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[2012] ZASCA 145
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Transman (Pty) Ltd v South African Post Office Ltd and another (778/2011) [2012] ZASCA 145; [2013] 1 All SA 78 (SCA) (28 September 2012)
THE SUPREME COURT OF APPEAL OF
SOUTH AFRICA
JUDGMENT
Reportable
Case No:
778/2011
In the matter between:
TRANSMAN (PTY) LIMITED
.................................................................
APPELLANT
and
SOUTH AFRICAN POST OFFICE LIMITED
...........................
FIRST
RESPONDENT
AUTENMAS PLACEMENTS CC
.......................................
SECOND
RESPONDENT
Neutral citation:
Transman (Pty) Ltd v South
African Post Office Ltd and Another
(778/11)
[2012] ZASCA 145
(28
September 2012)
Coram
: BRAND, PONNAN, TSHIQI, PETSE JJA and
SOUTHWOOD AJA
Heard: 31 AUGUST 2012
Delivered: 28 SEPTEMBER 2012
Summary: Contract to render a service – part of
remuneration provision vague but sought to be enforced –
whether can
be implied that reasonable allowance payable –
evidence not establishing that the claim was calculated according to
an industry
norm or method – or otherwise reasonable –
procedure – parties re-defining (at the pre-trial conference
and elsewhere),
the issues to be decided – acceptable procedure
in the circumstances
ORDER
_____________________________________________________________
On appeal from
:
North
Gauteng High Court, Pretoria (Makgoba J sitting as court of first
instance):
The appeal is dismissed with costs, such costs to
include the costs of two counsel.
JUDGMENT
SOUTHWOOD AJA (BRAND, PONNAN, TSHIQI, PETSE JJA
concurring)
[1] This appeal is concerned with the interpretation and
implementation of a written agreement in terms of which the appellant
(Transman)
undertook to provide temporary workers to the first
respondent (SAPO) in return for a ‘fee’ and an
‘allowance’
for benefits prescribed by the Basic
Conditions of Employment Act 75 of 1997 (BCEA). The primary dispute
relates to the meaning
to be attached to the phrase ‘allowance
for benefits as prescribed by the BCEA’. The court
a quo
(Makgoba J), found against Transman on that issue: it held that
in the absence of agreement determining the allowance to be paid,
Transman is not entitled to payment of such an allowance. It also
held against Transman on the other agreed issues and pursuant
to
these findings issued declaratory orders. With the leave of the court
a quo Transman appeals against four of these orders and
the exclusion
from the costs order of the expert’s qualifying fee.
[2] On 30 March 2000 Transman,
Autenmas Placements CC, the second respondent, and SAPO entered into
a written ‘Temporary Assignments
and Permanent Appointments
Services Contract’ (‘the agreement
1
’
)
in terms of which:
(1) the agreement would subsist for a period of two
years from 1 April 2000 to 31 March 2002;
(2) Transman would provide temporary workers for SAPO in
accordance with SAPO’s requirements and needs;
(3) Transman would employ the workers and pay their
salaries and
employment benefits;
(4) SAPO would pay to Transman, in respect of each
temporary
worker provided by Transman, a fee and an allowance in
accordance with clause 3.8.1 of the agreement which reads as follows:
‘
It is
hereby accepted by [SAPO] that should [Transman] have
performed its mandate to locate
staff member(s)/candidate(s) to
be appointed by [SAPO], then
[SAPO] shall pay [Transman] a
fee per staff member per hour.
T
he amount
referred to is arrived at by means of calculating the hourly rate of
an employee in the permanent employment of [SAPO]
who is
performing a similar
task/job/service. In addition to the hourly
rate an allowance for benefits
as prescribed by the BCEA will
be made’;
(5) all rates/fees payable in respect of temporary
placements made
would be subject to clause 5.8.3 the relevant part of
which stipulates:
‘…
all
rates/fees for temporary assignments will be subject to
adjustment yearly not to exceed
the consumer price index.’
