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[2021] ZASCA 104
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Tshepe and Another v Rustia Feed (Pty) Ltd (90/2020) [2021] ZASCA 104 (23 July 2021)
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THE SUPREME COURT OF
APPEAL OF SOUTH AFRICA
JUDGMENT
Not Reportable
Case No: 90/2020
In
the matter between:
ELIAS
THAPELO
TSHEPE
FIRST APPLICANT
VICTORIA
TSHEPE
SECOND APPLICANT
and
RUSTIA
FEED (PTY)
LTD
RESPONDENT
Neutral
citation:
Tshepe and Another v
Rustia Feed (Pty) Ltd
(Case no 90/2020)
[2021] ZASCA 104
(23 June 2021)
Coram:
PETSE DP, MBHA and ZONDI JJA and KGOELE and
PHATSHOANE AJJA
Heard
:
17 May 2021
Delivered
:
This judgment was handed down electronically by circulation to the
parties' legal representatives by email. It has been published
on the
Supreme Court of Appeal website and released to SAFLII. The date and
time for hand-down is deemed to be 23 June 2021.
Summary:
Contract – suretyship clause embodied in credit agreement –
application for special leave to appeal
to the SCA in terms of
s 17(2)
(d)
of the
Superior Courts Act 10 of 2013
– Jurisdiction –
whether the applicants validly consented in their personal capacity
to the increased monetary jurisdiction
of the magistrates' court in
terms of
s 45
of the
Magistrates' Courts Act 32 of 1944
–
whether the respondent had a duty to draw the applicants' attention
to the existence of the suretyship clause – whether
the
applicants were, on the basis of
iustus
error
, not bound by the terms of the
suretyship as embodied in the credit application – the
applicants validly consented to the
increased monetary jurisdiction
of the magistrates' court - the duty to inform the applicants of the
existence of the suretyship
clause did not arise -
iustus
error
defence not sustainable on the
facts – no prospects of success on appeal – the
application dismissed.
ORDER
On
appeal from:
North West Division of the
High Court, Mahikeng (Matlapeng AJ with Gura J concurring, sitting as
court of appeal):
1
The application for condonation of
the late filing of the application for special leave to appeal is
granted with no order as to
costs.
2
The application for special leave to
appeal is dismissed with costs.
JUDGMENT
Phatshoane
AJA (Mbha and Zondi JJA and Kgoele AJA concurring):
[1]
This is an application for special leave to appeal against the
decision of the North
West Division of the High Court, Mahikeng (the
high court), dismissing with costs the appeal of the applicants, Mr
Elias
Thapelo Tshepe
and Ms Sonia Victoria Tshepe (the Tshepes)
,
against the judgment of the magistrates' court for the district of
Rustenburg granted in favour of the respondent, Rustia Feed
(Pty) Ltd
(Rustia Feed). The application was referred for oral argument in
terms of s 17(2)
(d)
of
the Superior Act 10 of 2013 and, if granted, the determination
of the appeal itself. The Tshepes must show, in addition
to the
ordinary requirement of reasonable prospects of success, that there
are special circumstances which merit a further appeal
to this Court.
[2]
The application for special leave is accompanied by an application
seeking
condonation
for its late filing. It is trite that condonation
cannot
be had for the mere asking
.
A party seeking the court's indulgence must establish good cause. The
judgment of the high court was handed down on 15 November
2019. The
application for special leave ought to have been filed
with
the registrar
by
no later than 13 December 2019 that is, within one month of
the
decision sought to be appealed against.
[1]
It was however lodged on 06 February 2020, some 22 days out of the
time allowed by the rules.
[2]
The
Tshepes' correspondent firm of attorneys received the judgment on the
date that it was handed down and timeously transmitted
it by e-mail
to the Tshepes' attorneys. However, due to power outages and
intermittent server shutdowns, which affected transmission
of e-mails
via the internet, the Tshepes' attorneys had been unaware that the
judgment was delivered until 13 January 2020, when
their repaired
server was installed. The
period
of delay is not inordinate and
,
in my view, has been sufficiently explained. In the circumstances,
the
interests of justice dictate that condonation should be granted, more
so that no prejudice has been occasioned to Rustia Feed.
[3]
At stake in this appeal
is the
question whether the parties to the present litigation validly
consented to the increased monetary jurisdiction of the magistrates'
court in terms of s 45(1) of the Magistrates' Courts Act 32 of 1944
(the Act). The other area of the dispute concerns the validity
of a
deed of suretyship concluded by
the
Tshepes in terms of which they allegedly bound themselves as sureties
and co-principal debtors
in
solidum
with Bonolo Farms (Pty) Ltd (Bonolo Farms), the principal debtor, in
favour of Rustia Feed,
a feed miller
that supplies wide ranging animal feed
.
The Tshepes contend that they are entitled to resile from the deed on
the basis of
iustus
error
.
