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[2021] ZASCA 46
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Bothma & Others v Bothma N.O & Another (748/2019) [2021] ZASCA 46 (15 April 2021)
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Not
Reportable
Case
No:
748
/20
19
In the matter
between:
PELHAM STEPHANUS
BOTHMA
FIRST
APPELLANT
S BOTHMA &
SEUN TRANSPORT (EDMS)
BEPERK
SECOND APPELLANT
MERINO BOERDERY
BELANGE (EDMS)
BEPERK
THIRD
APPELLANT
PELHAM STEPHANUS
BOTHMA N.O
FOURTH APPELLANT
JOHANNA ELIZABETH
BOTHMA N.O
FIFTH APPELLANT
JAN FW BASSON
N.O
SIXTH
APPELLANT
LOUIS BOTHMA
(JUNIOR) N.O
SEVENTH
APPELLANT
JAN FW BASSON
N.O
EIGHTH APPELLANT
PELHAM STEPHANUS
BOTHMA N.O NINTH
APPELLANT
MAVIS CILLIERS
N.O
TENTH APPELLANT
And
TERTIUS
BOTHMA N.O
FIRST
RESPONDENT
CARINE
BOTHMA N.O
SECOND
RESPONDENT
Neutral
citation:
Pelham
Stephanus Bothma & Others
v
Tertius
Bothma N.O
&
Another
(case
no 748/2019)
[2021] ZASCA
46
(
15
April
2021)
Coram:
DAMBUZA,
SCHIPPERS, PLASKET JJA, GOOSEN and POYO-DLWATI AJJA
Heard:
16
November 2020
Delivered:
This
judgment was handed down electronically by circulation to the
parties' representatives by email, publication on the Supreme
Court
of Appeal website and release to SAFLII. The date and time for
hand-down is deemed to be 10h00 on
15
April
2021.
Summary: Law
of Contract – principles on interpretation of legal documents
restated – only admissible evidence
of context may be led.
ORDER
On
appeal from:
Free
State Division of the High Court, Bloemfontein (Rampai ADJP) sitting
as court of first instance:
1.
The
appeal is dismissed with costs including the costs of two counsel.
JUDGMENT
Introduction
[1]
This appeal concerns the interpretation of the terms of a settlement
agreement which was made an order
of court. The appeal is against an
order of the Free State Division of the High Court, Bloemfontein
(Rampai ADJP, High Court),
in terms of which the appellants were
ordered to pay the respondents an amount of R15 million pursuant to
their breach of the terms
of the settlement agreement. The appeal is
with leave of the high court (Naidoo ADJP).
Background
[2]
The appellants and respondents are close family. The first appellant,
Mr Tertius Bothma, and the first
respondent, Mr Pelham Bothma, are
brothers. They are married to the second respondent Ms Carine Bothma
and fifth appellant, Ms
Johanna Bothma, respectively.
[3]
For the 33 years leading up to 2005 the brothers conducted a sand
mining and distribution business together.
The business was started
by their father in the 1950’s. In 2005 the brothers parted
ways. An agreement (skeidingsooreenkoms)
concluded at their
separation provided that Mr Pelham Bothma and his group of businesses
(the appellants) would take all the business
equipment and
machinery.
[1]
They then had to
bear the responsibility, including the cost, of rehabilitating a
mining site on Portion 3 of Farm 442 Londondale,
on which mining
activities had been previously conducted over an extended period. In
terms of the separation arrangement, Portion
3, including all the
mining and mineral rights attaching thereto, was granted to Mr
Tertius Bothma and Ms Carine Bothma (respondents).
[4]
A dispute arose when the respondents became dissatisfied with the
manner in which the rehabilitation
was progressing. The matter was
referred to arbitration before Judge Eloff (retired). The resultant
arbitral award which was made
an order of court on 20 September 2007,
provided that the second appellant, S Bothma en Seuns Transport,
of which Mr Pelham
Bothma was a director, had to rehabilitate the
land according to a rehabilitation plan (mynplan).
[5]
By 2011 the rehabilitation had still not been completed. Furthermore
the attempts at rehabilitation
were far from satisfactory. The
respondents, representing the Tertius Bothma Investment Trust,
instituted proceedings against the
appellants in the High Court,
claiming payment of R99 047 190.00 as fair and reasonable
costs for the rehabilitation
of Portion 3.