[3] The parties agreed to extend the duration of the
agreement and it remained in force until 31 March 2005: a total
period of five
years. During that period Transman provided temporary
workers for SAPO and because SAPO failed to provide Transman with the
hourly
rates of the employees in its permanent employment (as it was
obliged to do in terms of the agreement) Transman estimated these
hourly rates and presented to SAPO, for its services, invoices which
were based on these estimates. Eventually, in November 2004,
Transman
launched an application against SAPO in the North Gauteng High Court,
Pretoria in which Transman sought inter alia an
order that SAPO
deliver details of the remuneration paid to the relevant categories
of permanent employees. On 19 May 2005, the
High Court
(
RD
Claassen J) ordered SAPO to deliver forthwith, details of the
relevant remuneration for the period April 2000 to 19 May 2005
and
issued a declarator as to the method by which the fee payable by SAPO
in respect of each temporary employee must be calculated.
SAPO
successfully appealed against that order to the full court which
ordered that the judgment and order of Claassen J be set
aside and
replaced with an order referring the matter to trial.
[4] In the meantime Transman had instituted an action
against SAPO in the North Gauteng High Court in which Transman,
relying on
the figures furnished by SAPO pursuant to the order made
by Claassen J, claimed from SAPO payment of the sum of R34 870
137,36.
After the full court’s order Transman delivered a
declaration and the parties exchanged pleadings in the application
under
case number 32873/2004. For purposes of trial the two actions
were consolidated.
[5] The consolidated proceedings were set down for trial
on 24 April 2010. On that day, by agreement between Transman and
SAPO,
Ledwaba J made the following order:
‘
1. It
is declared that:
1.1 In terms of the original
agreement (as defined in paragraph 3.1 of the declaration under case
number 32873/2004) and the agreement
(as defined in paragraph 3.11 of
the said declaration) the first defendant [SAPO] is obliged (subject
to the issues referred to
in paragraph 3.1 and 3.2 below) for the
period 1 April 2000 until 31 March 2005 to:
Pay to the plaintiff
[Transman] for each temporary employee placed by the plaintiff
with the first defendant an amount representing
the total of:
The hourly rate of a
permanent employee employed by the first
defendant in a similar
task/job/service (subject to such adjustments as are provided for in
the agreement); and
An allowance for benefits
prescribed by the
Basic Conditions
of Employment Act 75 of 1997
;
2. The calculation of the amount
to be paid in accordance with paragraph 1.1 is to be calculated by
agreement between the parties
within 40 court days of the granting of
this order, failing which the parties are to refer the matter to
arbitration, if agreed
to by the parties within 5 court days of the
lapsing of the aforementioned period, failing which, the calculation
of the amount
to be paid (including the issues referred to in
paragraphs 3.1 and 3.2 below) shall be determined by this Court at a
date and time
to be arranged with the registrar of this court;
3. The calculation shall be
subject to:
3.1 such claims as may be proved
by the first defendant or agreed to by the parties to have become
prescribed;
3.2 the question of whether
increases in rates/fees are limited in
terms of clause 5.8.3 of the
original agreement and the agreement (as defined);
4. The first defendant shall be
obliged to make payment to the
plaintiff of such amount as
calculated in terms of paragraphs 1, 2 and 3 above, within 5 days of
such amount being determined, together
with interest thereon
calculated at the prescribed rate of 15,5 % per annum from 9 December
2004 to date of payment;
5. The first defendant is to pay
the costs of the trial to date (excluding quantum but including the
reserved costs of the interlocutory
applications set down on 19 April
2010) including the costs of two counsel;
6. The balance of the costs are
reserved.’
[6] The order made on 24 April 2010 thus disposed of
most of the pleaded liability issues and postponed the balance of
these issues
as well as the calculation of the quantum to be resolved
by agreement, and failing such agreement, by arbitration or trial.
