Supplier,
whether in
terms of 6 or 7 or for any other reason whatsoever, and are sold and
ceded in the condition that it is found and Sapor
shall not be bound
by any common law warranties, representations, undertakings or the
like, express or implied with regard thereto.
The cession of the
rights and transfer of ownership will be effected by Sapor by
delivering the relevant Sapor Rental Agreement
and/or Contract and
supporting documents to the Supplier, which delivery will constitute
the said cession and transfer. The Supplier
will have no claim of
whatsoever nature against Sapor. Sapor will not be liable to effect
delivery of the Equipment and/or Goods
to the Supplier and the
Supplier will be liable to pay all costs relating to such cession and
transfer of ownership. The Supplier
will have no defence and/or claim
against Sapor if the goods are defective, broken beyond repair, do
not exist or cannot be found.’
[11]
The first special
plea raised by the appellants was to the effect that Sapor had failed
to prove, as it was required to do in terms
of clause 7.2. after
making the election as per the said clause, that: (1) it (Sapor) had
required of Kitchenbrand to repurchase
the Master Rental Agreement,
and (2) it (Sapor) had simultaneously tendered return of ownership to
Kitchenbrand of the equipment
leased in terms of the MRA.
[12]
As correctly found by
the trial court, the uncontested and unchallenged evidence on this
aspect was presented by Sapor’s witness,
Mr Corey Badenhorst
(‘Mr Badenhorst’). He testified that at a meeting, during
December 2012, between him and a representative
of Kitchenbrand, a Mr
Lourens Groenewald (‘Mr Groenewald’), he requested
Kitchenbrand to buy back the MRA. The offer
was, however, refused.
The same request was made to Mr Kevin Kitchenbrand, at a subsequent
meeting during February 2014. He also
rejected Sapor’s offer.
Instead, Mr Kitchenbrand offered only to buy back the printers for
R65 000.
[13]
Mr Groenewald did not
testify on behalf of the appellants. The testimony of Mr Badenhorst
relating to their meeting, therefore,
stands uncontested. The
appellants contend that Mr Badenhorst’s testimony is undermined
by a subsequent letter of demand
from Sapor’s attorneys, in
which demand is made for relief in terms of clause 7.2.2. They
contend that nowhere in this letter
of demand did Sapor tender
ownership of the equipment to Kitchenbrand, hence Sapor’s
election failed to comply with the terms
of the agreement. There is
no merit in this contention as it flies in the face of the
uncontested evidence of Mr Badenhorst, which,
if it was seriously
challenged by the appellants, could easily have been gainsaid by Mr
Groenewald if he had been called as a witness.
[14]
The second special
plea is to the effect that Sapor had failed to allege and prove, as
it was required to do in terms of clause
7.2, that it had given
notice to Kitchenbrand requiring it to repurchase the MRA, and to
simultaneously give notice of tender to
return ownership of the
equipment. Put differently, the appellants’ case is that Sapor
was required to give notice to Kitchenbrand
that it should repurchase
the MRA. Since Sapor failed to allege and prove such notice, its
claim was bad in law.
[15]
For the same reasons
given in relation to the first special plea, the second special plea
was, in my view, correctly dismissed by
the trial court. The point is
that during the meetings between Sapor and Kitchenbrand during
December 2013 and February 2014, the
parties engaged with one another
on the issue of repurchase, and even went as far as making and
receiving offers. It cannot therefore
be argued by the appellants
that ownership of the equipment or the MRA for that matter, was not
tendered. If the offer was made
and accepted, payment would have been
made against delivery of the MRA.
[16]
The fact that these
discussions took place, must mean, by implication, that notice had
been given by Sapor as required by the particular
clause.
[17]
Returning to the main
issue in this appeal, which is whether the factual finding of the
trial court was correct. As already alluded
to, the factual question
for determination is whether Kitchenbrand breached the terms of the
Supply Agreement by failing to install
the two printers, as it was
required to do.
