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[2021] ZAGPJHC 427
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James B Productions (Pty) Ltd and Others v Oxygen Media (Pty) Ltd (22511/2020) [2021] ZAGPJHC 427 (30 August 2021)
REPUBLIC OF SOUTH
AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA,
GAUTENG LOCAL
DIVISION, JOHANNESBURG
CASE NO: 22511/2020
REPORTABLE:
NO
OF
INTEREST TO OTHER JUDGES: NO
30 August 2021
In the matter between:
JAMES
B PRODUCTIONS (PTY)
LTD
1
ST
Appellant
RIAAN
MANSER
2
ND
Appellant
VASTI
MANSER
3
RD
Appellant
and
OXYGEN
MEDIA (PTY)
LTD
Respondent
(This judgment is
handed down electronically by circulation to the parties’ legal
representatives by email and by uploading
it to the electronic file
of this matter on CaseLines. The date for hand-down is deemed to be
30 August 2021.)
JUDGMENT
MIA, J
[1]
This matter came before the urgent court, where the application was
dismissed with
costs. The reasons were handed down on 9 February
2021. The appellant brought an application for leave to appeal
against the whole
of the judgment and order, including the order for
costs. The respondent opposed the application for leave to appeal.
[2]
The applicant appealed the judgment on the following grounds:
“
1. The learned
Judge made the fundamental error in failing to find that there was an
enforceable agreement between the parties in
terms whereof the
respondent had to deliver the content in accordance with the terms
and conditions as set out in the Showmax agreements.
Pertinently the
learned Judge failed to realize the significance of the fact that the
respondent failed, in its opposing affidavit,
to respond to or
address the applicants’ averments in paragraph 54 to 59 of its
founding affidavit, which deals specifically
with the agreement
between the parties.
2. The court did not take
cogniscance of the fact that the respondent accepted these terms and
conditions of the agreement when
it reached its finding.
3 The respondent failed
to deal with crucial averments in the application which constituted
an admission of the contents of the
applicants averments,
alternatively it constituted a bare denial, with the result that the
applicants averments should have been
accepted.
4. The court thus failed
also to have regard to the terms of the agreement between the parties
which determined that the respondent
would receive 35% of the license
amount, 30 (thirty) days after delivery of the content, and that the
agreement did not provide
for any cost related to delivery of the
content.
5. The learned Judge
further failed to take cognisance of the fact that Applicant
concluded the agreements with Showmax based on
the Respondent's
assurance that they would in fact deliver the content on those terms.
In the premises the Respondent is in any
event estopped from denying
the terms.
6. The court erred
finding that there was a factual dispute between the parties whereas,
on a proper conspectus of the papers there
was no serious,
bona
fide
factual dispute which would have prevented the applicants
from obtaining the relief that it sought.
7. The court further
erred in her finding that the applicants had caused its own urgency,
when in fact it was evident from the papers
that applicants had been
compelled to launch the application on an urgent basis due to the
fact that delivery of the content was
due to be screened in the
immediate future and that applicants were entitled to specific
performance, which would otherwise result
in irreparable harm being
suffered by the applicants. The urgency of the delivery and the
consequences of failure to perform same
was fully canvassed in the
applicant’s papers.
8. In the process of
finding that there had been an enforceable agreement in place between
the parties the Court took into account
irrelevant aspects, such as
the following:
8.1 The court found that
the proportions of remuneration were unfair, and because of the
unfairness of the deal, the respondent
did not have to carry the cost
to deliver the content.
8.2 The court found that
the applicant could not expect the respondent to deliver the content
when the remuneration the respondent
would get for delivery was
disproportionate to the importance of their obligation to deliver
8.3 That the respondent's
remuneration for the delivery was disproportionate.
- The "fairness' of
the agreed contractual terms was with respect not a relevant concern,
and ought not to have played any
part in the court’s decision
on the matter.
9. The court ought to
have found that the respondent's obligation to deliver the content
originated from their agreement with the
applicants and that delivery
was in no way contingent on the proportionality of the respondent's
share in the proceeds.
10. Consequent upon the
aforementioned, the court erred further by making a cost order
against the applicants.
[3]
Mr Loots and Ms Manser appeared for the appellants. The court was
informed that counsel
briefed for the respondent had a personal
matter that had just arisen that morning and could not appear. Ms
Nyachowe, a candidate
attorney at Nyachowe attorneys, was requested
to observe the proceedings. She requested that the court regard the
heads of argument
that had been filed on behalf of the respondent.
