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[2016] ZAECPEHC 21
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Pohl v Weyer (4226/15) [2016] ZAECPEHC 21 (10 May 2016)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
NOT
REPORTABLE
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE HIGH COURT, PORT ELIZABETH)
CASE NO. 4226/15
In
the matter between:
MAGDALENA
POHL
APPLICANT
And
BRENDA
JOY
WEYER
RESPONDENT
JUDGMENT
VAN
PAPENDORP A J
1.
The Applicant filed an
application wherein she seeks the following orders:
1.1.1
An order confirming the
termination of the Respondent’s right to perform radiography
services from the Cath Lab at Life St
George’s Hospital and to
vacate such be no later than 20 November 2015;
1.1.2
An order declaring that
the Respondent no longer has the right to perform radiography
services from the Cath Lab at Life St George’s
Hospital and is
ordered to vacate same and/or cease providing such services therefrom
by 30 November 2015, alternatively, should
this period have passed by
date of judgment, within five (5) days from date of the order;
and
1.1.3
That the Respondent is
ordered to pay the costs of this application.
2.
The Respondent opposes
the application and requests me to refer the matter for oral
evidence, alternatively to dismiss the application
with costs as she
disputes the validity of the termination of her contractual
arrangement with the Applicant.
3.
The following facts are
common cause:
3.1
The Applicant and the
Respondent are qualified radiographers
3.2
The Applicant and
Respondent practiced as such from the Cath Lab at St George’s
Hospital, [4... P. D.], Central, Port Elizabeth;
3.3
The nature of the
parties working relationship evolved to that of a joint commercial
venture;
3.4
The Applicant gave the
Respondent written notice of termination of the contractual
arrangement between herself and the Respondent
on the 18
th
of August 2015 and required her to vacate the Cath Lab by no later
than 30 November 2015;
3.5
The Applicant and
Respondent first made contact with each other during July 2009 in
connection with work at the Cath Lab St Georges
Hospital; and
3.6
Both the Applicant and
the Respondent have complied with the internal prescribed
requirements by St Georges hospital to practise
as registered health
care workers at the Cath Lab.
4.
The Applicant obtained
the exclusive rights to provide radiography services at the Cath Lab
at St George’s Hospital as per
Memoradum of Agreement signed by
the Applicant and a duly authorised representative of Life St Georges
on the 19 June and 22 June
2009 respectively (see annexure marked
“MP2”).
5.
The material terms of
this agreement are that:
5.1
The radiographer
(herein after referred to as the Applicant) warrants that she has
obtained and will continue to maintain full and
unconditional
registration as a radiographer with the Health Professions Council of
South African and The Society of Radiographers
of S.A;
5.2
The Applicant shall at
all times staff her practice with properly qualified, competent and
experienced professional;
5.3
The Applicant shall
ensure that a radiographer is available on call 24 hours a day
including weekends and public holidays and undertakes
to prepare a
monthly roster in this regard;
5.4
The Applicant shall
ensure that the services provided by her practice are carried out in
accordance with the policies, procedures
and service standards
required by Life SGH. Such policies, procedures and service
standards shall be reviewed by Life SGH
on an ongoing basis and
should any change or improvement be reasonably requested, the
Radiographer shall ensure that such request
is promptly carried out.
5.5
The Applicant may not
cede, delegate or assign any of her rights or obligations under this
agreement to a third party;
5.6
Life SGH agrees that
the Applicant shall, for the duration of this agreement, have the
sole and exclusive right to provide radiography
services in the Cath
Lab at Life St George’s Hospital; and
5.7
The agreement may be
terminated by either party on three months written notice to the
other party.
6.
The crux of the
Respondent’s opposition lies in par. 14 of her opposing
affidavit wherein she states that:
“
The
only “contractual arrangement” that the applicant and I
have would be the arrangement as I have set out above.
My
working arrangements, tenure, conditions and so on are all arranged
with the hospital itself, and not in any manner with the
Applicant.
It is noteworthy that the Applicant does not attach any written
agreement as to such “contractual arrangement”
to her
application, or even furnishes an explanation as to any such alleged
verbal agreement.”