[7] The parties did not agree on the amount to be paid
and did not agree to refer the matter to arbitration; they set it
down for
hearing in the High Court on 25 August 2011. At the
pre-trial conference before that hearing the parties agreed on the
method to
be adopted to calculate the amount owing and the issues to
be decided by the High Court. The agreed method differed from that
raised
in the pleadings and it was clear that the parties did not
intend to lead evidence on this issue. The calculation would be done
on the basis of the agreed facts subject to the resolution of the
remaining issues and these would give rise to a number of
permutations.
As a result of the agreements reached at the pre-trial
conference the following issues had to be decided by the High Court:
(1) Whether any allowance was payable by SAPO to
Transman for the benefits prescribed by the BCEA. (As a result of the
order of
Ledwaba J, it was not in dispute that in respect of each
employee placed by Transman with SAPO, SAPO was obliged to pay
Transman
an allowance for these benefits. This issue involved both
the interpretation and implementation of clause 3.8.1, which are
legal
and factual questions.)
(2) Whether, if an allowance was payable, the allowance
should simply be based on the benefits prescribed by the BCEA or,
whether,
in addition, in respect of employees subject to the
jurisdiction of the National Bargaining Council of the Road Freight
Industry
(NBCRFI), the allowance should be based on the benefits
prescribed by the BCEA as amended by the NBCRFI collective
agreements.
(This issue depended upon the interpretation of clause
3.8.1 of the agreement.)
(3) Whether, if an allowance was payable, it must
include, in respect of all employees, all the benefits reflected in
the benefit
tables in terms of the BCEA and in respect of those
employees subject to the NBCRFI, the benefits reflected in the
benefit tables
in respect of the NBCRFI, prepared for each year of
the contract period. (This issue depended upon the interpretation of
clause
3.8.1 and other clauses in the agreement.)
(4) Whether, the amounts reflected in Transman’s
invoices issued prior to 9 November 2001 had prescribed. (This was a
factual
issue.)
(5) Whether, as recorded in the order of Ledwaba J, the
increases in rates/fees were not to exceed the consumer price index
because
of clause 5.8.3. (This issue depended upon the interpretation
of clause 5.8.3 of the agreement.)
[8] It will be remembered that the resolution of these
issues would determine the amount (if any) to be paid by SAPO to
Transman
and that the resolution of the issues would give rise to a
number of permutations. No information was placed before the court a
quo regarding the underlying facts in respect of each employee which
Transman placed with SAPO: ie (1) the identity of the employee;
(2)
the gender of the employee; (3) the date on which Transman placed the
employee with SAPO; (4) the period for which Transman
placed the
employee with SAPO – whether it was hours, days, weeks, months
or years; (5) whether the employee was permanently
employed by
Transman, and, if so, for how long; (6) whether Transman employed the
employee specifically for the purpose of placing
him or her with
SAPO; (7) whether Transman paid the employee any benefits prescribed
by the BCEA and, if so, how much in respect
of each benefit; (8)
whether Transman paid the employee any benefit prescribed by any
NBCRFI agreement, and if so, which agreement
and how much in respect
of each benefit prescribed by that agreement. Obviously all these
facts are known to Transman and must
have been agreed by the parties
for the purpose of doing the calculations. The parties have also
agreed on a series of calculated
amounts based on these permutations
and these have been placed before the court.