[4]
Mr Loots proceeded to address the court first on the heads of
argument filed on behalf
of the respondents to address three points
in limine
which the respondent had raised. The first point
raised by the respondent was whether the issue was moot or not given
the time
frame raised by the applicant in the urgent application. The
respondents contended that the applicants’ application in the
urgent court was to deliver materials by a particular date. The time
for delivery of the material had passed; consequently, the
issue was
moot. Mr Loots argued to the contrary. He submitted that it was
incumbent on counsel to bring to the court's attention
whether an
issue was moot or not when arguing the matter. The present matter was
guided by
sections 16
and
17
of the
Superior Courts Act 10 of 2013
.
[5]
He continued to amplify the above point that it was incumbent upon an
applicant to
inform the court whether the matter had become moot,
failing which the matter proceeded on the basis on which it was
before the
court. He confirmed that he enquired from the appellants
whether the matter had become moot. It appeared that due to the
ongoing
litigation, Showmax is waiting for the outcome and have not
as yet cancelled the agreement. Showmax reserved their right to do so
at any moment and could cancel at any stage. He continued that it was
advanced in the urgent hearing that if the delivery did not
take
place, Showmax reserved the right to cancel. Showmax had not
cancelled as yet. If the court granted leave to appeal and the
issue
became moot due to the cancellation by Showmax, it would be incumbent
upon the appellant to advise the court.
[6]
The second point raised
in limine
was the appealability of the
order. This was based on the application being for final relief. The
court dismissed the application
on the merits as well as on urgency.
In their heads of argument, the respondent submitted that the
appellant could apply for rescission
of the order given the order
granted was final relief. Mr Loots argued that this was not an option
the appellants could pursue
as the court found no consensus between
the parties. He continued that rescission would have been an option
only in the absence
of one of the parties or if an order had been
improperly sought or granted. Thus neither option for rescission
applied in the present
case. The appropriate relief was an
application for leave to appeal.
[7]
In addressing the appeal's merits, Mr Loots first submitted that he
accepted that
the test was different and that the standard was
higher. He, however, argued that the word “would” was
inserted to
avoid a flood of appeals and relied on the judgment of
the court in
Valley of the Kings Thaba Motswere (Pty) Ltd VAL
Mayya Internationa
l 2016 JDR 2120 (ECG) to support a lower
standard. He argued that it provided a helpful guide in implementing
the current test in
respect of applications for leave to appeal where
the court stated:
"There can be little
doubt that the use of the word "would" in
section 17
(1)(a)(i) of the
Superior Courts Act implies
that the test for leave
to appeal is now more onerous. The intention clearly being to avoid
our courts of appeal being flooded
with frivolous appeals that are
doomed to fail. I am, however, of the respectful view that the
"measure of certainty"
standard propounded by the learned
judge in
Mont Chevaux Trust
(supra) may be placing the bar too
high. It would, in my respectful view, be unreasonably onerous to
require an applicant for leave
to appeal to convince a judge - who
invariably would have provided extensive reasons for his or her
findings and conclusions -
that there is a "measure of
certainty" that another court will upset those findings. It
seems to me that a contextual
construction of the phrase "reasonable
prospect of success" still requires of the judge, whose judgment
is sought to
be appealed against, to consider, objectively and
dispassionately, whether there are reasonable prospects that another
court may
well find merit in arguments advanced by the losing party.
I shall accordingly consider the arguments advanced on behalf of the
applicants on this basis."
[8]
Mr Loots submitted by way of illustration of the above that the
respondent’s
answering affidavit failed to advance a case that
answered the applicants’ case made out in the founding
affidavit. He relied
on a culmination of the emails between the
parties. He referred to Annexure VM15
[1]
and VM16
[2]
. VM15 reminds the
respondent of the terms of the agreement and attaches the terms and
conditions to the email. In VM16, the respondent
confirms that the
agreement and terms are clear and that they can proceed. Ms Fuller
Campbell then requests Ms Manser to prepare
the draft clearance
letters for both projects, after which the respondents would make any
adjustments required.