7.
It is trite law that a
litigant is bound by his or her opposing papers. Counsel for
the respondent addressed the court now
on the existence of a joint
venture in the form of a partnership between the parties and argued
that the Applicant cannot unilaterally
terminate the agreement.
This argument is however completely outside the scope of the
Respondent’s opposing papers,
wherein she expressly stated in
par. 5
“
I
respectfully submit that it is important to note that we practice as
such as completely separate practises, with separate practise
numbers
”
.
8.
It is clear that the
Respondent herself expressly disavows that she practised in
partnership with the Applicant. Accordingly,
any departure from
the true nature of this agreement by the requested oral evidence is
of no consequence and effect as it was clearly
not the intention of
the two parties hereto when they entered into the oral contractual
agreement.
9.
In terms of the oral
agreement between the Applicant and the Respondent, the parties
agreed that the Respondent will render radiography
services at the
Cath Lab St George’s Hospital on the basis that the working
hours required by St George’s hospital,
as well as the income
derived therefrom will be shared equally by herself and the
Respondent. Up until the stage when the
Respondent acquired her
own practise number whether it be January or March 2010, the
Respondent practised under the practise number
of the Applicant.
All income generated were paid into the Applicant’s account and
she then paid the Respondent for
her services render according to the
agreement.
10.
Did the parties,
despite them not exactly agreeing to form a partnership, in actual
fact practiced under a partnership agreement?
It would appear
from the facts that the Respondent was initially employed by the
Applicant to render services at the Cath Lab Life
St George’s
hospital and would receive as payment half of the income derived as
they agreed to work equal working hours.
The question then
arises whether the parties then practiced in partnership from the
stage when the Respondent obtained her own
practice number by virtue
of the fact that the Applicant and Respondent in essence shared equal
working hours?
11.
The basic essentialia
of a partnership has been state in
Joubert
v Tarry & Co
1915 TPD 277
at 280-1 as follows:
“
First
that each of the partners brings something into the partnership, or
bind himself to bring something into it, whether it be
money, or his
labour or skill. The second essential is that the business
should be carried on for the joint benefit of both
parties. The
third is that the objet should be to make a profit. Finally the
contract between the parties should be
a legitimate contract…Where
all these four essentials are present, in the absence of something
showing that the contract
between the parties I not an agreement of
partnership, the court must come to the conclusion that it is a
partnership.”
12.
In
Grütter v Lombard
(
2007)
SCA 2 (RSA) at par.5 the court stated that these characteristics of a
partnership has been summarised in
Pezzutto
v Dreyer
[1992] ZASCA 46
;
1992
(3) SA 379
(A) at 390D-E as follows:
“
In
essence…a partnership is the carrying on of a business (to
which each of the partners contributes) in common for the joint
benefit of the parties with a view to making a profit.”
13.
As from the period when
the Respondent obtained her own practice number, she practiced for
her own account and rendered separate
bills to her patients.
The parties initially only shared the expenditure of the bookkeeper,
but subsequently this arrangement
terminated. The nature of the
relationship disclosed none of the features of a partnership. Each of
the parties
pursued
her own practice, independently of the other, each with her own
clients, each bearing her own expenses and each reaping
the rewards
of her own endeavours to the exclusion of the other.
The
parties merely agreed to share the working hours at Life St George’s
Hospital equally in order to render a twenty four
seven service as
required in the written agreement that the Applicant entered with the
Life St George’s Hospital.
14.
The Respondent
subsequently, with the permission of the Applicant only, engaged into
rendering services at other entities when the
work load decreased
substantially. Any income derived through this was for the
Respondent’s own benefit and account,
which serves to confirm
that there was no partnership in existence between the Applicant and
Respondent as this venture was not
for the joint benefit and profit
of both of them.
15.
The fact that the
Respondent was allowed to render work outside the scope of services
at Life St George’s Hospital Cath Lab
further support the
finding that the parties were not engaged in a partnership agreement,
as the Applicant was expressly excluded
from rendering such
services. This clearly indicates that the Respondent did not
derive her authority to practise at the
Cath Lab from the St George’s
hospital herself, as they would clearly have imposed a similar
exclusion upon her. It
also supports the finding that there was
no partnership agreement in place, as the Respondent would have been
bound by the terms
of the written agreement which the Applicant had
with St George’s Hospital for her tenure of the Cath Lab.