[4]
Mr Tshepe is a chemical engineer with a Master's degree in business
leadership whereas
Ms Tshepe is a former primary school educator with
a diploma in teaching. They are married to each other in community of
property.
In April 2003, they signed an undated standard credit
application form, which
embodied the
suretyship clause,
supplied by Rustia Feed, for the purchase and supply of chicken feed
in their capacity as the representatives of Bonolo Farms.
The question is whether they also assented to this form in their
personal capacity as sureties. T
he
salient clauses of the credit application are couched in these terms:
'1
I/We the undersigned E.T. Tshepe, V
Tshepe
confirm
the correctness of the information set out in paragraphs 1-13 hereof.
. . .
3
Guarantee that in the event of
the APPLICANT being a company,
partnership or close corporation I am authorised to bind the company,
partnership or close corporation
herein.
4
Guarantee that in the event of
the APPLICANT being a company,
partnership or close corporation that the amount will be settled
according to [the] terms hereof
and in default of any payment by the
company, partnership or close corporation I bind myself as surety and
co-principal debtor
in solidum with the company, partnership or close
corporation in favour of the supplier.
. . .
7
Agree to the jurisdiction of any magistrates' court which has
jurisdiction
in terms of section 28 of the Magistrates' Court Act 32
of 1944 as amended to settle any claim, resulting from supplying
goods,
which the supplier may lay against the applicant at any time,
and which would normally be outside the jurisdiction of the
magistrates'
court because of the amount of money involved in the
claim. Nevertheless the supplier has the right to instigate any such
legal
procedure in any other competent court which would otherwise
have jurisdiction.
. . .
13
Acknowledge that on his acceptance by the supplier an agreement,
embodying the terms
set out in these paragraphs, will come into
existence.'
[5]
The entire credit application, incorporating the suretyship,
comprises only two pages.
The first page is a credit application
form. It is headed 'RUSTIA FEED PTY LTD' and directly under this
caption the words 'APPLICATION
FOR CREDIT' appear.
Mr
Paul Edmond Ottermann (Mr Ottermann), a director of Rustia Feed,
inserted the name of the principal
debtor 'Bonolo Farms (Pty) Ltd' in the credit form in manuscript.
According to Mr Ottermann,
Mr Tshepe did not have the full
particulars of Bonolo Farms with him at that stage. Therefore, he
handed over the credit application
form to him to complete at home
and, once completed, to return it. The second page of the credit
application is divided into two
parts and embodies
the conditions of sale consisting of
some 13 perspicuous clauses.
[6]
Two to three days later, Mr Tshepe returned the credit application
form to Mr Ottermann.
The particulars of Bonolo Farms and those of
its two listed directors, the Tshepes, were recorded in manuscript on
the first page
of the credit application. Although Mr Tshepe had
signed the agreement, Ms Tshepe had not done so. As a result, Mr
Ottermann requested
him to ask Ms Tshepe to sign the credit agreement
which he once more took home. His wife returned the form a few days
later bearing
both Tshepes' signatures and the word 'Director'
adjacent thereto. Below their signatures the following text appears:
'ACCEPTED
BY: RUSTIA FEED (PTY) LTD'. Rustia Feed did not sign the
credit agreement because it had, upon its receipt, been forwarded to
its
administration for purposes of opening a trading account for
Bonolo Farms. Mr Ottermann's evidence on how the credit agreement
came into being was not challenged during cross-examination neither
was there any different version put to him nor that the Tshepes
had
not read the agreement.
[7]
The Tshepes' version on how they concluded the credit agreement
differs in some respects
from the evidence presented by Mr Ottermann.
I shall, in due course, deal with
the divergence. It suffices for now to state that Mr Tshepe, on the
one hand, claimed that Bonolo Farms did not need any credit
facilities at that stage but merely wished to open a trading account
with Rustia Feed. He contends that Mr Ottermann did not draw
his
attention to the deed of suretyship which was embodied in the credit
application form. He was still new in business and at
a loss to
conceive what a deed of suretyship looked like. He merely completed
his particulars on the form and appended his signature.
Ms Tshepe, on
the other hand, said that Rustia Feed summoned her to sign the credit
application form because she was married to
Mr Tshepe in community of
property. When they signed the credit application form, it did not
strike the Tshepes that they bound
themselves as sureties.
[8]
Rustia Feed subsequently complied with its contractual obligation in
that it delivered
chicken feed to Bonolo Farms from approximately
June 2003 to February 2004. Bonolo Farms failed to effect timeous
payments of the
amounts that, from time to time, became due and
payable to Rustia Feed in term
s
of the credit agreement and fell into arrears. During
June
2005, Rustia Feed instituted action against Bonolo Farms in the North
Gauteng High Court, Pretoria, for the payment of R700 275.23,
inclusive of interest, for goods sold and delivered. In the course of
this litigation, the parties referred their dispute to arbitration
which culminated in an arbitration award being made on 21 January
2010 in favour of Rustia Feed against Bonolo Farms for the payment
of
R992 403 plus interest. On 25 February 2011, the North Gauteng
High Court made this arbitration award an order of court.