[2]
[6]
On the first day of trial the court held an inspection in loco of
Portion 3. A few days thereafter,
on 21 November 2014, the parties
concluded a settlement agreement which was made an order of court
(per Jordaan J) on the same
day.
[7]
The short settlement agreement provided that:
‘
1
Die Verweerders [appellants in this appeal], gesamentlik en
afsonderlik sal 100 000m
3
(EENHODERD
DUISEND KUBIEKE METER) skoon sand (bolaag uitgesluit) aan die Eisers
[respondents in this appeal] lewer deur dit op te
hoop op die myn
area, wat gelee is? langs die weegbrug op die plaas Boschbank 12 in
die Parys-distrik, te Sasolburg;
2
Die Verweeders sal voormelde sand lewer binne 6 (SES) maande vanaf
ondertekening
hiervan. Lewering sal vooltooi wees wanneer die Eisers
en die Verweerders se opmeters skriftelik sertifiseer dat voormeelde
hoeveelheid
sand opgehoop is, waarna die gebied afgebaken en omheim
sal word deur die Verweerders en uitsluitlike toegang van die gebied
aan
die Eisers oorhandig sal word
3
Die Eisers sal voormelde sand op eie koste vanaf die voormelde gebied
verwyder
binne 36 (SES-EN-DERTIG) maande vanaf datum van lewering
soos in paragraaf 2 vermeld.
4
Die Eisers stem hiermee toe tot die uitreiking van ˋn
mynsluitingsertifikaat,
met betrekking tot die mynlisensie uitgereik
onder verwysingsnommer 4/2004.
5
Die Verweerders trek hiermee alle besware terug teen die Eisers se
voorgenome
vestiging van ˋn visteelplaas op Gedeelte 3 en/of 4
van die plaas Londondale 442 distrik Sasolburg.
6
Die Verweerders trek hiermee alle besware terug teen die Eisers se
voorgenome
vestiging van ‘n stoortenk op Gedeelte 3 en/of 4 van
die plaas Londondale 442, distrik Sasolburg’.
[8]
The accepted translation of paragraphs 1 and 2 of
the settlement agreement was this:
‘
1
The defendants, jointly and severally, shall deliver 100 000m
3
(one hundred thousand cubic metres) of clean sand (topsoil excluded)
to the Plaintiffs by stockpiling it in the mine area situated
next to
the weighbridge on the farm Boschbank 12 in the Parys- district in
Sasolburg;
2
The defendants shall deliver the aforesaid sand within six (6) months
from
the date of the signing hereof. Delivery shall be completed when
the plaintiffs’ and defendants’ surveyors certify in
writing that the abovementioned quality of sand has been stockpiled,
whereafter the area will be cordoned off and fenced by the
defendants
and sole access to the area will be handed to the plaintiffs’.
Those
proceedings were therefore finalised with the appellants undertaking
to deliver 100 000m
3
of clean sand to the respondents
within six months from the date of the conclusion of the agreement
and stockpiling it near the
weighbridge located at Farm Boschbank 12
in Parys. This, however, did not quite happen.
Before
the court a quo
[9]
In 2018 the respondents instituted further proceedings against the
appellants alleging that they had
failed to meet their obligations
under the settlement agreement. At the heart of the dispute was the
interpretation of the first
two clauses of the settlement agreement.
The
pleadings
[10]
The respondents alleged that the material delivered by the appellant
was not clean sand as specified in the agreement;
and that
substantial portions thereof comprised lumpy, clay enriched loamy
soil with no commercial value. They contended that the
material was
not homogeneous, and that some of it had been dumped on sludge and
became contaminated.
As a result
,
although the total volume of the material delivered was 102 110m
3
when purified, it would yield only 65 455m
3
of clean sand.
[11]
The second breach that was alleged was that the material was
scattered in heaps over a wide area, on top of vegetation
and sludge,
rather than being stockpiled near the weighbridge. The respondents
alleged that they would not be able to transport
the material as
efficiently as they would have done had it been heaped as specified
in the agreement. It was also alleged
that delivery was
effected in July 2015, outside the specified six month period which
expired on 21 May 2015.