[9]
It is evident from both VM15 and VM16 that whilst Showmax requested
uploading via
a portal, there was a concern that this would prove to
be expensive, and load shedding was a concern. The applicant proposed
delivery
via hard drive as an inexpensive route, after which the hard
drive would be returned to the respondents. The proposal of delivery
by the hard drive was made as no provision was made for delivery
costs. The applicants also indicated the reduced amount payable
to
the respondents given the programme HTA not being screened in the
diaspora territories. Ms Fuller Campbell accepted these terms
in
VM16.
[10]
Mr Loots thus argued that the respondents admitted the agreement in
paragraph 13 of the answering
affidavit at paragraphs 25-28, which
refer to the salient terms of the contract. This confirmed the
respondents received a copy
of the terms of the contract. Ms Fuller
Campbell admitted that it was forwarded to her. She indicated she
would sign a license
with Showmax. Mr Loots argued what was presented
to the court during the urgent hearing was that they had never
received the terms
and agreement beforehand. He continued that
Annexure VM 4 showed that they were provided with the standard terms
of the agreement.
This was further reinforced by the communication in
VM 15 and VM16. In VM5 the amounts were indicated as per the
proportion of
payment. Ms Fuller Campbell did not contest the
proportional split. There were two programmes not permitted to be
aired. This affected
the amount finally received.
[11]
Mr Loots argued that in none of the correspondence leading up to VM
16 was the proportion of
the split or the amount payable in terms of
the agreement placed in dispute. There was no request for or an
indication there was
a requirement of upfront payment for delivery.
The terms of the agreement were always that Showmax paid within 30
days of delivery.
They did not indicate they were unhappy with the
split. If they were, it was not clear why they sent an invoice
without indicating
that.
[12]
Mr Loots submitted that the negotiations deteriorated after the
respondents attempted to obtain
payment before delivery. The
respondents attempt to repudiate the agreement were not accepted by
the applicants who never intended
not to pay the respondents. It was
merely a case of payment in terms of the agreement. The applicant
thus sought to enforce the
agreement by bringing an application in
the urgent court as they stood to lose the benefits of the agreement
they negotiated with
Showmax.
[13]
In interpreting the agreement between the parties the applicant
relied on
Unica Iron and Steel (Pty) Ltd and Another v Mirchandani
2016 (2) SA 307
(SCA) at para 21 and 22. This requires that the court
ascertain the intent of the contracting parties by considering:
13.1 the words used
by the parties in the relevant clause;
13.2 the contract
as a whole;
13.3 the factual
matrix of (or context in which) the contract was concluded, whether
or not there is ambiguity in the meaning
of the words used.
[14]
In
Natal Joint Municipality Pension Fund v Endumeni Municipality
2012(4) SA 593 (SCA) the court stated at para [18]
"Over the last
century there have been significant developments in the law relating
to the interpretation documents, both in
this country and in others
that follow similar rules to our own. It is unnecessary to add unduly
to the burden of annotations by
trawling through the case law on the
construction of documents in order to trace those developments. The
relevant authorities are
collected and summarised in
Bastian
Financial Services (Pty) Ltd v General Hendrik Schoeman Primary
School.
The present state of the law can be expressed as follows:
Interpretation is the process of attributing meaning to the words
used
in a document, be it legislation, some other statutory
instrument, or contract, having regard to the context provided 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. Whatever the nature of the document, consideration
must be given to the language used in the light of the ordinary
rules
of grammar and syntax the context in which the provision appears the
apparent purpose to which it is directed and the material
known to
those responsible for its production. Where more than one meaning is
possible each possibility must be weighed in the
light of all these
factors. The process is objective, not subjective. A sensible meaning
is to be preferred to one that leads to
insensible or unbusinesslike
results or undermines the apparent purpose of the document. Judges
must be alert to, and guard against,
the temptation to substitute
what they regard as reasonable, sensible or businesslike for the
words actually used. To do so in
regard to a statute or statutory
instrument is to cross the divide between interpretation and
legislation; in a contractual context
it is to make a contract for
the parties other than the one they in fact made. The 'inevitable
point of departure is the language
of the provision itself, read in
context and having regard to the purpose of the provision and the
background to the preparation
and production of the document."
[15]
In considering the above principles and applying them to the
agreement and the record, it is
apparent that there is merit in Mr
Loot’s submission that VM15 and 16 confirmed the agreement.
