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[2022] ZAMPMBHC 2
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Bosbok Ontgenning CC v York Timbers (Pty) Ltd (2239/2017) [2022] ZAMPMBHC 2 (17 January 2022)
REPUBLIC OF SOUTH
AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
(MPUMALANGA DIVISION,
MBOMBELA)
CASE
NO: 2239/2017
REPORTABLE: NO
OF INTEREST TO OTHER
JUDGES: YES
REVISED: YES
17/01/2022
In
the matter between:
BOSBOK
ONTGENNING
CC
Plaintiff
and
YORK
TIMBERS (PTY)
LTD
Defendant
J
U D G M E N T
MASHILE
J:
INTRODUCTION
[1]
This is an application for absolution from the instance. A terse
background from which
it emanates is that on 10 February 2011, the
parties concluded a written
Harvesting
and Transport Agreement (“the agreement”). By effluxion
of time, the agreement expired on 30 June 2015. One
of the salient
provisions of the agreement is that Paragraph 8.3 lays down that
should the Parties, for whatever reason, continue
with the
operational implementation of this Agreement or any part thereof
beyond the Termination Date without expressly and in
writing having
renewed it as envisaged above, or having so renewed it beyond the new
Termination Date, such continuation shall
be subject to 30 (thirty)
calendar days’ written notice of termination by either Party.
[2]
The agreement also contains a non-variation clause unless reduced to
writing and signed
by both parties. A further clause is that the
agreement constitutes the whole agreement between the parties and
supersedes any
other discussions, agreements and/or understandings
regarding the subject matter thereof.
[3]
Bosbok alleges that following termination of the agreement, York
Timber was advised
that Bosbok would increase its rates for the
services that it would henceforth render to it. Bosbok further argues
that with full
knowledge of the increased rates, York Timber, by its
conduct, tacitly accepted them by placing further orders. Bosbok
seeks payment
on the new rates, which it maintains it formally
communicated to York Timber.
[4]
Resisting the claim, York Timber contends that the non-variation
except in writing
clause in the agreement cannot reside together in
the same document as the oral or tacit agreement coming into
existence between
the parties. The terms and conditions of the
agreement that terminated on 30 June 2015, contends York Timber,
persist to find application
after 30 June 2021, the only difference
of course being that it is a month to month agreement that can be
terminated by either
party giving a 30-day notice to the other.
[5]
Apart from the above, maintains York Timber, Bosbok has not pleaded
any facts from which
any court can find that there exists a basis for
the conclusion of a tacit agreement. It is manifest that while there
is no controversy
regarding the coming to end of the agreement on 30
June 2015, a dispute persists on the continued application of the
terms and
conditions of the initial agreement and the coming into
being of another on slightly different terms and conditions, the main
being
the increased rates.
PLEADINGS
[6]
This Court is indebted to the parties for their summary of the areas
of common cause,
disagreements and description of the issues that the
court ought to consider for proper determination of their dispute. In
short,
the statement accentuates pertinent parts of their pleadings
making it unnecessary to quote extensively from them. The
significance
of the statement warrants reproduction below:
“
The following
are common cause
:
1.
That, on or about 10 February 2011, a written
Harvesting and Transport Agreement was concluded between the
Plaintiff and Defendant
and that the mentioned written agreement is
attached to Defendant’s plea as
Annexure
“P1
”.
2.
That the termination date of
Annexure
“P1
” was 30 June 2015.
3.
That
Annexure “P1
”
includes a term which provides that should the parties for whatsoever
reason continue with the operational implementation
of the written
agreement, or any part thereof, beyond 30 June 2015 without expressly
and in writing having renewed it as envisaged
in clauses 8.1 and 8.2
of
Annexure “P1
”,
such continuation shall be subject to 30 calendar days’ written
notice of termination by either party.
4.
That
Annexure “P1
”,
in addition, provides that the agreement constitutes the whole
agreement between the parties and supersedes any other discussion,
agreements and/or understandings regarding the subject matter thereof
(clause 29.1). No amendment or consensual cancellation of
the
agreement or any provision or term thereof or of any agreement or
other document issued or executed pursuant to, or in terms
of, the
written agreement and no settlement of any disputes arising under the
agreement and no extension of time, waiver or relaxation
or
suspension of, or agreement to enforce or suspend or to postpone
enforcement of any of the provisions of the terms of the written
agreement or any other agreement or other document issued pursuant to
or in terms of the written agreement, shall be binding unless
recorded in written document signed by the parties (or in case of an
extension of time, waiver or relaxation or suspension signed
by the
party granting such extension, waiver or relaxation).
5.