[12]
The respondents then sought an order for delivery of 100 000m
3
clean sand plus interest calculated on the value thereof,
alternatively, payment of R15 000 000.00, alternatively the
tendered material plus payment of R6 875 000.00 together
with a further 34 545m
3
of clean sand (or its value
of R5 181 750).
[13]
The appellants pleaded that they had fully complied with their
obligations under the settlement agreement. They
contended that the
material delivered was clean sand which was suitable for its intended
use in the rehabilitation of Portion 3.
They also asserted that
although they had no obligation to deliver building sand or sand with
commercial value, they, in fact,
delivered material of commercial
value. They insisted, furthermore, that the clean sand delivered by
them was stockpiled on the
mine area near the specified weighbridge,
and was weighed (gemeet) and certified by their land surveyor
(landmeter).
[14]
In a counterclaim the appellants sought a declaratory order that they
delivered 100 000m
3
clean sand in accordance with the
settlement agreement. They re-iterated their contention that the sand
was intended for rehabilitation
of Portion 3.
The
evidence
[15]
Extensive evidence was led before the court a quo, including evidence
on the background leading to the conclusion of
the settlement
agreement in the proceedings before Jordaan J, the nature or quality
of the material delivered by the appellants,
the purpose for which
the clean sand was to be used, and whether the tendered material was
clean sand. Mr Tertius Bothma, and three
experts: Dr Johan Van der
Waals, a soil scientist, Ms Manjini Mestry, an employee of the
respondents,
[3]
and Mr Morkel
Fourie, whose expertise lay in sand processing and sales, testified
on behalf of the respondents. Mr Jacobus Burger
(Mr Pelham Bothma’s
son in law), who was the Chief Executive Officer at S Bothma en Seun
Transport at the relevant time,
testified on behalf of the
appellants, together with Mr Shane Jeffrey, a civil engineer, Mr Deon
Juckers, a director of operations
at RadioLab, the entity which did
soil testing for the appellants, together with Mr Leornard
Tshabalala, Mr Jorret Mogalaka, Ms
Doris Makhubo and Mr Elphus
Mlotshwa, all employees of RadioLab during the relevant period.
Judgment
of the Court a quo
[17]
The court a quo found, among other things, that the contention
by the appellants that the agreement was concluded
in the course of
settling the respondents’ claim for rehabilitation of Portion 3
was misconceived. The court found that:
‘the action heard by
Jordaan J had nothing to do with rehabilitation of the mining site,
but everything to do with payment
of money instead’. It
rejected the evidence of Mr Jacobus Burger, on behalf of the
appellants, that the term ‘clean
sand’ was intended by
the parties to mean ‘sand without rubble’. The court
upheld the respondents’ contention
that, in the building
industry, clean sand was understood to have commercial value, and was
sand which could be used in the construction
industry. It found that
the appellants had failed to deliver clean sand to the respondents,
that the material was delivered outside
the six month period
specified in the agreement, and that it was not stockpiled as
specified therein.
Issues
on appeal
[18]
In their Heads of Argument the appellants strongly took issue
with the liberal use by the court a quo in
its judgment of
submissions made in the respondents’ Heads of Argument. The
suggestion was that there was uncritical acceptance,
in large
measure, by the court a quo, of the submissions made on behalf of the
respondents, whilst the appellants’ submissions
were ignored. I
can only say that, even if Rampai ADJP invoked portions of the
respondent’s Heads of Argument in his 99 page
judgment it does
not appear that he did not bring an independent mind to bear on the
assessment of the evidence and issues raised
at the trial.
[4]
The extensive examination of case law and the reasoning in the
judgment of the High Court was rather suggestive of an exercise
of
the judge’s own analytical and assessment skills than the
blanket acceptance of submissions suggested by the appellants.
[19]
As to the merits, the contention was that the appellants had met
their obligations under the agreement by delivering
clean sand to the
respondents within the specified period and at the specified
location. The appellants contended that the court
a quo erred in
interpreting clean sand as consisting of a homogenous soil type, and
having commercial value. The argument was that
this interpretation
was an undue extension of the meaning of clean sand. The appellants
also persisted in their argument that the
meaning of clean sand had
to be determined within the context that the respondents had intended
to use it for rehabilitation of
Portion 3. It was submitted
that the court a quo erred in disregarding Mr Burger’s evidence
of that context and consequently
attributed an incorrect meaning to
the words.