[9] After hearing the evidence of Transman’s
witness, Mr Kevin Alexander Cowley, who was the only witness and who
testified
as an expert about the calculation of the fee and allowance
payable in terms of clause 3.8.1 (the latter based on the benefits
prescribed by the BCEA and the NBCRFI agreements) the court
a quo
found that (1) no amount is recoverable by Transman as an
allowance for BCEA benefits in the absence of an agreement between
the
parties as to what such allowance should be (ie the
interpretation and implementation of clause 3.8.1); (2)(i) the words
‘an
allowance for benefits as prescribed by the BCEA will be
made’ do not include benefits under the NBCRFI agreements and
ordered
that such benefits must be excluded in making the allowance;
(ii) in making the allowance for benefits prescribed by the BCEA the
following must be excluded: (a) annual leave, sick leave, family
responsibility leave, items referred to in Transman’s schedules
as LNR (i.e. amounts for legitimate expectation of continued
employment/ notice/ retrenchment/ legal costs/ industrial/ action/
CCMA/ interdicts), public holidays and night shift; (b) levies paid
to statutory funds such as the Unemployment Insurance Fund,
Skills
Development Levy and the Workman Compensation Commissioner (ie
interpretation of clause 3.8.1); (3) any increases in the
hourly rate
of employees placed by Transman with SAPO would be limited to the
consumer price index and made an order accordingly
(ie the
interpretation of clause 5.8.3); (4) none of the amounts reflected in
invoices issued before 9 November 2001 had become
prescribed and that
the defence could not succeed (ie prescription). The court a quo also
disallowed the expert fees of Mr Cowley.
[10] It is clear that if the first finding of the court
a quo is upheld the calculations show that SAPO is not indebted to
Transman
in any amount. Transman’s counsel acknowledged this to
be so and it is therefore the crucial issue in this appeal.
[11] It is well-established that
parties to litigation are free to re-define, by agreement (usually at
the pre-trial conference),
the issues which they wish the court to
decide, and that, in the absence of special circumstances, they will
be held to such an
agreement.
2
In the present case the parties, by
their agreements, particularly at the pre-trial conferences, have
radically re-defined the issues
in the pleadings, agreed on the
method for calculating the amount claimed and agreed on the relevant
facts for the purpose of the
calculations. There is no reason not to
decide this case in accordance with these agreements. However
practitioners should always
bear in mind that if they wish to have
issues decided separately at different hearings it is essential that
they utilise
Rule 33(4)
to ensure that the orders made in respect of
the separated issues are appealable
3
and to avoid the possibility of
absolution from the instance if all the necessary evidence has not
been led.
[12] The primary issue relates to the
meaning and effect to be given to the sentence in clause 3.8.1: ‘In
addition to the
hourly rate an allowance for benefits as prescribed
by the BCEA will be made.’ The sentence as it stands is vague
(and for
that reason is probably not enforceable)
4
but Transman’s counsel contends
that, despite this not having been pleaded
5
or even raised at the second
pre-trial conference, it must necessarily be implied that the
allowance in respect of the benefits
must be reasonable. The sentence
would then be read to say: `In addition to the hourly rate a
reasonable allowance for benefits
as prescribed by the BCEA will be
made’. In support of this contention Transman’s counsel
relies on authorities dealing
with claims for remuneration based on
contracts of
locatio
conductio operis
or
operarum
where
the remuneration for the work to be done had not been agreed and the
court nevertheless found that a reasonable remuneration
was
recoverable.
6
Transman’s counsel argues that
where the parties had not agreed on the remuneration ‘the
remuneration will be that usually
paid in the particular business or
trade’
7
and that ‘others in the same
line of business should be able to state at what price they
themselves would be prepared to undertake
a particular obligation’
8
and that ‘difficulty in
determining what that sum should be should not tempt the Court into
granting an order of absolution
unless the difficulty is absolutely
insurmountable’.
9
[13] This argument seeks to equate
the agreement with an agreement to carry out work or an agreement to
carry out work and supply
materials where there is no agreement on
the remuneration to be paid.
10
It seems to be well-settled that
where there is an agreement to do work for remuneration and the
remuneration is not stipulated
(either expressly or tacitly) it is
accepted that the law provides that it should be reasonable.
11
In such cases before an amount of
money can be awarded the court must be satisfied not only that an
agreement to remunerate reasonably
is to be implied but also that the
amount of reasonable remuneration can be sufficiently certainly fixed
on the evidence.
12
Transman’s counsel contends
that Cowley’s evidence established what a reasonable allowance
was. On the other hand, while
pointing out that a vague provision in
a contract cannot be enforced, SAPO’s counsel expressly
disavows any reliance on the
relevant sentence being void for
vagueness.
