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[2021] ZAGPJHC 353
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BMK Kitchenbrand (Pty) Ltd and Another v SAPOR Rentals (Pty) Ltd (A5014/2019) [2021] ZAGPJHC 353 (28 May 2021)
THE
REPUBLIC OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NO
:
A5014/2019
REPORTABLE:
NO
OF
INTEREST TO OTHER JUDGES:
NO
REVISED:
Date:
28
th
May 2021
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