The
Law
[20]
The current approach to construction of legal documents has been
explained in various judgments of this court and
the Constitutional
Court, including
KPMG
Chartered Accountants (SA) v Securefin Limited and Another,
[5]
Natal Joint Municipal Pension Fund v Endumeni Municipality,
[6]
and
City
of Tshwane v Blair Atholl Homeowners Association.
[7]
In
Endumeni
this
court outlined the approach to the judicial interpretative exercise
as the process of attributing meaning to the words
used in
legal documents, taking into account the context in which they were
used, ‘by reading the particular provision or
provisions in the
light of the document as a whole and the circumstances attendant upon
its coming into existence’.
[8]
[21]
The Constitutional Court endorsed this approach in
ACSA
v Big Five
[9]
.
And in
Bothma-Batho
Transport (Edms) Bpk v S Bothma & Seun Transport
[10]
this
court reinforced the approach thus:
‘
Whilst
the starting point remains the words of the documents, which are the
only relevant medium through which the parties have
expressed their
contractual intentions, the process of interpretation does not stop
at a perceived literal meaning of those words,
but considers them in
the light of all relevant and admissible context, including the
circumstances in which the document came
into being. The former
distinction between permissible background and surrounding
circumstances, never very clear, has fallen away.
Interpretation is
no longer a process that occurs in stages but is “essentially
one unitary exercise”.’
[22]
The writer G B Bradfield, in
Christie’s
Law of Contract
describes this unitary approach to interpretation of documents as
objective as ‘it entails attributing meaning to the words
used
by the parties as they would be understood in context by a reasonable
person’.
[11]
[23]
In light of the mutual accusations by the parties in this case
regarding the presentation of inadmissible evidence,
the warning
sounded by this court in
Blair Atholl
is particularly
relevant. In
Blair Atholl
this court repeated the warning
previously raised about the increase in the incidence of the courts
allowing inadmissible evidence
on the meaning to be attributed to
words in legal documents. In para [64] of
Blair Atholl
this
court said:
‘
This
court’s more recent experience has shown increasingly that the
written text is being relegated and extensive inadmissible
evidence
has been led. The pendulum has swung too far. It is necessary to
reconsider the foundational principles set out in
KPMG
Chartered Accountants (SA) v Securefin Ltd & Another
.’
[24]
In
KPMG
[12]
this court emphasized the centrality of the agreement to the
interpretative process as follows:
‘
First
the integration (or parol evidence) rule remains part of our law.
However it is frequently ignored by practitioners and seldom
enforced
by trial courts. If a document was meant to provide a complete
memorial of a jural act extrinsic evidence may not contradict,
add or
modify its meaning (
Johnston
v Leal
1980 (3) SA 927
(A) at 943B).
Second,
interpretation is a matter of law and not of fact and, accordingly,
interpretation is a matter for the court and not for
witnesses (or,
as said in common-law jurisprudence, it is not a jury question: Hodge
M Malek (ed) Phipson on Evidence (16 ed 2005)
paragraphs 33-64)
Third,
the rules about admissibility of evidence in this regard do not
depend on the nature of the document, whether statute, contract
or
patent.
Fourth,
to the extent that evidence may be admissible to contextualise the
document (since ‘context is everything’)
to establish its
factual matrix or purpose, or for purpose of identification, one must
use it as conservatively as possible.’
(Footnotes
omitted)
[25]
The interface between the words used by the parties in an agreement
and the context thereof, including the parameters
applicable to
evidence of context is explained in
Christie
:
‘
Despite
its difficulties, [the parol evidence rule] serves the important
purpose of ensuring that where the parties have decided
that their
contract should be recorded in writing and that such contract shall
be the sole, complete record of their agreement,
their decision will
be respected, and the resulting document or documents will be
accepted as the sole evidence of the terms of
the contract. As was
expressed by Corbett JA in
Johnston
v Leal:
“
It
is clear to me that the aim and effect of this rule is to prevent a
party to a contract which has been integrated into a single
complete
written memorial from
seeking
to contradict, add to or modify
the writing by reference to extrinsic evidence and in that way to
redefine the terms of the contract . . .