13
He simply argues that Cowley’s
evidence did not establish what a reasonable allowance for the
benefits prescribed by the BCEA
would be.
[14] In my view, it is by no means clear that it must be
implied that the allowance for the benefits prescribed by the BCEA
must
be reasonable. This is not a case where the parties failed to
agree on the remuneration to be paid. They did so expressly in clause
3.8.1 of the agreement. SAPO was to pay Transman in respect of each
Transman employee placed by Transman with SAPO a ‘fee
per staff
member per hour’ which would be arrived at ‘by
calculating the hourly rate of an employee in the permanent
employment of [SAPO] who is performing a similar task/job/service’.
In addition to this hourly rate ‘an allowance for
benefits as
prescribed by the BCEA will be made.’ Nothing else was said
about this allowance. There is no indication of any
standard that
could be applied to determine what the extent of the allowance should
be. Transman’s counsel contends that
it must necessarily be
implied that the allowance must be reasonable but it is not clear
that this is remuneration. However, because
of the approach adopted
by SAPO’s counsel, these issues were not debated and it will be
accepted, but not decided, that Transman
can recover an allowance for
the prescribed benefits which is shown to be reasonable: ie one which
can be ‘sufficiently certainly
fixed on the evidence’.
[15] It will have become apparent that the main
difficulty arising from the sentence is the meaning to be given to
the word ‘allowance’.
It is clear that the parties did
not agree that SAPO was obliged to ‘reimburse’ Transman
for the benefits which Transman
was in terms of the BCEA obliged to
pay to its employees: ie that SAPO was obliged to pay to Transman all
the benefits which Transman
was obliged to pay to each employee
placed by Transman with SAPO. This would have been straightforward
and easy to say and to calculate.
Transman’s counsel concedes
that, in context, the word ‘allowance’ means something
less than the full amount.
This means that Transman cannot simply
establish the total value of the benefits prescribed by the BCEA and
claim those as the
allowance. The second difficulty which arises from
the sentence is that the allowance should be based on the benefits
prescribed
by the BCEA and actually paid by Transman to its
employees. The allowance was not to be a theoretical exercise because
the benefits
paid by Transman were known.
[16] Transman’s counsel
contends that Mr Cowley’s evidence establishes what a
reasonable allowance for the BCEA (and
other) benefits would be and
emphasises that his evidence is not disputed by any evidence
presented by SAPO and should therefore
be accepted. It is trite that
even on a question of fact the mere fact that a witness’s
evidence is uncontradicted does not
mean that it must be accepted. It
may be so improbable (or defective for other reasons) that it cannot
be accepted in proof of
the matters testified about.
14
And where that witness is testifying
as an expert the acceptablity of his opinions will depend upon the
quality of the reasoning.
Obviously if the expert addresses the wrong
question or his reasoning is not logical or borne out by the facts
his evidence will
not be acceptable.
15
[17] With regard to the allowance for the benefits
prescribed by the BCEA, Mr Cowley testified with reference to the
schedules he
prepared to assist him to calculate the value of the
benefits prescribed by the BCEA and the NBCRFI agreements. With
regard to
the benefits prescribed by the BCEA, he calculated the
hourly value of each benefit. He did a similar exercise with regard
to the
benefits prescribed by the collective agreements. His point of
departure was to calculate the value of each benefit on the
assumption
the benefit would be paid. He did not take into account
the amounts actually paid by Transman in respect of each benefit and
the
exercise was therefore a completely theoretical one. No allowance
was made for the multitude of variables which would affect the
question of whether the benefit was or would be paid or not. These
factors would include the gender of the worker, how long the
worker
would have to work before becoming entitled to each benefit and the
likelihood of the worker taking the benefit when it
was optional.