That both parties, at least up until 30 June
2015, substantially complied with its obligations in terms of the
agreement.
6.
That subsequent to 30 June 2015 Defendant
proceeded to place orders with Plaintiff by following the normal
procedures as followed
for the preceding four years, for the months
of June, July, August and September 2015.
DISPUTED ISSUES:
7.
Defendant alleges that, on or about 2 July 2015,
and at Sabie, Mpumalanga, Plaintiff represented by Jacobus Johannes
Scheepers,
and Defendant, duly represented by Mr. Pieter van der
Merwe, the general manager: Forestry, alternatively another employee
representing
the Defendant, entered into a verbal agreement,
alternatively a tacit agreement came into being.
8.
That the express, alternatively implied, further
alternatively tacit terms of the verbal, alternatively tacit,
agreement are:
8.1
That Plaintiff agreed and undertook to supply the
Defendant with harvesting and extraction services at different
locations as pointed
out by Defendant;
8.2
That charges to be paid by Defendant to Plaintiff
for the harvesting and extraction services were to be standard prices
as set out
in the contractual agreement entered into and between the
parties during 10 February 2011, which agreement terminated during
June
2015;
8.3
That a higher rate, as communicated on 1 July
2015, would be applicable/payable to/for harvesting and extraction
services.
9.
Defendant, in addition to the contentions below,
disputes the conclusion of the alleged verbal or tacit agreement.
PARTIES
CONTENTIONS:
9.1
Defendant pleads that the conclusion of a
verbal or tacit agreement is, in fact and in law, excluded by the
provisions of the written
agreement attached to Defendant’s
plea as
Annexure “P1
”,
in general, and in particular clause 8.3, which provides that should
the parties (the Plaintiff and Defendant), for whatsoever
reason,
continue with the operational implementation of the agreement, or any
part thereof, beyond the termination date without
expressly and in
writing having renewed it, as envisaged in clause 8.2 of the
agreement, such continuation shall be subject to
30 calendar days’
written notice of termination by either party. The plaintiff submits
that the clause referred to does not
prevent the conclusion of an
oral, tacit or implied contract and pertains to a termination notice
period of any further agreement
entered between the parties which is
not expressly and in writing confirmed between the parties.
CONSEQUENCES OF
FINDINGS
:
10.
The parties are
ad idem
that:
10.1
should this Honourable Court find that:
10.1.1
the Plaintiff satisfied the
onus
of proving that the verbal or tacit agreement
was concluded as alleged by Plaintiff on the terms as alleged by
Plaintiff,
and
10.1.2
that such verbal or tacit agreement is not
excluded by the provisions of
Annexure “P1
”
– for which the defendant has the onus of proving, then:
the Plaintiff must be
successful in its claim against Defendant, for the amount as claimed;
10.2 Should this
Honourable Court find that the Plaintiff has not satisfied its
onus
of proving the verbal or tacit agreement as alleged
or
the
court finds that the verbal or tacit agreement, if proven, is
excluded by the provisions of
Annexure “P1
”, then
the Defendant is successful in its defence and Plaintiff’s
claim must be dismissed.
11.
The parties remain
ad idem
that the costs of the action will be addressed at the hearing of this
action.”
ISSUES
[7]
From the pleadings and evidence levied before court, this Court is
required to make
a decision on the following matters:
7.1 Has
Bosbok made a case both on the pleadings and evidence adduced by Mr
Scheepers at this juncture that can
be consistent with a decision
that a tacit agreement was reached between the parties?
7.2 If
it has not, has Bosbok nonetheless established a case that cannot
vindicate the granting of absolution
from the instance?
7.3
Given the context in which the agreement was entered into, the
purpose and background negotiations leading
to the agreement between
the parties, what can the proper interpretation of Clause 8.3 be?
ASSERTIONS OF THE
PARTIES
[8
]
The plaintiff contends that Clause 8.3, which I will closely
scrutinise as the judgment
unfolds, ‘does not prevent the
conclusion of an oral, tacit or implied contract and pertains to a
termination notice period
of any further agreement entered between
the parties which is not expressly and in writing confirmed between
the parties’.
For purposes of avoiding absolution, Bosbok
believes that the pleadings as are and the evidence adduced until now
is sufficient.
8.1
Conversely, York Timbers argues that Clause 8.3 of the agreement,
both in fact and law, excludes the conclusion
of a verbal or tacit
agreement. Furthermore, Bosbok has not laid a foundation from which
this Court can justifiably find that a
verbal or tacit agreement was
concluded between the parties. As such, there exists no possibility
that a court might find in favour
of Bosbok were the matter to
proceed beyond this stage. Accordingly, granting absolution would be
appropriate.