To
sum up, therefore, the integration rule prevents a party from
altering
,
by the production of extrinsic evidence, the recorded terms of an
integrated contract in order to rely upon the contract as altered.
”’.
[13]
(emphasis
supplied)
[26]
It is against this background that the words used by the parties in
the settlement agreement in this case must
be interpreted. As will
become apparent in the paragraphs below, not all of the evidence
tendered was admissible, and, because
of the conclusion we reach on
the meaning of clean sand, the evidence relating to whether the
appellants delivered the material
within the stipulated period and
whether it was stockpiled as specified has become irrelevant.
Discussion
The
meaning of clean sand
[27]
In terms of the agreement the appellants, jointly and severally, had
an obligation to deliver 100 000m
3
of ‘clean sand’ (excluding topsoil) to the specified
location. As submitted on their behalf there was no suggestion
by any
of the parties that ‘clean sand’ was a term of art.
The term had no specialised meaning. The dictionary
meaning of sand
is: ‘soil containing 85 percent or more of sand and a maximum
of 10 percent clay’,
[14]
or ‘a substance that looks like powder, and consists of
extremely small pieces of stone’,
[15]
or ‘a loose granular substance, typically pale yellowish brown,
resulting from the erosion of siliceous and other rocks and
forming a
major constituent of beaches, river beds, the seabed, and
deserts’.
[16]
Clean sand
therefore would be sand as defined, free of impurities.
[28]
As to the context in which the agreement was concluded, much of it
was apparent from the undisputed allegations
made in the pleadings.
Therein the appellants’ persistent failure to fulfil their
obligation to rehabilitate the mined area
of Portion 3 was
indisputable. It was also common cause on the pleadings that such
failure culminated in a monetary claim instituted
by the respondents
against the appellants in 2011. Therein the respondents sought
payment of R99 047 190.00 on the basis
that: ‘as
gevolg van die onregmagtige optrede van die verweerders ly die eisers
skade in die bedrag voormeld, synde die koste
van die rehabilitasie
van die eiendom, wat verweerders versuim om te doen’.
[29]
It is only in that sense that the rehabilitation of Portion 3 was
part of the background to the settlement agreement.
However the
rehabilitation had become a distant background to the settlement
reached by the parties. The claim that resulted in
the settlement
agreement was a monetary claim for the costs of rehabilitation. It
was therefore incorrect to describe those proceedings
as a
‘rehabilitation claim’ as the appellants sought to brand
them. Since 2005, when the business relationship between
the parties
broke down, the appellants had persistently failed to rehabilitate
Portion 3. The respondents then resorted to seeking
payment of money
in order to cover the costs of the rehabilitation. The money claim
was therefore the relevant context for the
interpretation of the
settlement agreement. The clean sand was accepted in lieu of payment
of the money that had been claimed.
The finding by the court a quo
that the proceedings before Jordaan J had nothing to do with
rehabilitation was therefore correctly
made in this context.
[30]
Furthermore, it was not in dispute that the stipulated rehabilitation
process included removal of building rubble
from Portion 3, landscape
restoration, refilling of the 11 825m
3
mined area with subsoil and topsoil, and restoration of vegetation,
natural ecosystems, and eroded slopes. As against this multifaceted
process, the settlement agreement only provided for delivery of clean
sand by the appellants. If the clean sand was intended
for
rehabilitation of the mined area, the respondents would have to bear
the responsibility and cost of executing all the other
aspects of the
rehabilitation works, including obtaining topsoil which was expressly
excluded in the agreement. That would
not make any business
sense.
[17]
[31]
Mr Burger’s explanation for the exclusion of the topsoil from
the material that was to be delivered to the respondents
made no
sense. He testified that:
‘
.
. . die bolaag in die mynarea wat ons myn, ons moet die bolaag wat
gebere word, want as ons rehabilitasie doen dan word dit oor
die
grond gesprei. So ons mag nie van dit ontslae raak nie, dit moet bly
op die myngebied en dit is hoekom ek pertinent gese het
“bolaag
uitgesluit”.
[32]
The exclusion of the topsoil simply gave the lie to the
rehabilitation purpose theory. It would make no sense that
the
respondents, having quantified the cost of rectifying the breach,
would then agree to a worthless settlement or to a settlement
that
would substantially fall short of that cost.