Rustia Feed
demanded payment from Bonolo Farms in satisfaction of the court order
however, Bonolo Farms failed to meet the demand.
Hence Rustia Feed
turned to the Tshepes for payment.
[9]
On 03 April 2011, Rustia Feed issued summons against the Tshepes in
the magistrates'
court, Rustenburg, founded
upon
the deed of suretyship executed in April 2003. Rustia Feed
alleged in the summons that the Tshepes had agreed to be bound
as
sureties and co-principal debtors
in
solidium
with Bonolo Farms and that they had consented to the jurisdiction of
the magistrates' court.
[10]
The Tshepes defended the action. To paraphrase their plea: they
claimed,
inter alia
,
that Rustia Feed did not countersign the credit application to
signify its acceptance of the terms, consequently, the deed of
suretyship never came into existence; that Rustia Feed failed to draw
their attention to the suretyship clause 'hidden' in the
conditions
of sale; that it was not obvious to them that the impugned document
embodied the deed of suretyship because its heading
or the foot of
its page bore no indication that they bound themselves as sureties;
that they would not have given their assent
had they been aware of
the caveat and never intended to personally bind themselves for
Bonolo Farm's obligations towards Rustia
Feed; that they appended
their signatures to the conditions of sale on behalf of Bonolo Farms
whilst labouring under a misapprehension,
which had been caused by
Rustia Feed, as to the real effect of the document; and lastly, that
Rustia Feed knew of their ignorance
and were therefore misled.
[11]
The magistrate remarked, in
obiter
,
that the action had been entertained in the magistrates' court
because its jurisdiction was founded upon the credit agreement.
The
Tshepes' defence did not find favour with her. She held that failure
by Rustia Feed to countersign the credit application did
not entail
that the agreement was void because this was not an
essentialia
of the deed. She further found that Rustia Feed performed in terms of
the agreement which triggered the Tshepes' reciprocal obligation
to
make payment. She extensively dealt with material contradictions
apparent from Mr Tshepe's evidence, in respect of the events
leading
up to the signing of the credit application, and rejected his
evidence as false. She noted that Mr Tshepe was a well-versed
entrepreneur and was therefore unpersuaded that he had not read the
agreement which he kept for days before returning it to Rustia
Feed.
Accordingly, she held that Mr Tshepe had not been misled into signing
the credit application. In respect of Ms Tshepe, the
magistrate
reasoned that, she was bound by the terms of the deed by virtue of
her matrimonial regime. Consequently, she
entered
judgment against the Tshepes in favour of Rustia Feed for the payment
of R992 403 plus interest.
[12]
Aggrieved by this outcome, the Tshepes appealed to the high court.
The questions which arose for consideration
in the high court were,
mainly, whether the magistrates' court lacked monetary jurisdiction
to adjudicate the action and whether
the defence of
iustus
error
availed the Tshepes in respect of
the deed of suretyship. The high court found against the Tshepes on
both questions. Before us
it was contended, on behalf of the Tshepes,
that special circumstances existed that warranted the grant of
special leave to appeal
to this Court against the decision of the
high court essentially on two grounds. First, it was contended that
the Tshepes had not
consented in writing to the monetary jurisdiction
of the magistrates' court in terms of s 45(1) of the Act. Second,
that the Tshepes
were, on the basis of
iustus
error
, not bound by the terms of the
suretyship as embodied in the credit application.
The jurisdiction of
the magistrates' court.
[13]
The monetary jurisdiction of the magistrates' court was R100 000
at the time the summons was issued
against the Tshepes. This
notwithstanding, parties could in terms of s 45(1) of the Act consent
in writing to jurisdiction where
the amount claimed was in excess of
R100 000 subject to the limitation imposed by s 46 of the Act in
respect of the subject-matter.
Section 45(1), prior to its
substitution by s 3 of the Courts of Law Amendment Act 7 of 2017,
provided:
'
45 Jurisdiction
by consent of parties
(1)
Subject to the provisions of section
forty-six
,
the court shall have jurisdiction to determine any action or
proceeding otherwise beyond the jurisdiction, if the parties consent
in writing thereto: Provided that no court other than a court having
jurisdiction under section
twenty-eight
shall,
except where such consent is given specifically with reference to
particular proceedings already instituted or about
to be instituted
in such court, have jurisdiction in any such matter.'
[14]
The Tshepes argued that they appended their signatures to the credit
application in their capacity
as the representatives of Bonolo Farms
and not in their personal capacity. They further argued that clause 7
of the credit agreement
expressly restricts consent to jurisdiction
solely to claims against Bonolo Farm, as the applicant under the
credit agreement,
and not to the ostensible sureties. That they did
not pertinently raise the jurisdictional point in their plea, it was
argued,
did not bestow jurisdiction on a 'creature of statute'. Nor
did their alleged acquiescence or waiver have the effect of
conferring
jurisdiction on the magistrates' court. Thus, absent their
written consent in terms of s 45(1) of the Act, the magistrates'
court
lacked jurisdiction to entertain the action.