LEGAL FRAME WORK
[9]
The law that governs the granting or refusal of absolution is trite
and that much
is common cause between the parties. The test to be
applied for absolution, usually at the end of the plaintiff’s
case, is
not whether or not the evidence levied before court by the
plaintiff demonstrates what would customarily be necessary to be
proved
at the conclusion of the case of both parties. Instead, a
court should ask itself whether or not there is evidence upon which a
Court, applying its mind reasonably to such evidence, ‘could or
might’ and not should, nor ought to’ find for
the
plaintiff were the matter to proceed to finality. See,
Claude Neon
Lights (SA) Ltd v Daniel
1976 (4) SA 403
(A)
[10]
It has been said that the test entails that a plaintiff has to make
out a prima facie case such
that there is evidence relating to all
the elements of the claim to survive absolution because without such
evidence no court could
find for the plaintiff. See,
Marine &
Trade Insurance Co Ltd v Van der Schyff
1972 (1) SA 26
(A) at
37G - 38A
. insofar as inferences from the evidence are concerned,
the inference relied upon by the plaintiff must be a reasonable one,
not
the only reasonable one. See, Schmidt at 93). That said, a court
should not be too eager to grant absolution at the end of the
plaintiff’s case unless doing so, after a careful consideration
of the circumstances, will be in the interest of justice.
See,
Gordon
Lloyd Page & Associates v Rivera
2001 (1) SA 88
(SCA).
[11]
Turning to tacit agreements. It is trite that a party intending to
rely on a
tacit agreement must plead and
prove the facts from which a court can infer
that
actual and true consensus happened
. See,
Sewpersadh v Dookie
2009
(6) SA 611
(SCA)
. It is often helpful when
considering the existence of consensus between two parties to
look
at their external manifestations to determine whether or not they
were actually in agreement. Needless to state that if they
were,
there was an agreement. If not, was one party reasonably entitled to
assume, from the words or actions of the other, that
they were truly
in agreement? If yes, agreement will be deemed to have been present.
If not, there was no agreement. See,
Christies
Law of Contract in South Africa, GB Bradfield, 7
th
Edition, paragraph 2.4.2 (c) and Garden Cities Incorporated v
Northpine Islamic Society
1999
(2) SA 268
(C).
ANALYSIS
EXISTENCE OF VERBAL
OR TACIT AGREEMENT
[12]
The starting point here is the letter of 1 June 2015 addressed to
York Timbers by Bosbok. The
letter notifies York Timbers that Bosbok
would, with effect from 1 July 2015, increase the rate at which it
harvests and transports
wood. York Timbers did not until 28 July 2015
reply to that letter. That said, it is common cause that the parties
held meetings
in particular, on the last Friday of June 2015 during
which Bosbok was expressly advised that the proposed rates were not
acceptable.
Scheepers agreed during his testimony in court that Van
Zyl concluded the meeting by stating that they would engage each
other
once again on the matter.
[13]
Bosbok argues that subsequent to that meeting York Timbers through
its representative, Mr Potgieter
(“Potgieter”), proceeded
to place orders as it did previously. The conduct of York Timbers
placing orders following
the meeting the parties had, constitutes
outward manifestations of the existence of an agreement reached at
the meeting. This assertion,
however, comes head to head with the
admission by Scheepers that Van Zyl concluded the meeting of the last
Friday of June 2015
by stating that they would talk further on the
subject subsequently.
[14]
Besides and as pointed out by York Timber, no case of quasi mutual
assent is made in the papers
of Bosbok. The orders were placed by
York Timbers’ employee, Potgieters. Scheepers admitted in his
evidence that Potgieter
would not have had the authority to bind York
Timbers in any agreement that might have ensued between the parties.
It is therefore
safe to surmise that Potgieter’s placement of
the orders could not have been understood to confirm the presence of
a tacit
agreement between the parties in circumstances where he
lacked authority to bind York Timbers.
[15]
In fact, the letter of 28 July 2015 addressed to Bosbok by York
Timbers puts the matter to rest
as it clarifies York Timbers’
position on the matter. Firstly, it confirms that the parties held
numerous meetings between
1 June and 28 July 2015. Secondly, that the
parties’ agreement of 10 February 2011 had come to an end on 30
June 2015. Thirdly,
that since it was not renewed, it was operating
as a month- to-month contract terminable on a 30-day notice by either
party as
set out in Clause 8.3 of the agreement. During his
testimony, Scheepers admitted that, until the letter of 28 July 2015,
he had
been under the impression that his proposed rates of 1 June
2015 had been accepted.
