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[2023] ZAFSHC 129
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Walsun Motordienste CC v Combrink N.O. and Others (A63/2022) [2023] ZAFSHC 129 (14 April 2023)
IN
THE HIGH COURT OF SOUTH AFRICA
FREE STATE
DIVISION, BLOEMFONTEIN
APPEAL No.:
A63/2022
Reportable: YES/NO
Of Interest to other
Judges: YES/NO
Circulate to
Magistrates: YES/NO
In the matter between:
WALSUN
MOTORDIENSTE CC
Appellant
and
JOHANNES
ANDRIES COMBRINK N.O.
1
st
Respondent
JOHANNES JOCHEMUS
COMBRINK N.O.
2
nd
Respondent
JAN
LODEWYK VOSLOO N.O.
3
rd
Respondent
CORAM:
REINDERS J, DANISO J
et
VAN RHYN J
HEARD
ON:
28 NOVEMBER 2022
DELIVERED
ON:
14 APRIL 2023
JUDGMENT
BY:
REINDERS, J.
[1]
It is common cause that the Joe Combrink Family Trust (the “Trust”)
as represented by its trustees
(the plaintiffs in the action and
respondents in this appeal, to which reference will be made
interchangeably), and the defendant
(appellant in this appeal, Walsun
Motordienste CC as represented by Mr P du Preez with similar
interchangeable reference) during
August 2014 concluded a written
agreement. In terms thereof the defendant leased the commercial
premises of the Trust for the purposes
of conducting a fuel filling
station from the said premises. This agreement commenced on 1
September 2014 and contained an option
at the choice of the defendant
to renew the agreement for a further five years.
[2]
During March 2020 the plaintiff issued a summons in this court under
civil case number 1375/2020 wherein it
sought orders cancelling the
agreement alternatively confirmation of cancellation of the agreement
of lease, an order ejecting
defendant from the property and further
ordering defendant to pay the costs of suit.
[3]
The matter was defended and ultimately came before a single judge of
this Division (Mhlambi J) who on 11 November
2021 granted orders of
cancellation and ejectment of the defendant and further directing
defendant to pay the costs of suit. On
application by defendant,
Mhlambi J granted leave to appeal to the full bench of this court
against the whole of the judgment and
order.
[4]
The plaintiff in the summons averred that in terms of the agreement,
defendant was to obtain a license in
respect of the business to be
conducted on the property, and in the event any licences in respect
of the business were to be cancelled
or refused, the agreement could
be cancelled. As the business is a retail business as contemplated in
the Petroleum Products Act
120 of 1977 (the “Act”), a
person may not retail prescribed petroleum products without an
applicable retail license.
Such a license is not transferrable.
Defendant failed to obtain a retail license, thereby repudiating the
agreement and entitling
plaintiff to cancel the agreement.
[5]
In the amended plea filed on behalf of defendant no issue was taken
with the terms alleged by the plaintiff
as contained in the written
agreement.
[6]
The defendant however averred that, at the time of contracting with
the Trust, a retail license did exist
for the sale of petroleum
products ostensibly issued in the name of the Trust and accordingly
it was not necessary for defendant
to apply for a retail license.
Defendant further averred that the mentioned license had to be
cancelled first before a retail license
could be issued on behalf of
defendant, however first and second plaintiffs, in their capacities
as the holder of the retail license
(being Shakina Trading 5 CC
(“Shakina Trading”)) prevented the defendant from
obtaining the license. The defendant
lastly averred that clause
11.2
[1]
of the agreement granted
the right to defendant only to cancel the agreement, and not the
plaintiff.
[7]
The appellant’s grounds of appeal can be summarised as follows;
That
the court
a quo
erred:
·
by granting judgment against the appellant for cancellation of the
lease
agreement, the ejectment of the appellant from the premises and
costs of suit;
·
by failing
to consider that, in terms of section 2B(4) of the Petroleum Products
Act
[2]
(the “Act”)
the Credit Controller of Petroleum Products (the “Controller”)
may only issue one retail licence
per site;
·
by not finding that it was an implied term of the agreement between
the
appellant and the Trust and/or that there was a legal duty upon
the Trust, as envisaged in section 2B (4) of the Act, to ensure
that
the cancelation of the existing retail licence for the site is
effected to enable the appellant to obtain a retail licence;
·
by failing to consider the failure of the Trust to cancel the
existing
retail licence and that same constitutes a breach of an
implied term of the agreement between the parties and/or that it was
wrongful
and made it impossible for the appellant to obtain a retail
licence for the site;
·
by failing to take into consideration that the appellant endeavoured
to
obtain a retail licence for the site, that the appellant is still
able to obtain same and that the Trust was entitled to cancel
the
agreement.