16.
Faced with the
existence of the written agreement between the Applicant and Life St
George’s hospital, the Respondent alleges
that her tenure of
the Cath Lab does not rest on the contractual arrangement that she
entered with the Applicant. The respondent
avers as per par. 13
of her opposing papers that she has an independent working
arrangement with the hospital and that her tenure
does not depend on
her contractual arrangement with the Applicant, hence the Applicant
cannot terminate her working arrangement
with the hospital.
17.
In order to support
this contention the Respondent refers to a conversation that she had
with an ex-employee of Life St George’s
hospital, a Mr Andre
Bothma in par. 13 of her opposing paper. The information stated
in paragraph 13 is however hearsay evidence
and I have to disregard
it for the purposes of this application as it is not supported by any
confirmatory affidavit of this Mr
Bothma.
18.
The Respondent further
attacks the validity of the exclusive agreement entered into between
the Applicant and the Life St George’s
Hospital in June 2009 on
the basis that the Applicant failed to attach the authority of the
person who entered into the agreement
with her on behalf of St
George’s hospital. This objection is unfounded as the
Respondent is not disputing the validity
of the agreement between the
Applicant and Life St George’s Hospital itself.
19.
The Respondent
submitted that in the event where I found that the agreement between
the Applicant and St George’s Hospital
was in existence, she
would not be bound by it, as either the Hospital and/or the Applicant
had the duty to inform her of this
agreement.
20.
If one has due regard
to the nature of the verbal agreement between the Applicant and the
Respondent, which was in the nature of
a joint venture agreement,
whereby the Respondent agreed to provide radiographer services for
her own account and under her own
practice number at request of the
Applicant, no duty to inform the Respondent of this exclusive
agreement of tenure of the Cath
Lab rests on either the Applicant nor
the hospital. Neither the Applicant nor Life St George’s
hospital can be held
to ransom because the Respondent herself did not
secure her position as she alleges, and she did not enquire into the
de facto
position herself.
21.
The Respondent further
challenges the agreement between the hospital and the Applicant on
the basis that it does not make provision
for termination of services
by the Applicant of which ever radiographer she enlists to assist her
at the Cath Lab. Her submission
in this regard is ill-advised
as the hospital is not a party to any contractual agreement that she
enters into with any radiographer
at all.
22.
Mr Dyke, on behalf of
the Respondent, argued that there is a real dispute of fact on the
papers which cannot be determined in these
proceedings. He
further submitted that the present case does not lend itself to the
robust approach that was applied in the
Plascon
Evans
case and
accordingly, the matter should be referred to oral evidence
pertaining to the nature of the legal relationship between
the
Applicant and the Respondent.
23.
The general rule
regarding the approach to evidence on affidavits is that as stated in
Stellenbosh
Farmers’ Winery Ltd v Stellevale Winery (Pty) Ltd
1957 (4) SA 234
(C) at 235 and as set out in
Plascon-Evans
Paints v Van Riebeeck Paints
1984 (3) SA 634
(AD) at H – I :
“
It
is correct that, where in proceedings on Notice of Motion disputes of
fact have arisen on the Affidavits, a final order, whether
it be an
interdict or some other form of relief, may be granted if those facts
averred in the Applicant’s affidavits which
have been admitted
by the Respondent, together with the facts alleged by the Respondents
justify such an order. The power
of the court to give such
final relief from the papers before it is, however, not confined to
such a situation. In certain
instances the denial by the
Respondent of a fact alleged by the Applicant may not be such as t
raise a real, genuine or bona fide
dispute of fact. (See in
this regard Room Hire Co (Pty) Ltd v Jeppe Street Mansions (Pty) Ltd
1949 (3) SA 1155
(T) at 1163-5; Da Mata v Otto N.O.