[15]
In
Makhanya
v University of Zululand
[3]
t
his
Court held:
'
Jurisdictional
challenges will be raised either by an exception or by a special
plea, depending on the grounds upon which the challenge
arises. There
will be some cases in which the jurisdiction of a court is dependent
upon the existence of a particular fact (often
called a
'jurisdictional fact'). Where the existence of that fact is
challenged it will usually be in a special plea, and
the matter
will proceed to a factual enquiry confined to that issue. In other
cases the existence or otherwise of jurisdiction
to consider the case
will appear from the particulars of claim and in those cases the
challenge will be raised by an exception.
In such cases a court that
considers the challenge might not even be aware of whether or not the
plaintiff intends raising any
defence at all to the claim. But
in both cases the issue must necessarily be disposed of first,
because upon it depends the
power of the court to make any further
orders.'
[16]
The contentions advanced by the Tshepes cannot be sustained as they
submitted to the jurisdiction of
the magistrates' court without
demur. Neither did they contest the jurisdiction of that court in
their plea. On the contrary, their
erstwhile counsel in the trial
court, conveyed to the trial magistrate that they were before the
magistrates' court on the basis
of s 45 of the Act because the
parties had agreed to the jurisdiction in the deed of suretyship.
Jurisdiction was called into question
for the first time on appeal
before the high court. Needless to say, f
ailure
by a defendant to take objection
in
initio litis
cannot amount to a consent to increased monetary jurisdiction under s
45(1), which requires such consent to be in writing.
[4]
[17]
The Tshepes obfuscated their defences, although not pertinently
raised in their plea, it was canvassed
before us that the credit
application did not show that the signatories signed in two
capacities, that is, in their representative
and personal capacity as
sureties. Though this argument is raised in the Tshepes' application
for special leave to demonstrate
that they had been misled, the
purported absence of the Tshepes' signature, in their personal
capacity, is also relevant under
this head and need not detain us. A
person
signing
a document in a representative capacity may nevertheless in the same
document expressly undertake some form of personal
liability. When
the signature comes at the end of a document you apply it to
everything referred to throughout the contract.
[5]
By
signing their respective names at the end of the credit application
and its conditions of sale the Tshepes entered into two distinct
agreements,
one
in which the creditor extended the credit facilities to the principal
debtor, Bonolo Farms, and a suretyship agreement between
the creditor
and the sureties. The
particulars
of each agreement are to be found in the entire document.
[6]
[18]
It is inconsequential that adjacent to their signatures the word
“Director” appears in
manuscript.
As
it turned out, during the trial, albeit Ms Tshepe is listed as a
director/member of Bonolo Farms on the credit application form,
she
was not. Her evidence was that she put the word “Director”
in manuscript adjacent to her signature because she
was told to do so
by an employee of Rustia Feed. Insofar as she was not a director she
could only have appended her signature to
the credit agreement in her
personal capacity thereby giving her assent to the deed of
suretyship. To hold that the Tshepes did
not sign the agreement as
sureties would be to elevate form over substance. The conclusion is
irresistible that they signed the
credit agreement in their
representative capacity on behalf of Bonolo Farms and in their
personal capacity as sureties.
[19]
In terms of clause 1 read with clause 7 of the credit agreement the
Tshepes expressly agreed to the
jurisdiction of any magistrates'
court which would be seized, in terms of s 28 of the Act, '
to
settle any claim, resulting from supplying goods, which the supplier
may lay against the applicant at any time.'
(My emphasis.). They now contend that the words '
which
the supplier may lay against the applicant'
limited consent to Bonolo Farms. Stated differently, the submission
is that the word '
applicant'
was
intended to exclude the consent of the Tshepes, in their personal
capacity, to the magistrate court's jurisdiction.
In
Natal
Joint Municipal Pension Fund v Endumeni Municipality,
[7]
in
summarising the current state of our law with regard to the
interpretation of documents, this court said:
'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.'
[20]
The
restrictive consideration of the words without regard to context has
to be avoided.
[8]
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 process no longer occurs
in stages
but is 'essentially one unitary exercise'.
[9]
[21]
Clause 1 of the condition of sale stipulates that 'I/ we the
undersigned ET Tshepe, V Tshepe, confirm
the correctness of the
information set out in paragraphs 1 to 13.' The 13 paragraphs have,
as it were, an effect or a bearing on
either of the two separate
agreements. The suretyship clause precedes clause 7. The words 'to
settle any claim' as appearing in
clause 7 do not exclude the
creditor's claim against the sureties. Seen in this context, consent
to jurisdiction cannot be said
to have applied exclusively to one
agreement. In my view, the use of the word 'applicant' in clause 7
appears to be a patent error
and ought not to be applied in a
regimented fashion. There is no rational basis upon which the
sureties could be said to have been
jettisoned from the application
of clause 7. Rustia Feed was alive that it was extending credit
facilities to a juristic person
and in order to protect its interest
it would make sense for it to require its representatives to provide
an undertaking by way
of a deed of suretyship that its debt would be
paid and that it would be entitled to enforce the credit agreement in
the magistrates'
court. In my view, the consent to jurisdiction
applied to Bonolo Farms as well as to the Tshepes in their personal
capacity. Such
a construction of the clause is compatible with the
agreement read as a whole.