[8]
When the appeal was heard the arguments were confined to the defence
that the first respondent and/or the
second respondent (and/or Mrs
Van Zyl who had, prior to the conclusion of the agreement, resigned
as a member of Shakina Trading
according to her testimony) in their
capacities a holders of the retail licence in the name of Shakina
Trading in respect of the
premises, prevented the appellant from
obtaining the requisite retail licence by refusing to cause the
surrender of the existing
licence.
[9]
Mr Groenewald, counsel on behalf of the appellant, argued that there
are three broad categories within the
ambit of which a debtor can
rely on a creditor’s wrongful conduct as an excuse for the
debtor’s failure to perform
exist. These categories are where:
·
wrongful conduct of the creditor makes performance impossible;
·
the creditor’s wrongful conduct can be ascribed to a deliberate
intention
on his/her part to prevent performance by the debtor;
·
the
creditor’s conduct complained of by the debtor in itself
constituted a breach of an express or implied term of the
agreement.
[3]
[10]
On behalf of the appellant submissions were made to the following
effect: It was an implied term of the agreement that
there existed a
legal duty upon the respondents to ensure that the cancellation of
the existing retail licence is effected so as
to enable the appellant
to obtain a retail licence as envisaged in section 2B(4) of the Act.
The expression ‘implied term’
of a contract is used to
describe an unexpressed provision of a contract which the law imports
therein, generally as a matter of
course, without reference to the
actual intention of the parties. It simply represents a legal duty
(giving rise to a correlative
right) imposed by law, unless excluded
by the parties.
[4]
An implied
term of a contract therefore does not originate from the contractual
consensus
of the parties. Mr Groenewald contended that the court
a
quo
erred by not finding that the failure of the Trust to effect the
cancelation of the existing retail licence, constituted a breach
of
an implied term of the agreement between the parties and/or was
wrongful and made it impossible for the appellant to obtain
a retail
licence for the filling station as provided for in terms of the
provisions of the Act.
[11]
Counsel on behalf of the Trust, Mr Hefer SC, argued that apart from
the provisions of the lease agreement, Mr Du Preez
was informed of
the obligation to apply for a retail licence on 15 March 2018 and
responded through his attorney that the agreement
between the parties
was that Mr Du Preez would utilise the existing retail licence
obtained by Shakina Trading. In the event of
the Trust insisting on
the appellant obtaining the necessary retail licence, such
application will be made by Mr Du Preez.
[12]
The respondents contended that it is evident from the record that Mr
Du Preez dragged his feet and only subsequent to
the issue of summons
during 2018, made two insufficient attempts to request the assistance
of Mrs Van Zyl and the first respondent
to obtain the requisite
retail licence. The appellant did not adhere to the provisions of the
lease agreement by failing to diligently
apply for and take the
necessary steps in order to obtain the said licence. The appellant
bears the onus to establish impossibility
to comply with the
provisions of the lease agreement and has failed to discharge such
onus of proof.
[13]
The trial court was not convinced of any of the relied upon defences.
The trial judge on the evidence found that the
defendant failed to
take any steps to compel the plaintiff to make it possible for
defendant to obtain a valid retail license.
I agree. It is common
cause that the appellant, at no stage since September 2014 applied
for an order compelling Mrs Van Zyl and/or
the first defendant to
cooperate in this regard. In his judgment Mhlambi J questioned this
inaction of Mr Du Preez to take the
necessary steps to apply for a
retail licence notwithstanding such demand and the subsequent legal
action in the Magistrate’s
Court for cancellation of the
agreement (which was subsequently withdrew due to the incorrect
citing of the defendant). In referring
to the action in the
Magistrate’s Court Mhlambi J pointed out defendant’s
failure to institute or mention in a counter-claim
anything in
respect of plaintiff’s duty to assist in obtaining the license.