1972 (3) SA
858
(A) at 882D-H). If in such a case the Respondent has to
availed himself of his right to apply for the deponents concerned
to
be called for cross-examination under Rule 6(5)(g) of the credibility
of the Applicant’s factual averment, it may proceed
on the
basis of the correctness thereof and include this fact among those
upon which it determines whether the Applicant is entitled
to the
final relief which he seeks….Moreover, there may be exceptions
to this general rule, as, for example where the allegations
or
denials of the Respondent are so far-fetched or clearly untenable
that the court is justified in rejecting them merely on the
papers….”
24.
In
Administrator,
Transvaal & Others v Theletsane and Others
[1990] ZASCA 156
;
1991 (2) SA 192
(A) at 204G-205D it was emphasised that our courts
are enjoined to adopt a robust common sense approach to disputes of
fact on
affidavit. Where a court is satisfied as to the
inherent credibility of the Applicant’s factual averment, it
may proceed
on the basis of the correctness thereof and include this
fact among those upon which it determines whether the Applicant is
entitled
to the final relief sought (see
Buffalo
Freight Systems (Pty) Ltd v Crestleigh Trading (Pty) Ltd
2011
(1) SA 8
(SCA) at 14 E-H and
Plascon-Evans
Paints Ltd v Van Riebeeck Paints (Pty) Ltd
supra
at
634-5).
25.
The question arises
whether there is indeed a real, genuine or bona fide dispute of fact
which cannot be determined on the affidavits
which calls for oral
evidence to be lead.
26.
In her answering
affidavit the Respondent did not challenge the nature of the
relationship between her and the Applicant as a ground
for asserting
that the Applicant was not entitled to terminate her agreement with
her, and effectively terminate her tenure as
radiographer at the Cath
lab. Counsel for the Respondent however attempted to do so. The
essence of the Respondent’s
opposition lies therein that she
alleges that she derives her tenure of the Cath Lab from the Life St
Georges Hospital itself.
27.
In view of the
Applicant’s factual averment as to the existence of her written
agreement with the St George’s Hospital,
the fact that no
partnership agreement came into existence between the parties is
inherently probable. The Respondent admitted
as much in her
opposing papers. I may proceed on the basis of the correctness
thereof and include this fact among those upon
which I have to
determine whether the Applicant is entitled to the final relief which
she seeks.
28.
It is however, not in
dispute that the Applicant and Respondent did not expressly agree on
the period of notice that the Applicant
must give the Respondent,
should she wish to terminate the Respondent’s services as
radiographer to the Cath Lab. The
Respondent disputes that a
tacit term exists that should the Applicant wish to terminate her
contract with the Respondent, all
she has to do is give her three
month notice.
29.
In
Wilkens
v Voges
[1994] ZASCA 53
;
1994
(3) SA 130
(A) at 136I Nienaber JA stated:
“
A
tacit term, one so self-evident as to go without saying, can be
actual or imputed. It is actual if both parties thought
about a
matter which is pertinent but did not bother to declare their
assent. It is imputed if they would have assented about
such a
matter if only they thought about it – which they did not do
because they overlooked the present fact or failed to
anticipate a
future one. Being unspoken, a tacit term is invariably a matter
of inference. It is an inference
as to what both
parties must or would have had in mind.”
30.
In
SA
Mutual Aid Society v Cape Town Chamber of Commerce
1962 (1) SA 598
(A) at 615D Van Winsen JA stated:
“
A
term is sought to be implied in an agreement for the very reason that
the parties failed to agree expressly thereon.”
31.
In
Alfred
Mcalpine and Sons (Pty) Ltd v Transvaal Provincial Administration
1974 (3) SA 506
(A) at Corbett AR referred to the well known case of
Reigate v Union
Manufacturing Co.
118
L.T. 479
at p. 483 where Scrutton L. J. stated that:
“
You
must only imply a term if it is necessary in the business sense to
give efficacy to the contract; that is, if it is such a term
that you
can be confident that if at the time the contract was being
negotiated someone had said to the parties: ‘What
will
happen in such a case?’ they would have both replied: ‘Of
course, so-and-so. We did not trouble to
say that; it is
too clear.’”
32.