[22]
In developing their argument the Tshepes contended that the lack of
written consent by Rustia Feed
itself, through its failure to sign
the credit application and to make the necessary jurisdictional
averments in its particulars
of claim, was fatal to the magistrate's
assumption of jurisdiction. This argument
is
put paid to by the clear language of s 45
of
the Act. Properly construed, the section does not provide that the
written consent be encapsulated in a separate written agreement
executed by both parties. The
dictum
of the Full Bench in
David
v Naggyah and Another,
[10]
referred
to by the high court in its judgment, commend itself to
me.
It was there held:
'
. . . [I]t has been contended that to confer jurisdiction in terms of
sec. 45 of the present Act it is necessary for there to
be put before
the court a formal agreement executed by both parties. But that is
not what sec 45 requires. It merely states that
the parties must
consent in writing; each party may separately consent and there need
be nothing in the form of an agreement between
them; it is not even
required that any such consent need be signed by either party. There
must be a writing or writings which constitute
proof that each of the
parties has consented to the jurisdiction. The consent cannot be a
matter of mere legal inference from acts
or conduct.'
[23]
Generally, a contract is founded on consensus. However, contractual
liability can also be incurred
in circumstances where there is no
real agreement between the parties but one of them is reasonably
entitled to assume from
the words or conduct of the other that
they were in agreement.
[11]
In
this case actual consensus cannot be said to have been lacking. There
was a written offer by the creditor; which contained consent
to
jurisdiction and had been accepted by principal debtor and the
sureties. Apart from this, Rustia Feed averred in the particulars
of
claim, that the magistrates' court had jurisdiction because the
Tshepes had consented thereto notwithstanding that the amount
claimed
exceeded the court's jurisdiction. Consistent with its consent,
Rustia Feed prayed for judgment against the Tshepes for
the payment
of the amount which is in excess of the court's jurisdiction. All of
this, in my view, adequately established Rustia
Feed's written
consent. In any event, it would be illogical for a creditor, which
had settled the terms of the agreement, to require
consent to
jurisdiction from the sureties when it had no intention to submit
itself to the same jurisdiction.
[24]
The ineluctable conclusion is that
the
magistrate was
seized with
jurisdiction. In light of this, it is not necessary to deal with the
residual question whether the Tshepes waived their
right to object to
the monetary jurisdiction or ought to be estopped. It is now left to
consider whether the defence of
iustus
error
was available to the Tshepes.
Iustus
error
defence
[25]
The gist of the Tshepes' argument is that they were blissfully
ignorant vicenarians and newcomers to
the business world.
Ex
facie
the credit application, they
contended that, no reference was made to the existence of the
suretyship. Rustia Feed therefore misled
them. They further argued
that the suretyship clause is inconspicuously recorded in fine print
and anything but eye-catching. Mr
Ottermann, it was submitted, failed
to draw their attention to the suretyship clause and they would not
have bound themselves had
they been alerted to it. They did not
expect that the deed of suretyship would be embodied in the credit
application and did not
notice it. Their mistake, they claimed, which
had been induced by Rustia Feed, would have misled any reasonable
person similarly
circumstanced.
[26]
As support for their argument that they were misled the Tshepes
relied on the decision of this Court
in
Brink
v Humphries and Jewell (Pty) Ltd.
[12]
In
deciding
whether a misrepresentation was made, all the relevant circumstances
must be taken into account and each case will depend
on its own
facts.
[13]
The decisive
question in a case such
as
the present was laid down in
Sonap
Petroleum (SA) (Pty) Ltd (formerly known as Sonarep (SA) (Pty) Ltd) v
Pappadogianis
[14]
as
follows:
'.
. . [D]id the party whose actual intention
did
not conform to
the common intention expressed, lead the other party, as a reasonable
man, to believe that his declared intention
represented his actual
intention? . . . To answer this question, a three-fold enquiry is
usually necessary, namely, firstly, was
there a misrepresentation as
to one party's intention; secondly, who made that representation; and
thirdly, was the last party
misled thereby? . . . The last question
postulates two possibilities: Was he actually misled and would a
reasonable man have been
misled?
Spes
Bona Bank Ltd v Portals Water Treatment South Africa (Pty) Ltd
1983
(1) SA 978
(A) at 984D - H, 985G - H.'
[27]
There is nothing in the evidence presented by Rustia Feed which
posits that its account, on how the
credit agreement was executed,
was untruthful.