On the contrary, in the Magistrate’s Court
the defendant rather
relied on the non-variation clause contained in clause 17 of the
written agreement.
[5]
I agree
with the trial judge in this regard. No counterclaim was instituted,
neither in the Magistrate’s Court nor in the
court
a
quo
.
[14]
During the trial in 2020 Mr du Preez proffered another explanation
for his failure to apply for a valid license namely
an oral agreement
between him and the first defendant in respect of the Shakina Trading
license. Clause 17 of the agreement makes
it clear that, loosely
translated, the agreement is the complete agreement between the
parties and that no amendment of the agreement
would be valid or of
any effect except if it had been reduced in writing and signed by the
parties. Put differently, none of the
allegations by the defendant
could hold any water safe if it had been put in writing and signed by
both parties. This did not happen.
Apart therefrom the Section 2 of
the Act (read with Section 2A) makes it clear that a person and/or an
entity may not retail prescribed
petroleum products without an
applicable license issued by the controller. Such a license is
legally not transferrable. In his
evaluation of the evidence
presented by Mr Du Preez, Mhlambi J found that Mr Du Preez admitted
that he had to obtain a retail licence
to conduct the business of
retailing fuel. He failed to do. As a person who manages three
filling stations his concession is telling
and nullifies the effect
of all the defences raised on his behalf.
[16]
The plaintiff, based on the absence of such a license, decided to
cancel the agreement, and rightly so in my view. Not
only have the
parties agreed that defendant would obtain the necessary license, but
the Act compels the defendant to do so. At
the time of the hearing of
this appeal defendant was still in default in respect of this
particular obligation and was still in
occupancy of the premises,
presumably retailing fuel in contravention of the provisions of the
Act. In the absence of an obtained
license, defendant may not conduct
business on the premises. The court may not be a party to
transgressing the Act. This is exactly
what the defendant asks from
court, namely to keep the agreement in place. For the same reasons I
cannot find that defendant had
extended the lease agreement as per
clause 11.2. The lease agreement in any event lapsed by effluxion of
time on 31 August 2019.
[17]
In my mind there is no doubt that the trial court came to the correct
conclusion in finding that the plaintiff had made
out a proper case
for the cancellation of the agreement and the ejectment of the
defendant from the premises, as well as the consequent
order of costs
to be paid by the defendant. The appeal cannot succeed.
[18]
In the result I make the following order:
The
appeal is dismissed with costs.
REINDERS
J
I
concur.
DANISO
J
I
concur.
VAN
RHYN J
On behalf of the
appellant: Adv
W Groenewald
Instructed by:
SYMINGTON
& DE KOK ATTORNEYS
BLOEMFONTEIN
On behalf of the
respondents: Adv J J F
Hefer SC
Instructed by:
ETIENNE
VISSER ATTORNEY
BLOEMFONTEIN
[1]
Clause
11.2 reads: “Ten spyte van enigiets wat hierin vervat is, as
die lisensies wat vereis word vir die uitvoering van
die besighede
op die perseel op enige stadium gekanselleer of geweier word as
gevolg van omstandighede buite die beheer van die
huurder, sal die
huurder geregtig wees om hierdie huurkontrak te kanselleer sonder
benadeling van enige eis om skadevergoeding.”
[2]
120 of 1977.
[3]
Academy of Learning (Pty) Ltd and Others v Hancock and Others
2001
(1) SA 941
(C) at 952F-953D.
[4]
A. McAlpine & Son (Pty) Ltd v Transvaal Provincial
Administration
1974 (3) SA 506
(A) at 531D-F.
[5]
Clause
17 reads:
“
17.1
Die huurkontrak vorm die totale ooreenkoms tussen die partye.
17.2
Geen party in hierdie ooreenkoms sal berus op enige waarborge, voor
stellings, openbaarmakings,
uitdrukkings van mening wat nie omvat
word in hieride ooreenkoms as waarborge of ondernemings nie.
17.3
Geen wysigings of ooreengekome kansellasie van hierdie ooreenkoms
sal van enige krag
of effek wees tensy dit op skrif gestel end deur
beide partye onderteken is nie.”