[18]
When a court is
confronted with two mutually destructive versions, logic dictates
that both cannot be true. If the evidence presented
on behalf of
Sapor, that the printers were not installed, is accepted, it follows
as a matter of logic that the evidence led on
behalf of the
appellants, that the printers were in fact installed, must be
rejected as false. The onus was on Sapor in the trial
court, to prove
on a balance of probabilities that its version is the correct one.
This requires the court, upon a conspectus of
the evidence as a whole
and by balancing probabilities, to select a conclusion which seems to
be the more natural or plausible
(in the sense of acceptable,
credible or suitable) conclusion, though that conclusion may not be
the only reasonable one. If, however,
the probabilities are evenly
balanced, Sapor could only succeed if the court nevertheless believed
it, and was satisfied that their
evidence is true and that the
version of the appellants is false. See
Govan
v Skidmore
[4]
;
Ocean
Accident and Guarantee Corporation Ltd v Koch
[5]
;
and
National
Employers' General Insurance Co Ltd v Jagers
[6]
.
[19]
In analysing and
weighing the evidence tendered by the parties, it appears that the
facts set out in the paragraphs which follow
are either common cause
or at least not seriously disputed.
[20]
Sapor called two
witnesses, the first being Mr Badenhorst, its sales director and
shareholder, and the second being an expert, a
Mr Kim Swift (‘Mr
Swift’), whose evidence related only to the quantum of the
claim. Mr Swift gave evidence relating
to the fair market value of
the equipment which formed the subject of the Supply Agreement. For
purposes of this appeal, the evidence
of Mr Swift has little
relevance.
[21]
Two witnesses gave
evidence on behalf of the appellants, namely Mr Botha (‘Mr
Botha’) who, at the relevant time,
was a senior technician
employed by Kitchenbrand, and Mr Kitchenbrand himself, the managing
director of Kitchenbrand.
[22]
It is common cause
that pursuant to the MRA, TCJ, in a separate delivery note, had
confirmed the delivery in writing of all the
printing machines. It is
furthermore common cause that Kitchenbrand presented its tax invoice
to Sapor, and therefore, if regard
is had to a deeming provision in
the Supply Agreement, the printers are deemed to have been delivered
to and installed at the offices
of TCJ. In that regard, clause 2 of
the Supply Agreement reads as follows:
‘
2
Offer of Sale of Equipment;
2.1
All purchases of Equipment by Sapor from the supplier [Kitchenbrand]
shall only be binding on Sapor
on receipt by Sapor of a Sapor Rental
Agreement, duly completed by the customer’s authorised
representative, and will be
subject to the condition precedent that
the Supplier deliver and install the equipment to the Customer for
and on behalf of Sapor
at the supplier’s risk and the Customer
having confirmed such delivery in a separate delivery note; and
2.2
The conditions precedent, contained in 2.1, will have been deemed to
be fulfilled on presentation by
the supplier of its tax Invoice.’
[23]
The MRA also
contained a signed declaration by TCJ, in the form of a signed
acceptance certificate, that all of the printers listed
in the said
agreement had been delivered and installed in accordance with the
conditions of the agreement. Additionally, and as
per the evidence of
Mr Badenhorst, before the Supply Agreement was finally implemented, a
final call would have been made to TCJ
to confirm and ensure that the
goods had indeed been installed and that TCJ was satisfied with the
service rendered by Kitchenbrand.
[24]
As already indicated,
shortly after the conclusion and signing of the Supply Agreement,
Kitchenbrand rendered to Sapor a tax invoice,
which was duly paid by
them. Thereafter, the cession of the MRA to Sapor kicked in and TCJ
was required to effect payment of the
amount of monthly rental to
Sapor, which it duly did for the period from February 2012 to
September 2013 (approximately nineteen
months). Payment of the
monthly rental was paid for this period by TCJ without demur until
September 2013. Importantly, during
this nineteen-month period, TCJ
did not once complain or raise any concern with Sapor that the
equipment had not been installed
at their premises. However, the
October 2013 payment was not forthcoming from TCJ, which was
obviously of concern to Sapor, who
immediately started investigating
the reason for the default of payment by TCJ.