Mr
Ottermann readily conceded that he could not recall whether he drew
the Tshepes' attention to the suretyship clause. His evidence
to the
effect that he gave Mr Tshepe the credit application form to take
home and return it signed, was not challenged in cross- examination.
On the contrary, it
was placed on
record that his version on this score was consistent with the
Tshepes'.
[28]
Quite remarkably, the Tshepes gave an antithetical account. In
particular, Mr Tshepe's version on how
he came to execute the deed
bristles with discrepancies which bring his credibility into
question. He disavowed numerous aspects
of his evidence-in-chief
during cross-examination and vacillated between different versions.
He prevaricated when confronted with
direct questions on how the deed
was executed and went off on a tangent in respect of issues that are
not relevant to the case.
To demonstrate these glaring incongruities
a few examples are uppermost:
(a)
He denied that Bonolo Farms ever purchased feed from Rustia Feed on
credit or knew that Bonolo Farms applied for credit. This
was at odds
with the plea and at least two affidavits that he deposed to
attesting to the contrary.
[15]
He was confronted with these affidavits but claimed not to have
'checked thoroughly' the contents or not to have read them.
(b) He claimed not to
have noticed that the impugned document was headed 'APPLICATION FOR
CREDIT' because the words were written
in small print. However, as
his evidence progressed he intimated that when he signed the document
he noticed that this was a credit
application form.
(c) Under
cross-examination he intimated that Mr Ottermann gave him a form to
complete and return it once he was 'done'. He immediately
made an
about turn and stated that he completed the form in the presence of
Mr Ottermann and gave it back to him. At a certain
stage he intimated
that while he was at home he enquired from his wife whether it was
her handwriting on the form. With the difficulty
of being unable to
extricate himself from these inconsistencies he said the
interrogation was based on a copy he took home.
Mr
Tshepe was clearly mendacious and an unreliable witness as correctly
found by the trial court and the high court.
[29]
T
he
credit application and its accompanying conditions of sale are not of
a complex or intricate nature. As the record would reflect,
during
the trial, it took counsel for Rustia Feed less than three minutes to
go-over the conditions of sale with Mr Tshepe. There
is nothing
inconspicuous about the deed of suretyship. This is so because it is
written in the same text as the remainder of the
conditions of sale.
As the high court observed: 'It is not written in a small print and
skulking furtively at the back pages.'
There was no pressure exerted
upon the Tshepes to sign. There is also no evidence to suggest that
they were required to sign the
document in haste and under duress.
They had ample opportunity to study the concise document and could
not have overlooked the
suretyship clause.
[30]
Around 2003, Mr Tshepe was an executive director of Invest North
West; a senior advisor to the Premier
of the North West Province on
mining and investments and a non-executive director of the Royal
Bafokeng Economic Board. In my view,
it is more probable than not
that he read the credit agreement. A reading of the suretyship clause
could not have escaped any reasonable
director of his level of
sophistication that he undertook liability for Bonolo Farm's debt.
After all, he was the controlling mind
of Bonolo Farms and could not
have expected that his company would incur a huge liability without
any form of security. Ms Tshepe
intimated that she did not read the
credit agreement but her husband was satisfied that she could sign it
because he had already
done so. If she was misled she has her husband
to blame. The striking feature of her evidence was that her husband
could not have
signed the agreement without reading it.
[31]
Having perused the credit agreement
it
was open to the Tshepes to delete the suretyship clause if they were
not amenable to its terms
or to make an appropriate endorsement at the foot of the document to
signify their protestation.
[16]
This they did not do.
Whether
Mr Ottermann brought the suretyship clause to their attention or not
is of no consequence regard being had to the simplicity
of the credit
agreement.
In my view, t
he
duty to inform
them
d
id
not arise.
In
Slip
Knot Investments 777 (Pty) Ltd v Du Toit
[17]
it was held:
'A
contracting party is generally not bound to inform the other party of
the terms of the proposed agreement. He must do so, however,
where
there are terms that could not reasonably have been expected in the
contract. The court below came to the conclusion that
the suretyship
was "hidden" in the bundle, and held that the respondent
was in the circumstances entitled to assume that
he was not
personally implicated. I can find nothing objectionable in the
set of documents sent to the respondent. Even a
cursory glance at
them would have alerted the respondent that he was signing a deed of
suretyship . . . Slip Knot was entitled
to rely on the respondent's
signature as a surety just as it was entitled to rely on his
signature as a trustee. The respondent
relied entirely on what
was conveyed to him by his nephew through Altro Potgieter. Slip Knot
made no misrepresentation to him,
and there is no suggestion on the
respondent's papers that Slip Knot knew or ought, as a reasonable
person, to have known of his
mistake.'
[32]
Given the plain language employed through-out the credit agreement, I
am of the view that it was not
essential that the suretyship clause
be as prominent as the Tshepes sought to
importune
.
There is no evidence of any suppression of facts on the part of
Rustia Feed or any other form of misrepresentation to the Tshepes.