[16]
Scheepers’ admission is devastating to his case of a verbal or
tacit agreement having been
reached between the parties because it
validates the contention that there was no consensus. The letter of
30 July 2015 from Bosbok
to York Timbers, insisting on the 1 June
2015 rates, leaves one staggered because it constitutes a unilateral
implementation of
the rates. That this was indeed a unilateral
execution of the rates was confirmed during Scheepers’
testimony in court and
in the letter of Bosbok to York Timbers dated
1 September 2015.
[17]
It is noteworthy that Scheepers testified that previously the rates
were negotiated and confirmed
in writing. For some strange reason,
Bosbok would have this Court believe that the unilateral
implementation of the rates, which
is clearly not the result of a
negotiated process and is a departure from an established practice
between the parties ought to
be accepted as verbal or tacit
agreement. The position must be that lack of the external
manifestations of the parties exhibiting
consensus represents proof
that there was no such agreement. As such, no verbal or tacit
agreement came into existence.
[18]
What is the significance of the finding that Bosbok has failed to
show the existence of a verbal
or tacit agreement between the
parties? The answer must be that the parties are forced to revert to
the agreement of 10 February
2011 for guidance on what governed their
relationship post termination of that agreement on 30 June 2015. The
finding of this Court
though means that I cannot visit the agreement
of 10 February 2011 and in any event neither party has asked that I
do.
DOES
THE CASE MADE BY BOSBOK WEIGH AGAINST THE GRANTING OF ABSOLUTION
[19]
What is required to be examined here is whether or not on the
evidence adduced by Bosbok at this
juncture there is evidence upon
which a Court, applying its mind reasonably to such evidence, ‘could
or might’ and
not should, nor ought to’ find for the
plaintiff were the matter to proceed to finality. A court must not be
tempted to assess
the matter on the basis of what would usually be
expected at the conclusion of the cases of both parties. See, the
Claude Nion
Lights (SA) case above. This means that at the closure of
its case, as is the case in this instance, evidence concerning all
the
elements of the claim ought to have been established. It is in
this sense that a party will be said to have established a prima
facie case.
[20]
Bosbok has alleged a verbal or a tacit agreement having been entered
into between it and York
Timbers. However, the evidence presented
before court is hostile to that allegation because firstly, Scheepers
conceded that there
was no verbal agreement and as a matter of fact,
there is no support of such an approach from the documentary evidence
before court.
Secondly, there is no evidence to sustain the
allegation of a tacit agreement once Scheepers has acknowledged that
Potgieters would
not have had the authority to bind York Timber in
such agreement by the orders he placed.
[21]
I am mindful that courts ought to be circumspect and tight-fisted in
granting absolution. I am
also acutely conscious that absolution
should not be refused especially in those instances where the
interests of justice so warrant.
Bosbok has not proved what it has
alleged in its papers. The question is why should York Timbers
continue to incur further legal
costs which it might not recover in
whole should it be successful? Bosbok has clearly made a mistake by
thinking that there was
agreement where there was none. Why should
the case be protracted when it could be ended here.
[22]
The evidence that Scheepers has levied will not change even if the
case were to be allowed to
proceed to the end. I am aware that a
version of certain witnesses has been put to Scheepers and that
perhaps it is appropriate
that those witnesses be called to take the
stand so that their version can be tested. That would be proper if
the evidence established
all the elements that pertain to the claim.
It is evident that no consensus was reached and that should be the
end of the road.
INTERPRETATION OF
CLAUSE 8.3
[23]
In consequence of the finding above, it will be superfluous to
proceed to interpret Clause 8.3.
This is for two reasons, which are
firstly, the case of Bosbok has collapsed of attempting to prove the
verbal or tacit agreement.
Secondly, I cannot proceed to
interpretation when the first hurdle has not been overcome. In the
circumstances the application
must succeed and I make the following
order:
1.
Absolution from the
instance is granted with costs.
B A MASHILE
JUDGE OF THE HIGH
COURT OF SOUTH AFRICA
MPUMALANGA DIVISION,
MBOMBELA
This judgment was
handed down electronically by circulation to the parties and/or
parties’ representatives by email. The date
and time for
hand-down is deemed to be 17 January 2022 at 10:00.
APPEARANCES:
Counsel for the
Plaintiff:
Adv C Richard
Instructed
by:
DR TC Botha ATTORNEYS
C/O Du Toit - Smuts &
Partners
Counsel for the
Defendant:
Adv R Raubenheimer
Instructed
by:
Seymore Du Toit
& Basson Inc.
Date of
Judgment:
17 January 2022