[25]
During their
investigation and with a view to establishing the reason for TCJ
defaulting on its payments in terms of the MRA, Sapor
convened a
meeting with Kitchenbrand on 26 November 2013 at the offices of TCJ
in Brakpan. The meeting was attended on behalf of
Sapor by Mr
Badenhorst and his attorney at the time, (Mr Neil McKinnon (‘Mr
McKinnon’)). Mr Groenewald attended on
behalf of Kitchenbrand.
Photographs taken by Mr McKinnon, on the day, depicted the two
printing machines still in boxes and not
yet installed some nineteen
months after they were supposed to have been installed. These
uninstalled machines, according to the
evidence of Mr Badenhorst, had
been pointed out to them by Mr Groenewald, who himself was visibly
surprised that the equipment,
bizarrely, had not been installed. The
owners of TCJ were not at the office on the day of the meeting and
obviously did not attend.
Between Mr Badenhorst and Mr McKinnon, it
was then resolved that they would discuss this issue with
Kitchenbrand and, more particularly,
Mr Kitchenbrand.
[26]
It bears emphasising
that the unequivocal evidence of Mr Badenhorst was that, when they
visited the offices of TCJ on 26 November
2013, they found the two
printers which are mentioned in the respondent’s declaration,
namely the
Kyocera
FS 1135MFP and the
Kyocera
FS-CS5150DN, still in boxes. This evidence was corroborated by the
objective evidence of the photographs taken on the same day
by Mr
McKinnon in the presence of Mr Badenhorst. These photographs depicted
the two printers still in their original boxes and
they had clearly
not been installed. This, as indicated earlier, came as a complete
surprise to the Kitchenbrand’s representative
at the meeting,
Mr Groenewald.
[27]
A short follow-up
meeting was held on 3 December 2013 between Mr Badenhorst, his
attorney (Mr McKinnon) and Mr Groenewald. Mr Kitchenbrand
did not
attend this meeting. During this meeting possible solutions to the
problem were proposed. Mr Badenhorst testified that
the suggestion,
at the meeting, was that Kitchenbrand should buy back its equipment
in light of its breach of the Supply Agreement
or place the machines
at another customer. Mr Groenewald, who seemingly did not have the
authority to make these type of decisions
on behalf of Kitchenbrand,
undertook to discuss the proposals with Mr Kitchenbrand, and revert
to Mr Badenhorst.
[28]
On 5 February 2014
the parties attended a further meeting at which Mr Kitchenbrand was
present. Again, possible solutions to resolve
the issues between
Sapor and Kitchenbrand were discussed. In particular, it was proposed
that Kitchenbrand buy back the MRA and
the equipment. Mr
Kitchenbrand was, however, only prepared to offer R65 000 to buy
back the equipment. This offer was
accordingly rejected by Sapor.
[29]
Mr Botha testified on
behalf of the appellants. His evidence was that he was employed as a
senior technician by Kitchenbrand during
2012. He was responsible for
the installation, repair, servicing and maintenance of equipment. He
further testified that he delivered
and installed the relevant
equipment, as stated in the delivery note, at the offices of the TCJ.
[30]
Mr Kitchenbrand
testified that he had been doing business with TCJ since 1999. With
reference to clause 7 of the Supply Agreement,
he claimed that he
never received notice from Sapor requiring him to buy back the MRA.
Nor did Sapor tender return of ownership
of the goods to
Kitchenbrand.