The Tshepes failed to discharge the
onus
that Rustia Feed
knew or ought to have reasonably known of their mistake. Rustia Feed
was entitled to rely on their signatures as sureties
as it did
on their signatures as the representatives of Bonolo Farms.
They
signed the deed of suretyship as a manifestation of their assent to
it.
They are
therefore bound as surety and co-principal debtor with Bonolo
Farms for its indebtedness to Rustia Feed under the
credit agreement.
Their
iustus
error
defence is not sustainable on the
facts.
[33]
The Tshepes have failed to show that there are reasonable prospects
of success as well as special circumstances
which merit a further
appeal to this Court. They have already had the benefits of the two
courts and in our opinion the appeal
does not raise a substantial
point of law. In the circumstances the application for special leave
should fail.
[34]
Rustia Feed does not persist with costs in respect of the application
for condonation. As to the costs
of the application for special
leave, there is no reason why they should not follow the result. I
make the following order:
1
The application for condonation of the late filing of the application
for
special leave to appeal is granted with no order as to costs.
2
The application for special leave to appeal is dismissed with costs.
M V PHATSHOANE
ACTING
JUDGE OF APPEAL
Petse
DP
(dissenting
):
[35]
I have had the advantage of reading the judgment written by my
colleague Phatshoane AJA in this
matter. Regrettably, I am not able
to agree with the conclusion at which she has arrived. In my view
special leave to appeal should
be granted and thereafter the appeal
itself upheld. The reasons underlying our differences will be set out
below. Briefly stated,
I disagree with her conclusion that the
applicants, in signing the credit application form which incorporated
a suretyship in its
terms and conditions, were under no illusion as
to the precise nature of the document that they signed. We therefore
differ fundamentally
on our assessment of the evidence adduced at the
trial and the application of the law to the facts.
[36]
The background facts have been canvassed in the judgment of my
colleague. It will therefore not
be necessary for me to repeat them
in this judgment, save to the extent necessary for present purposes.
By way of prelude, it bears
mentioning that in
Brink
v Humphries & Jewell (Pty) Ltd
(Brink)
[2005]
2 All SA 343 (SCA); 2005 (2) SA 419 (SCA),
[18]
Cloete JA alluded to the fact that there are numerous reported cases
that have dealt with problems associated with credit application
forms in which is embodied a personal suretyship by the individual(s)
who signs the form on behalf of the applicant. The present
case is
one such case.
[37]
As pointed out in the majority judgment, two issues arise in this
litigation. First, the question
is whether the two applicants who are
married to each other in community of property and who signed the
credit application form
on behalf of the applicant for credit, ie
Bonolo Farms, consented in their personal capacities to the increased
monetary jurisdiction
of the magistrates’ court as contemplated
in s 45(1) of the Act. Second, whether the Tshepes
[19]
are bound as sureties and co-principal debtors jointly with Bonolo
Farms by reason of having appended their signatures to the credit
application form.
[38]
The Tshepes seek to avoid liability, in their personal capacities, to
the respondent by invoking
the defence of justifiable mistake. On the
other hand, the respondent seeks to hold the Tshepes bound by the
agreement on the simple
basis that they signed the document
incorporating the terms of the contract, thereby, in effect, relying
on the
caveat subsriptor
rule. This rule is well-established
in our law. More than a century ago it was described by Innes CJ in
Burger v Central South African Railways
1903 TS 571
at 578
thus:
'It
is a sound principle of law that a man, when he signs a contract, is
taken to be bound by the ordinary meaning and effect of
the words
which appear over his signature. There are, of course, grounds upon
which he may repudiate a document to which he had
put his hand. But
no such grounds have been shown to exist in the present case.
Consider the circumstances under which this note
was signed. Neither
fraud nor misrepresentation has been alleged; nothing was said by any
railway official which misled the signatory;
the language of the
document was one which the consignor did not choose to read what he
was signing, and after he signed did not
know the particulars of the
regulations by which he had agreed to abide. For the Court to hold
upon these facts that the appellant
is legally justified in
repudiating his signature would be a decision involving far-reaching
consequences, and it would be a decision
unsupported by any principle
of our law. The mistake or error of the signatory in the present case
was not such
justus
error
as would entitle him to claim a
restitution
in integrum
,
or as could be successfully pleaded as a defence to an action founded
upon the written contract, and therefore it cannot be used
for the
purpose of attacking that contract when the railway seeks to rely
upon it.'
[20]
[39]
The principles that find application insofar as the
caveat
subscribtor
rule is concerned are well-established in our law. In
Brink
[21]
it was stated that the
locus
classicus
on this aspect was a passage in
George
v Fairmead (Pty) Ltd
1958 (2) SA 465
(A), in which the following was said at 470 B-E:
'When
can an
error
be said to be
justus
for
the purpose of entitling a man to repudiate his apparent assent to a
contractual term? As I read the decisions, our Courts,
in applying
the test, have taken into account the fact that there is another
party involved and have considered his position. They
have, in
effect, said: Has the first party - the one who is trying to resile -
been to blame in the sense that by his conduct he
has led the other
party, as a reasonable man, to believe that he was binding himself?