Furthermore, the remaining
annexures support the conclusion of the
agreement and provide the contextual background that supports the
conclusion of the agreement
which culminated in in VM 15 and VM 16.
VM 17 served merely to repudiate the agreement to secure to the
respondents a benefit after
the agreement had been reached which the
agreement had not provided.
[16]
In applying the rule in
Plascon-Evans v Van Riebeeck Paints (Pty)
Ltd
[1984] ZASCA 51
;
1984 (3) SA 623
(A), “
where there is a dispute as to
the facts a final interdict should only be granted in notice of
motion proceedings if the facts as
stated by the respondents together
with the admitted facts in the applicant’s affidavits justify
such an order…where
it is clear that facts, though not
formally admitted, cannot be denied, they must be regarded as
admitted”,
the respondents have admitted the agreement and
were ready to proceed on the basis thereof until the communication in
VM17.
[17]
Mr Loots addressed the court on the point raised in the respondents’
heads of argument
relying on the case of
Afrox Health Bpk v
Strydom
2002 (6) SA 21(SCA).
He submitted that the reference to
the case by the respondents was misplaced as it referred to an
imbalance in bargaining power
between two parties. He submitted that
there was no imbalance of bargaining power between the present
parties as they were equal
as opposed to the
Afrox
case above,
which was distinguishable as there was an imbalance of power between
the company and an individual. In support of his
submission, Mr Loots
referred
Barkhuisen v Napier
[2007] ZACC 5
;
2007 (5) SA 323
at para
[70]
and
argued that the parties in the present matter were bound by the
contract they negotiated. In
Barkhuisen
above, the Court
endorsed the principle of ‘
pacta sunt servanda’
.
Mr Loots submitted that the language of the emails evidenced a
protracted negotiation but pointed to an agreement. Thus he submitted
that
Afrox
did not apply to the present case and was
distinguishable because there was equitable bargaining power.
[18]
In the case of
Wightman t/a JW Construction v Headfour (Pty) Ltd
and Another
[2008] ZASCA 6
;
2008 (3) SA 371
(SCA), the Court stated:
“
A real, genuine
and bona fide dispute of fact can exist only where the court is
satisfied the party who purports to raise the dispute
has in his
affidavit seriously and unambiguously addressed the fact said to be
disputed.”
Given
the respondent’s admission, as argued by Mr Loots, there is no
genuine dispute raised by the respondents. The agreement
was not
clear when the matter was argued in the urgent court. On
reconsidering the papers, the submissions made, it is evident
that
the respondents did not raise relevant disputes that prevented the
granting of the relief requested by the applicant. It follows
that
another court would thus come to a different conclusion to the
decision reached by this court on the merits and the question
of
urgency. This is so as the applicants and respondents were aware of
the agreement with Showmax and the time frames. The negotiation
before the launching of the application did not detract from the
urgency.
[3]
[19]
In considering the submission and the heads of argument submitted by
both parties, the applicant
made out a case that an agreement was
reached based on the communication in annexures VM15 and VM16. This
court is thus satisfied
that another court would reasonably come to a
different conclusion that an agreement was reached. Consequently, it
is appropriate
that leave to appeal be granted to a Full Bench of
this Division. It follows furthermore that the costs of this
application will
be costs in the appeal.
ORDER
[20]
For the reasons above, I grant the following order:
1.
The applicants are granted leave to appeal to the Full Bench of this
Division.
2.
Cost of this application will be costs in the appeal
S C MIA
JUDGE OF THE HIGH
COURT OF SOUTH AFRICA
GAUTENG DIVISION,
JOHANNESBURG
Appearances:
On
behalf of the appellant
:
Adv H Loots
Instructed
by
: Malan
Lourens Viljoen Inc
leon@mlalaw.co.za
On behalf of the
respondents : Daphne
Nyachowe
(observing
for Nyachowe Attorneys)
Instructed
by
: Nyachowe Attorneys
pnyachowe@pnn-attorneys.co.za
Date of hearing
:
7 June 2021
Date of
judgment
:
30 August 2021
[1]
Record,
Caselines
001-86
[2]
Record,
Caseline
001-87
[3]
Nelson
Mandela Metropolitan Municipality and Others v Greyvenouw and Others
2004(2) SA 81 (SE); South African Informal Traders
Forum and Others
v City of Johannesburg and Others 2014(4) SA 371 (CC)at [37]