[31]
The question is which
one of these two versions is the correct one. The appellants contend
that the trial court should have accepted
Mr Botha’s evidence
that the machines had been installed by Kitchenbrand, as such
evidence remained uncontested. Furthermore,
they contend that this
version is supported by documentary evidence, notably a written
declaration and certification by CTJ, in
the form of a document
titled ‘Contract and Installation Confirmation’, which
was duly signed, on behalf of TCJ, on
6 March 2012. This is the date
on which the printers were ostensibly supplied to TCJ and installed
at their offices. Additionally,
the said firm, as part of the MRA,
signed a certificate on 29 February 2012, in terms of which it
irrevocably declared that:
‘
(a)
The goods described in the schedule ("the goods") have been
delivered and installed
in accordance with all the conditions of the
agreement.’
[32]
The appellants
contended that the same can be said of a document styled ‘Equipment
Schedule and Certificate of Acceptance’,
in which TCJ also
expressly confirmed that all of the equipment listed in the MRA had
in fact been installed. Furthermore, before
the supply agreement was
implemented, Sapor telephonically confirmed with TCJ that the
installation of the equipment had in fact
been done.
[33]
The appellants
contend that the cumulative effect of the documentary evidence,
presented by Sapor no less, coupled with the direct
evidence of Mr
Botha, should have led the trial court to the conclusion that the
machines had been installed by the time the Supply
Agreement came
into effect. Moreover, they submit that it is inherently improbable
that TCJ would have paid the monthly instalments
for a period in
excess of eighteen months when the machines had not been installed.
The flipside of the coin, so they argued, is
that the version of the
Sapor is supported only by the photographic evidence of the boxes
ostensibly containing the machines which
were not installed. They
contend that this evidence is, in any event, subject to doubt, as
there was no evidence presented which
confirmed that the machines,
depicted in the photographs, were the ones identified (with the
serial numbers) and listed in the
MRA.
[34]
Moreover, it was
submitted on behalf of the appellants, that the trial court should
have accepted that, on the probabilities, the
reason why TCJ stopped
paying their monthly rental had nothing to do with the fact that the
two printers had not been installed
by Kitchenbrand, but rather that
the firm was experiencing financial difficulties. This is pure
supposition as is evident from
the testimony of Mr Badenhorst. He
could not even confirm that TCJ was sequestrated, despite suggestions
that they were. Accordingly,
no reliance can be placed on this aspect
of Mr Badenhorst’s testimony.
[35]
There is no clarity
on the evidence why, if the machines had not been installed during
February / March 2012, TCJ nevertheless declared
in a number of
documents, and on other occasions, that the equipment had been
installed? Moreover, why did they pay, for a period
in excess of
eighteen months, monthly rentals and not complain once to Sapor that
the equipment had not been installed?
[36]
The point is that on
the uncontradicted evidence of Mr Badenhorst, the printers were not
installed. He saw this on his visit to
TCJ’s office on 26
November 2013, as did Mr Groenewald, the representative of
Kitchenbrand. Furthermore, at no stage during
subsequent meetings
between Mr Badenhorst and the Mr Kitchenbrand, did he dispute
that the machines had not been installed.
In fact, during February
2014, Mr Kitchenbrand offered to buy back some of the equipment
albeit for R65 000 only, but not
the MRA. This begs the
question: Why did Mr Kitchenbrand offer to buy back the machines if
Kitchenbrand had complied with all of
its obligations in terms of the
Supply Agreement?
[37]
As rightly found by
the trial court, the person who, from the appellants’ side, was
in a position to put paid to the veracity
of Sapor’s version,
if indeed it was untrue, would have been Mr Groenewald. The
appellants, however, elected not to call
Mr Groenewald to testify.
That, in my view, was the end of the appellants’ case. In the
absence of an explanation for why
the appellants omitted to call Mr
Groenewald to testify, I am compelled to infer that Mr Groenewald’s
evidence would have
damaged their case.
[38]
This is a primary aspect which, in my view,
tilts the scales in favour of Sapor.