[33]
Interestingly, despite insisting that the delivered material was
clean sand of commercial value, Mr Burger asserted
that he would
never have agreed to delivery of building sand to the respondents as
that would place them in direct competition
with the respondents in
the business of supply of sand. This argument only served to
obfuscate the appellants’ case even
more rather than strengthen
it.
[34]
The relevant context appears in the evidence of Mr Tertius Bothma.
Although this was evidence of negotiations that
preceded the
settlement it was not intended to, and nor did it have the effect of,
modifying or disputing the contents of the settlement
agreement.
Furthermore this evidence was not disputed. Mr Bothma’s
evidence was that the settlement agreement was concluded
during the
course of the trial before Jordaan J. A day into the trial an offer
of delivery of 50 000m
3
ordinary sand was made to the
respondents on behalf of S Bothma & Seun Transport. That offer
was rejected. Three days later
a further offer was made, this time
for delivery of 82 000m
3
sand. This was met with a
counter-offer that washed sand (gewaste sand) would be accepted. At
that stage the appellants made a
counter-offer of 100 000.00m
3
clean sand which was accepted by the respondents, leading to the
conclusion of the settlement agreement.
[35]
The appellants’ expert, Mr Jeffrey, did not do much to
reinforce the appellant’s case. He made much of the
fact that
the terms ‘building sand’ and ‘plaster sand’
were generally used in the building industry rather
than clean sand.
This evidence was irrelevant. The parties, with their vast experience
in the sand mining and sales business, had
chosen the term ‘clean
sand’ in a specific context. The term and the agreement had to
be construed accordingly.
[36]
On the other hand, Mr Fourie described the sand processing procedure
as entailing the sifting of mined sand to
remove the lumps, stones,
vegetation and other impurities before the sand is sold, whether as
building or plaster sand. That evidence
was not in dispute. In as far
as Mr Jeffrey’s evidence was intended to support the contention
that the lumpy sand was suitable
for the rehabilitation purpose, it
did not assist the appellants. As already shown, that interpretation
of the agreement was simply
implausible.
[37]
A further relevant objective fact was that the clean sand had to be
delivered to the farm Boschbank 12 rather than
Portion 3, and had to
be offloaded near the weighbridge, with direct access to a nearby
public road. This was consistent with the
purpose of recouping the
rehabilitation costs. All of this militated against the context
advanced by the appellants, that the clean
sand was intended for
rehabilitation of the mined area.
[38]
There was therefore no merit in the contention by the appellants that
the definition of clean sand as having market
value was an unduly
extended description.
Did
the appellants deliver clean sand?
[39]
It was submitted on behalf of the appellants that the evidence of Dr
Van Der Waals was impermissibly relied on
for the meaning of clean
sand. Indeed reference in Dr Van Der Waals’ evidence to the
attributes of clean sand as stipulated
in the agreement was
inadmissible. However the bulk of Dr Van Der Waals
evidence essentially related to the material
delivered by the
appellants. With reference to photographs and samples taken from the
delivered material he pointed to distinct
colour variations of the
soil. He also referred to the clumps or aggregations which were an
incident of the high clay content in
the soil. The high clay content
in the delivered material was not in dispute. As an expert in soil
science, his comparison of the
delivered material, or portions
thereof, with the properties of sand was not inadmissible. In that
regard his evidence was that:
‘
.
. . when the sand is dry I can make it, it is loose material, there
is no aggregation to it and it runs, when piled in a heap
it runs
down, the typical sand heap. That material by definition may contain
up to 10% of clay or 15% of silt, but it acts, and
to the observer
and to the person feeling it, the person working with it, it feels
like sand, because the clay particles as I indicated
yesterday, if
this is a sand particle the clay particles are adhered to the sand
particle. And because they are a thousand times
smaller than the sand
particle, it is impossible to distinguish them from this sand
particle that there may be clay particles associated
with it. So for
the user that is the feel. It is the feel of sand, it feels like . .
. And to the eye it looks like sand, in other
words the sand run, it
runs like sugar if I could make an analogy. . .’. P11421
[40]
Dr Van Der Waals’ expertise to testify on the quality of the
delivered material and its possible use in the
construction industry
was sufficiently established with reference to his extensive
experience in working with engineers in the
building industry. His
opinion that the tendered material or portions thereof could not be
used for construction was admissible.