There is no evidence about these matters but, as appears from the
examples used, Transman did not keep a large number
of workers in its
permanent employment and would employ workers only when they were
needed by clients such as SAPO. This makes
the methodology employed
by Mr Cowley questionable to say the least. It seems that Transman
would place workers with SAPO for periods
ranging from hours, to
days, to weeks or months and even years. Mr Cowley was unable to say
that there is a uniform approach or
standard in the industry for the
calculation of the benefits and he readily conceded that the
allowance to be made for the benefits
prescribed by the BCEA or the
collective agreements would have to be agreed between the parties.
There is clearly no objective
method whereby a reasonable allowance
for the benefits can be determined. It is obviously not reasonable to
make an allowance for
payment in full of each benefit in respect of
each employee irrespective of whether the employee is entitled to or
paid the benefit.
In any event it is the extent of the allowance
which must be reasonable and Mr Cowley’s evidence does not show
that any proportion
or percentage of the figures calculated would be
reasonable. In view of Mr Cowley’s clear evidence that the
parties would
have to agree on the allowance to be made, the court a
quo was correct in finding that no allowance could be made for the
benefits
unless the parties agreed on what that allowance should be.
[18] A further problem is that Mr
Cowley prepared his schedules without reference to the whole
agreement which is clearly essential
in order to properly construe
the contentious sentence. There are a number of clauses which clearly
exclude liability on the part
of SAPO for most, if not all, of the
benefits prescribed by the BCEA. The court a quo pertinently found
that these clauses exclude
SAPO’s liability and the argument
does not persuade me that this finding was wrong. Transman’s
counsel contends that
the other clauses cannot exclude SAPO’s
liability as that would result in an absurdity – on the one
hand the agreement
would provide for SAPO’s liablity and on the
other hand it would exclude this liability – and these other
clauses should
therefore be ignored. He did not refer to any
authority or principle of the law of contract in support of this
submission. This
may be a badly-worded and inelegantly drawn
agreement but there is no justification for ignoring a number of
clauses pertinently
excluding liability for benefits prescribed by
the BCEA and giving preference to one vague clause providing for such
liability.
It seems to me that the vague clause should yield to the
specific clauses and the meaning of the vague clause should be
modified
to avoid the absurdity or inconsistency.
16
The clause could only refer to those
benefits prescribed by the BCEA which are not excluded by the
agreement.
[19] I am therefore not persuaded that the finding of
the court a quo that other clauses exclude liability for the benefits
prescribed
by the BCEA is wrong. I am also not persuaded that clause
3.8.1 refers to benefits stipulated in the NBCRFI collective
agreements.
The words ‘as prescribed by the BCEA’ in the
clause simply cannot be interpreted to refer to benefits stipulated
in
the collective agreements. The fact that
section 49
of the BCEA
provides for a collective agreement to increase the BCEA benefits and
provide for additional benefits does not affect
the interpretation of
the clause. Benefits provided for in the NBCFRI agreements are not
benefits prescribed by the BCEA.
[20] Finally, I am not persuaded that the finding of the
court a quo that clause 5.8.3 limits increases to the consumer price
index
is wrong. The clause is a general clause which governs, inter
alia, the rates/fees for temporary assignments and specifically
provides
that these rates/fees will be subject to adjustment each
year but subject to the consumer price index. There is no reason why
effect
should not be given to the ordinary grammatical meaning of the
words.
[21] Transman has advanced no reasons
why the court a quo’s refusal to allow the qualifying fees of
Cowley was wrong. In the
light of the court’s findings it must
be accepted that the court did not find Cowley’s evidence of
assistance and therefore
did not allow the fees. Since there has been
no attack on this order there is no reason to interfere with it.
17
[22] The calculation of the amount allegedly owing,
taking into account the findings of the court a quo, showed that SAPO
was not
indebted to Transman at all. The parties agreed that unless
Transman achieves substantial success in the appeal the position
would
not change. Since Transman has not achieved substantial success
no amount is owed by SAPO to Transman.
[23] The following order is made:
The appeal is dismissed with costs such costs to include
the costs of two
counsel, where employed.