[39]
In assessing the evidence before it, the
trial court in its judgment must account for all of the evidence. In
S v Hadebe and Others
1998 (1) SACR 422
(SCA) at 426E – H, citing with approval from
Moshephi and Others v R
(1980 –
1984) LAC 57
at 59F – H, Marais JA stated:
'The
breaking down of a body of evidence into its component parts is
obviously a useful aid to a proper understanding and evaluation
of
it. But, in doing so, one must guard against a tendency to focus too
intently upon the separate and individual part of what
is, after all,
a mosaic of proof. Doubts about one aspect of the evidence led in a
trial may arise when that aspect is viewed in
isolation. Those doubts
may be set at rest when it is evaluated again together with all the
other available evidence. That is not
to say that a broad and
indulgent approach is appropriate when evaluating evidence. Far from
it. There is no substitute for a detailed
and critical examination of
each and every component in a body of evidence. But, once that has
been done, it is necessary to step
back a pace and consider the
mosaic as a whole. If that is not done, one may fail to see the wood
for the trees.'
[40]
This was the approach adopted by the trial
court. Having considered the evidence as a whole, the version of
Sapor, notwithstanding
doubts about certain aspects of its evidence,
had to prevail. I agree with the trial court that, upon a conspectus
of the evidence
as a whole and by balancing the probabilities, the
conclusion to be reached is that the version of Sapor is the more
natural or
plausible (in the sense of acceptable, credible or
suitable) conclusion as compared to the version of the appellants.
[41]
This is aptly illustrated by the
unchallenged evidence-in-chief of Mr Badenhorst which I quote below:
‘
Ms
Bezuidenhout:
And
where was the meeting held? --- At the end user’s offices in
Brakpan.
Right and who all attended? ---
It was Louwrence and myself and Neil McKinnon.
Who is Neil McKinnon? --- Neil
McKinnon is someone from the attorneys’ firm that represents us
– one of the attorney
firms we used at the time.
And on arrival at the premises
what did you find in relation to the equipment? --- Well, on arrival
we met in reception. Then we
were taken through to show us where or
show me and Neil where the equipment was installed and the
TaskAlfa
3500 was in one office still being used. Then they took us through to
some other room which looked like they converted it into
a store room
and there was the
TaskAlfa
181 copier standing there,
unplugged. And then there were two copiers still in their boxes and,
I think it was a copier and a printer,
laser printer that were still
in their boxes … [intervenes]
And ... --- And were not
installed, ja.
Can you describe to the court in
what state the boxes were? --- The one had not even been opened and
the tape that goes across the
top had not even been opened. The other
one had been opened partially but you know you could clearly see that
the equipment had
not been installed. They had never been used.
And this was observed by who?
--- Louwrence and Neil McKinnon, Lourens Groenewald and Neil
McKinnon.
And yourself? --- And myself.
Was
there a reaction to what you have found from these parties who were
present with you? --- Well, I think Louwrence looked a little
surprised that the equipment had not been installed. Neil too, you
know, because, and myself you know we know that that should
have
never happened. The equipment should be installed in a ...
[intervenes] … …’
[42]
Having regard to this unchallenged evidence
presented on behalf of Sapor, the trial court was correct in its
finding that Kitchenbrand
breached the Supply Agreement by failing to
install the printers at the offices of TCJ.
[43]
Even if we have doubts about the
correctness of the factual findings by Mokose AJ, the appeal should
still fail on the basis of
the principles enunciated in
R
v Dhlumayo & Another,
1948 (2) SA
677
(A), in which Davis AJA at pg 706 stated:
'[8].
Where there has been no misdirection on fact by the trial Judge, the
presumption is that his
conclusion is correct; the appellate court
will only reverse it where it is convinced that it is wrong.
[9].
In such a case, if the appellate court is merely left in doubt as to
the correctness of
the conclusion, then it will uphold it.
[10].