The results of the tests done
on the delivered material showed that it could not be used in the
building industry.
[18]
Dr Van
der Waals’ evidence that cracks in a building are often an
effect of using inconsistently constituted sand in
the
construction thereof illustrated the importance of homogeneity in the
constitution of building sand.
[41]
The criticism of Dr Van der Waals’ methodology of random
sampling as not comprehensive was not justified. The tests
conducted
by him at a University of Pretoria laboratory on the samples obtained
by him were not faulted. It was submitted
on behalf of the
appellants that at 86% sand, 4.16% silt and 9.66% clay, the average
results of the tests done place the delivered
material within the
limits of acceptable soil constitution for sand. However, Dr Van Der
Waals’ explanation that the use
of averages was unscientific
was not disputed. In any event, it was common cause on the evidence
that the material delivered was
largely lumpy loamy sand. Indeed, in
the photographs which formed part of the record, the inconsistency in
colour and
constitution
of the material delivered by the appellants were visible.
[42]
Mr Jeffery whose area of expertise was civil engineering, could not
validly impugn the conclusions drawn by Dr
Van Der Waals from his
laboratory tests and the methodology used. Moreover Mr Jeffery’s
own opinion that the clay content
in the delivered material was
acceptable for the material to qualify as sand was drawn from the
discredited RadioLab tests.
[43]
Part of Mr Jeffrey’s criticism of Dr Van der Waals’
methodology was that it was not prescribed by the
South African
National Standards (SANS). Yet the RadioLab tests were not conducted
in conformity with the SANS prescriptions. Only
ten percent of the
number of samples prescribed by SANS were taken, because RadioLab
wanted to save costs. During the cross-examination
of Mr Juckers, the
operational director at RadioLab, it was shown that a set of test
results which were unfavourable to the appellants
had never been
discovered by the appellants. They only surfaced because Mr Juckers
took the wrong file into the witness box. Furthermore
Mr Juckers had
instructed that the plasticity index results of the tests, which
showed the high clay content in the tested material,
be removed, thus
altering the overall results of the tests. Other respects in which
the RadioLab test were unreliable included
errors in recording the
readings of the hydrometer tests.
[44]
The appellants did not discount the inconsistent constitution of the
material delivered by them. The essence of
their case was that the
loamy sand delivered was suitable for rehabilitation of Portion 3 and
therefore they had fulfilled their
obligation in delivering clean
sand. That argument was then modified to the effect that the material
delivered could be used in
the building industry based on the
RadioLab results. The court a quo found the evidence relied upon by
the appellants was unreliable.
There is no basis for us to upset that
finding.
[45]
Consequently the conclusion by the court a quo that the appellants
had failed to deliver clean sand as provided
in the settlement
agreement was correct. A material breach of the agreement had thus
been established. That being the case, it
was not necessary to
determine whether the delivered material was stockpiled as provided
in the agreement and whether it was delivered
within the specified
six months period.
The
quantum of the respondents’ claim
[46]
Exercising its discretion the court a quo considered Mr Fourie’s
evidence on this issue. Mr Tertius Bothma
also had extensive
experience in the business of supply of sand to the building
industry. The court a quo awarded compensatory
damages against the
appellants at R150.00 per m
3.
It was submitted on
behalf of the appellants that the court a quo failed to consider the
difference in the evidence relating to
price and in accepting Mr
Bothma’s price of R150 per m
3
of building sand when
Mr Fourie had distinguished between the price of plaster sand
(R150.00 per m3) and building sand (R125.00
per m
3
). The
argument was that that it was never the respondents’ case that
the appellants were to deliver plaster sand to them.
[47]
It is trite that damages awarded in breach of contract are intended
to place the plaintiff in the same position
she would have been if
the contract had been properly performed.
[19]
In this case, if the appellants had not breached their obligations
under the settlement agreement the respondents would have been
able
to sell the sand delivered to them at their normal price. On Mr
Bothma’s evidence they would have sold the sand for
R150.00 per
m
3
.
The
fact
that another sand supplier, such as Mr Fourie, would have sold it for
R25.00 less per m
3
does not render the respondents’ price unreasonable. There can
be no argument that the respondents were over-compensated.