It is inconceivable
that any party entering into a contractual agreement as the parties
before court did, did not tacitly intend
for the Applicant to have an
equal right to terminate the contract with the Respondent on due
notice. In par. 27 of her Opposing
affidavit, the Respondent concedes
that
“
..while
it stands to be conceded rather obviously that the arrangement
between the Applicant and myself can conceivably be terminated,
the
right to so terminate my practice would vest with the hospital, and
even in that event (and specifically where such process
is so clearly
driven by the Applicant) such termination would not turn only on a
reasonable period for such notice, but also on
a myriad of other
logistical an professional concerns...:.
33.
The question which I
now have to determine is how much notice the Applicant would have to
give to the Respondent to terminate their
joint venture agreement.
34.
In
Putco
Ltd v TV and Radio Guarantee Co (Pty) Ltd
1985
(4) SA 809
(A) at 827G-I Smalberger AJA stated that:
“
They
cannot be held permanently bound when all they contracted for was a
temporary arrangement. Furthermore, when parties
bind
themselves to an agreement which requires them to work closely
together and to have mutual trust and confidence in each other,
of
which the agreement under consideration is an example, it is
reasonable to infer that they did not intend to bind themselves
indefinitely, but rather contemplated termination by either party on
reasonable notice. Where an agreement is silent as to
its
duration, it is terminable on reasonable notice in the absence of a
conclusion that it was intended to continue indefinitely.”
35.
In the circumstances
surrounding the conclusion of the joint venture agreement and having
specific regard to the express agreement
that the Respondent may
terminate the agreement with three month notice, it speaks for itself
that a three month period to either
side would be reasonable under
the circumstances.
36.
The Respondent further
argues that the Applicant does not have any grounds upon which to
terminate their joint venture agreement.
It is clear from the
affidavits that neither party agreed upon the terms upon which the
joint venture agreement between them can
be terminated. Logic
tells that it can be done for a variety of reasons, one being that
the Respondent services is no longer
required because of a breakdown
of the relationship between the parties.
37.
The Respondent argued
that the Applicant failed to establish a breakdown of their working
relationship. It is not in dispute
that the parties attempted
to settle the disputes between them, prior to the Applicant’s
decision to terminate the joint
venture agreement with the
Respondent, despite the Respondent’s averments that there is no
breakdown of the working relationship
between herself and the
Applicant.
38.
In par. 35 of her
opposing affidavit the Respondent stated that:
“
He
suggested that the “problem” could be avoided by the
Applicant subcontracting me, in which event my position would
be
secure. I was absolutely taken aback by this turn of events,
and I immediately asked the Applicant why my name was not
on that
contract as she assured me before I relocated, and she merely
answered by saying that “they must have forgotten”.
I was most upset. I refused to be ‘subcontracted’.
I left that meeting perturbed and feeling betrayed by the
Applicant.”
39.
Having regard to
the various letters and attempts to settle the differences between
the parties and the subsequent failure to do
so, which is attached to
the Applicant’s founding affidavit, it is clear that the
relations between the two parties soured
to the extent that any
continued working relationship has become strained and almost
impossible. On these grounds alone,
the Applicant would be
entitled to have terminated the joint venture agreement as she did.
40.
For all the aforesaid
reasons I have concluded that the Applicant was well within her
rights to terminate the agreement.
41.
ORDER
:
Accordingly
the following order is made:
(a)
The termination of the
joint venture agreement, and concomitant termination of the
Respondent’s right to continue performing
radiography services
from the Cath Lab at Life St George’s Hospital after 30
November 2015, is hereby confirmed.
(b)
The Respondent shall vacate the Cath Lab premises by no later than
five days of this order.
(c)
The Respondent is to pay the costs of this application.
______________________________
O
VAN PAPENDORP
ACTING
JUDGE OF THE HIGH COURT
Appearances
Applicant:
Adv J Huisamen Instructed by
Messrs Greyvensteins
St Georges House
104 Park Drive
PORT ELIZABETH
Respondent:
Adv.
B Dyke Instructed by
Messrs Vlok Attorneys
82 Main Road
WALMER
Date
Heard:
28 April 2016
Date
Delivered:
10 May
2016