There may be a misdirection on fact by the trial Judge where the
reasons are either on their face
unsatisfactory or where the record
shows them to be such; there may be such a misdirection also where,
though the reasons as far
as they go are satisfactory, he is shown to
have overlooked other facts or probabilities.
[11].
The appellate court is then at large to disregard his findings on
fact, even though based on credibility,
in whole or in part according
to the nature of the misdirection and the circumstances of the
particular case, and so come to its
own conclusion on the matter.
[12].
An appellate court should not seek anxiously to discover reasons
adverse to the conclusions of the
trial Judge. No judgment can ever
be perfect and all – embracing, and it does not necessarily
follow that, because something
has not been mentioned, therefore it
has not been considered.' (My emphasis).
[44]
In
S v
Francis
,
1991 (1) SACR 198
(A) at 204C
– E, Smalberger JA reiterated the position set out in
Dhlumayo
,
stating that in the 'absence of any misdirection the trial Court's
conclusion', including in that case its acceptance of the evidence
of
an accomplice, 'is presumed to be correct'. In order to succeed in an
appeal against factual findings, an appellant must convince
an appeal
court 'on adequate grounds that the trial court was wrong' when it
accepted the evidence in issue: and 'a reasonable
doubt will not
suffice to justify interference with its findings'.
[45]
I am not convinced that the trial court’s
factual finding was wrong. There is accordingly no basis for this
Court to interfere
with the finding of the trial court on appeal.
[46]
For all of these reasons the appeal must
fail.
[47]
There is, however, one last aspect which
requires my attention. This relates to the manner in which the court
a quo
formulated its order. In the trial court, Sapor proved the quantum of
its contractual damages which arose as a result of the breach
of
contract by Kitchenbrand. Sapor’s damages amounted in total to
R335 932.94. It was therefore entitled to judgment
against the
appellants for payment of that sum.
[48]
Instead of the trial court making an order
in those terms, it made an order that ‘the first and second
defendants are 100%
liable for the damages occasioned by the
plaintiff, the one paying and the other to be absolved’. This
order is not a model
of clarity by any measure and raises more
questions than answers, most notably the following: (1) What is the
amount of the appellants’
liability to Sapor? (2) Is this a
final judgment? and (3) Is Sapor required to return to court if it
needs a judgment sounding
in money and on the basis of which a
warrant of execution could be issued? Matters are further complicated
by the fact that the
trial court did not at any stage order a
separation of the issues in terms of Uniform Rule of Court 33(4),
which means that the
order of the trial court ought to have dealt
with all of the issues and the disputes between the parties.
[49]
As was stated by the SCA (per Ponnan JA) in
Minister of Water and Environmental
Affairs v Kloof Conservancy
[7]
,
an order or decision of a court binds all those to whom it applies.
All laws must be written in a clear and accessible manner.
Impermissibly vague provisions violate the rule of law, which is a
founding principle of our Constitution. Orders of court must
comply
with this standard.
[50]
Also, as was said by Weiner AJA in
P
M obo T M v Road Accident Fund
[8]
,
at para 14:
‘
[14]
Litigants seeking relief invoke the jurisdiction of a court, usually
by way of an action or an application.
The issues in any particular
litigation will be determined by the pleadings or affidavits and may
be expanded by the parties in
the course of the proceedings. It is
not for the court to vary the issues so defined. But, once the case
has been placed before
the court for adjudication, it is obliged to
adjudicate upon the issues it raises by rendering a judgment, unless
the parties specifically
withdraw all or some of the issues from
judicial consideration. This can be done by abandoning a claim or
defence, or by withdrawing
the action or application in its entirety,
subject to certain limitations.’
[51]
For the reasons already indicated, I am of
the view that the trial court in its judgment and order, failed to
make an order, as
it was obliged to, in respect of the quantum of
damages which was squarely an issue before it. Moreover, the order
which the trial
court made is impermissibly vague. It, therefore,
falls upon this Court to
mero motu
rectify the position, adjudicate the quantum of Sapor’s claim,
which the trial court was obliged to do, and to correct the
order.