There is
therefore no valid basis to interfere with the conclusions reached by
the court a quo.
[48]
For these reasons t
he
appeal is dismissed with costs including the costs of two counsel.
N DAMBUZA
JUDGE OF
APPEAL
Appearances:
For
the
A
ppellants:
A Subel SC with C
Acker
Instructed
by:
Philip Coetzer Inc, Centurion
& Tersia Basson Attorneys,
Vereeniging.
Bezuidenhoutz
Inc, Bloemfontein.
For
the Respondents:
A
Joubert SC with P Leeuwner
Instructed
by:
Van
Heereden & Platt Attorneys, Johannesburg.
Rosendorff
Reitz Barry Attorneys, Bloemfotein.
[1]
The main business
of the appellants was conducted through the second appellant, S
Bothma en Seun Transport. The associated entities
were the Pelham
Bothma Investment (beleggings), Trust of which Mr Pelham Bothma and
his wife were trustees. There was also the
Louis Bothma Investment
Trust of which the seventh appellant, Mr Louis Bothma (son of a
deceased brother), together with Mr Pelham
Bothma, Mr Jan Basson,
(eighth appellant), and Ms Mavis Cilliers, (tenth appellant), were
trustees.
[2]
Case No 12311/2011
[3]
Ms Mestry’s evidence
related to the failed attempts to identify, together with the
appellants’ representatives, a
suitable sand stockpiling spot
and method.
[4]
Stuttafords Stores (Pty) Ltd
and Others v Salt of the Earth Creations (Pty) Ltd
2011
(1) SA 267 (CC).
[5]
KPMG Chartered Accountants
(SA) v Securefin Limited and Another
2009
(4) SA 399 (SCA).
[6]
Natal Joint
Municipal Pension Fund v Endumeni Municipality
2012
(4) SA 593 (SCA).
[7]
City of Tshwane v Blair
Atholl Homeowners Association
[2019]
1 All SA 291 (SCA); 2019 (3) SA 398 (SCA).
[8]
A departure from the previous
description of the process given, for example, in
Coopers
and Lybrand and Others v Bryant
[1995] ZASCA 64
;
1995
(3) SA 761
(A) as a multi stage approach, the first stage being
ascertainment of the literal meaning of the words and the next being
consideration
of the ‘context and background circumstances’,
including application of extrinsic evidence of surrounding
circumstances
where there was ambiguity.
[9]
Airports Company South Africa
v Big Five Duty Free (Pty) Limited and Others
2019
(5) SA 1
(CC). See also
Betterbridge
(Pty) Ltd v Masilo and others NNO
2015
(2) SA 396
(GP) at para [8].
[10]
Bothma-Batho Transport (Edms)
Bpk v S Bothma & Seun Transport (Edms) Bpk
[2013] ZASCA 176
;
[2014] 1 All SA 517
(SCA);
2014 (2) SA 494
(SCA)
para 12.
[11]
G B Bradfied;
Christie’s
Law of Contract in South Africa;
7
th
ed; at 241
[12]
KPMG Chartered Accountants
(SA) v Securefin Ltd and Another
2009
(4) SA 399 (SCA).
[13]
Bradfield GB; Christie’s
Law of Contract in South Africa; 7
th
ed; at 226. The difficulties referred to include the fact that when
rigidly applied, by excluding evidence of what the parties
really
agreed on the rule can lead to injustice. The courts have therefore
endeavoured to strike a balance between the liberal
and conservative
application of the rule.
[14]
Merriam Webster Dictionary; See
also the further definition: ‘a loose granular material that
results from disintegration
of rocks, consists of particles smaller
than gravel but coarser than slit, and is used in mortar, glass,
abrasives, and foundry’.
[15]
Collins Dictionary.
[16]
From Oxford English Dictionaries
[17]
See
Endumeni
supra at para 18. The
court held that a ‘sensible meaning is to be preferred to one
that leads to insensible or unbusinesslike
results or undermines the
apparent purpose of the document’.
[18]
There were indications that some of the material could be of use in
some applications in the building industry. However these
results
emanated from tests done by RadioLab which were shown to be
unreliable.
[19]
Bradfield;
supra;
at 642 (including the
authorities cited therein).