______________________
B.R. SOUTHWOOD
ACTING JUDGE OF APPEAL
APPEARANCES
For Appellant: P J van Blerk SC (With A C Botha)
Instructed by:
Sim & Botsi Attorneys Inc, Johannesburg
Lovius Block, Bloemfontein
For Respondent: Paul Kennedy SC (J R Minnaar for
application)
Instructed by:
Maserumule Inc, Johannesburg
Honey Attorneys, Bloemfontein
1
When
they entered into the agreement Transman and Autenmas Placements CC,
the second respondent, were parties to a joint venture.
The second
respondent has not participated in this litigation. No point was
made of this in the court a quo and it requires no
further
consideration.
2
Price
NO v Allied-JBG Building Society
1980
(3) 874 (A) at 882D-H;
Filta-Matix
(Pty) Ltd v Freudenberg and Others
[1997] ZASCA 110
;
1998
(1) SA 606
(SCA) at 614B-D;
F&I
Advisors (Edms) Bpk v Eerste Nasionale Bank van Suid-Afrika Beperk
[1998] ZASCA 65
;
1999 (1) SA 515
(SCA) at 524 F-G.
3
SA
Eagle Versekeringsmaatskappy Bpk v Harford
[1992] ZASCA 42
;
1992
(2) SA 786
(A) at 790G-792H.
4
See
Levenstein v Levenstein
1955 (3) SA
615
(SR) at 619D-E (‘the vague and uncertain language
justifies the implication that the parties were never
ad
idem’).
5
The
last sentence in clause 3.8.1 is not even referred to in the
particulars of claim and declaration and was not dealt with in
the
pleas.
6
Compagnie
Interafricaine de Trauvaux v South African Transport Services and
Others
[1991] ZASCA 16
;
1991 (4) SA 217
(A) at 236C-H;
Chamotte (Pty) Ltd v Carl Coetzee (Pty)
Ltd
1973 (1) SA 644
(A) at 648G-649E;
and
N Goodwin Design (Pty) Ltd v Moscak
1992 (1) SA 154
(C) at 166F-G and
166J-167B.
7
Reference
was made to
Dreyer & Sons Transport
v General Services
1976 (4) SA 922
(C)
at 923D-F.
8
Reference
was made to
N Goodwin Design (Pty) Ltd
v Moscak
supra at 166E-G.
9
Reference
was made to
N Goodwin Design (Pty) Ltd
v Moscak
supra at 167A.
10
E
g
building and engineering contracts and contracts for the repair of
the employer’s property – see
Sifris
en ‘n Ander NNO v Vermeulen Broers
1974
(2) SA 218
(T) at 221F-223A;
Toerien v
Stellenbosch University
1996 (1) SA
197
(C) at 201A-H.
11
Middleton
v Carrr
1949 (2) SA 374
(A) at 385-386;
Inkin v Borehole
Drillers
1949 (2) SA 366
(A) at 373;
Chamotte (Pty) Ltd v
Carl Coetzee (Pty) Ltd
1973 (1) SA 644
(A) at 648H-649F;
Dave
v Birrell
1936 TPD 192
at 195-197.
12
Middleton
v Carr
1949 (2) SA 374
(A) at 386.
13
This
was not pleaded or put in issue at either pre-trial conference.
14
Siffman
v Kriel
1909 TS 538
;
Shenker
Bros v Bester
1952 (3) SA 664
(A) at
670E-G;
Nelson v Marich
1952
(3) SA 140
(A) at 149A-C.
15
Michael
& Another v Linksfield Park Clinic (Pty) Ltd & Another
2001 (3) SA 1188
(SCA) para 34-40.
16
Scottish
Union & National Insurance Co Ltd v Native Recruiting
Corporation Ltd
1934 AD 458
at
465-466.
17
Thompson
v South African Broadcasting Corporation
[2000] ZASCA 76
;
2001
(3) SA 746
(SCA) para 7.