[52]
A further justification for interfering
with the order is that the order, as formulated by the trial court,
cannot be enforced.
In that regard, the Constitutional Court in
Eke
v Parsons
[9]
referred with approval to
Mansell
v Manse
ll
[10]
,
in which it was held that:
‘
It
is surely an elementary principle that every Court should refrain
from making orders which cannot be enforced. If the plaintiff
asks the Court for an order which cannot be enforced, that is a very
good reason for refusing to grant his prayer. This principle
appears
… to be so obvious that it is unnecessary to cite authority
for it or to give examples of its operation.’
[47]
On the basis of the principles enunciated
in these authorities, I reiterate that the trial court was obliged to
adjudicate the issue
of the quantum of Sapor’s claim. It failed
to do so. This Court is therefore obliged to correct the situation by
substituting
the order of the trial court.
Costs of Appeal
[53]
The general rule in matters of costs is
that the successful party should be given his costs, and this rule
should not be departed
from except where there are good grounds for
doing so. See:
Myers v Abramson
[11]
.
[54]
I can think of no reason to deviate from
the general rule. The appellants should therefore pay Sapor’s
costs of the appeal.
Order
[55]
In the result, the following order is made:
-
(1)
Save to the extent set out in paragraph 2
below, the appeal is dismissed.
(2)
The order of the trial court is substituted
by the following order:
‘
[37]
Judgment is granted in favour of the plaintiff against the first and
second defendants jointly and severally, the
one paying the other to
be absolved, for: -
(a)
Payment
of the sum of R335 932.94;
(b)
Payment
of interest on R335 932.94 at the rate of 12% per annum from
date of service of the summons to date of final payment;
and
(c)
Costs
of suit.’
(3)
The first and second appellants, jointly
and severally, the one paying the other to be absolved, shall pay the
respondent’s
costs of the appeal, including the costs of the
applications for leave to appeal to the court
a
quo
and to the Supreme Court of Appeal.
L R ADAMS
Judge of the High Court
Gauteng
Local Division, Johannesburg
HEARD ON:
22
nd
February 2021 – in a ‘virtual hearing’
during a videoconference on the
Microsoft Teams
digital
platform.
JUDGMENT DATE:
28 May 2021 – judgment handed down electronically
FOR THE FIRST AND SECOND APPELLANTS:
Advocate Steven Katzew
INSTRUCTED BY:
Carvalho Attorneys, Alberton
FOR THE RESPONDENT:
Advocate Francisca Bezuidenhout
INSTRUCTED BY:
Jay Mothobi Incorporated, Johannesburg
[1]
First defendant in the trial court
[2]
Plaintiff in the trial court
[3]
Second defendant in the trial court
[4]
Govan v Skidmore
1952 (1) SA 732
(N) at 734C – D
[5]
Ocean Accident and
Guarantee Corporation Ltd v Koch
1963 (4) SA 147
(A) at 159C – D
[6]
National Employers'
General Insurance Co Ltd v Jagers
1984 (4) SA 437
(E) at 440D – G
[7]
Minister of Water and Environmental Affairs v
Kloof Conservancy
(106/2015)
[2015]
ZASCA 177
;
[2016] 1 All SA 676
(SCA);
[2016] 1 All SA 676
(SCA) para
14
[8]
P M obo T M v Road Accident Fund
(1175/2017)
[2019] ZASCA 97
;
[2019] 3 All SA 409
(SCA);
2019 (5) SA
407
(SCA);
[9]
Eke v Parsons
(CCT214/14) [2015] ZACC 30; 2015 (11) BCLR 1319 (CC); 2016 (3) SA 37
(CC)
[10]
Mansell v Manse
ll
1953 (3) SA 716 (N)
[11]
Myers v Abramson
,1951(3)
SA 438 (C) at 455