(
vide
Logan v Beit
,
7 S.C. 197
;
I
.
Pieters & Company v Salomon
,
1911 AD 121
esp. at pp. 130, 137;
van
Ryn Wine and Spirit Company v Chandos Bar,
1928 T.P.D. 417
, esp. at pp. 422, 423, 424;
Hodgson
Bros v South African Railway
s,
1928 CPD
257
at p. 261). If his mistake is due to a misrepresentation, whether
innocent or fraudulent, by the other party, then, of course, it
is
the second party who is to blame and the first party is not bound.'
[40]
This Court in
Brink
went on to reiterate, relying on
Spindrifter (Pty) Ltd v Lester Donovan (Pty) Ltd
[1985] ZASCA 111
;
[1986] 1 All
SA 384
(A);
1986 (1) SA 303
(A) at 316 I-J, that even an innocent
misrepresentation by the other party suffices. In addition, it was
pointedly noted that:
'…
it would be unconscionable for a person to enforce the terms of a
document where he misled the signatory, whether intentionally
or not.
In the absence of a contractual term precluding reliance on the
representation in question,
[22]
a misrepresentation, when material, would entitle the signatory to
rescind the contract on the grounds of misrepresentation.'
[23]
Accordingly,
the law strikes a balance between the interests of both contracting
parties by, on the one hand, holding that a person
who signs a
document is bound by the words which appear above his or her
signature, whilst, on the other, it protects a person
who, in signing
the document, was labouring under a justifiable misapprehension
attributable to the party seeking to enforce the
contract, as to the
nature and effect of the document concerned.
[41]
It is necessary to emphasise that in determining whether a
misrepresentation asserted by a party
relying thereon was made,
regard would have to be had to all the circumstances and peculiar
facts of each case. Where a party seeking
to enforce a contract has
itself furnished the other party with a document that is misleading
in its terms, this in itself would
be sufficient, without more, to
constitute a misrepresentation.
[24]
[42]
It is as well to remember that when Mr Tshepe signed the credit
application form he was representing
Bonolo Farms. Thus, it cannot be
said that at that stage he could reasonably have expected to find a
term in the application form
binding himself as surety for Bonolo
Farms' obligations should the credit facilities for which the company
applied be granted.
If this was the consequence that Rustia Feed
desired, it should, to my mind, have specifically drawn Mr Tshepe's
attention to the
suretyship clause. There is no evidence that Rustia
Feed's representative did so. It can therefore hardly be said that
Rustia Feed
discharged its onus that the Tshepes were made aware that
by signing the document titled 'APPLICATION FOR CREDIT' they were
also
undertaking personal suretyship obligations in circumstances
where they were not informed that by merely appending their signature
to the document they would be undertaking such obligations.
[43]
Despite the criticism levelled against the Tshepes as to their
perceived dismal performance when
they testified, the following
aspects present no controversy whatsoever. First, as the majority
judgment correctly observed, Rustia
Feed's representative, Mr
Ottermann, had no recollection whether he at any stage drew
Mr Tshepe's attention to the fact that
the credit application
form embodied a suretyship by whoever signed it on behalf of Bonolo
Farms, who was the party actually applying
for credit facilities from
Rustia Feed. That Mr Ottermann gave the credit application form to Mr
Tshepe for the latter to fill
in the particulars of Bonolo Farms, who
returned the form later, cannot justifiably be a basis for concluding
that Mr Tshepe as
a matter of fact read the form before signing it
simply because Mr Tshepe is a graduate and had, at one time, been the
executive
director of Invest North West, senior advisor to the
Premier of North West and a non-executive director of the Royal
Bafokeng Economic
Board. Whilst these factors could justify a finding
that Mr Tshepe was literate and even sophisticated they cannot, on
their own,
be a basis for the finding that he, as a fact, read the
credit application form before signing it. Nor could the fact that
counsel
for Rustia Feed took 'less than three minutes' to read the
content of the credit form, as the majority judgment holds, redound
to the benefit of Rustia Feed or be a basis that is tenable for
inferring that Mr Tshepe read the credit form before appending his
signature thereon. The fact that there was 'no pressure exerted upon
the Tshepes to sign' and that there 'is no evidence to suggest
that
they were required to sign the document in haste and under duress'
is, in the context of the facts of this case, a neutral
factor.
[44]
What is beyond question though is the fact that it was Bonolo Farms
that sought credit from Rustia
Feed. And to that end, it was required
to complete a credit application form which unbeknown to the Tshepes
embodied a suretyship
in the terms
[25]
of sale on page 2 thereof, which is the critical page that is in
typescript, whereas the first page of the form had blank spaces
designed to record the personal details of the applicant for credit,
whoever was such an applicant. Another factor which is not
without
significance and appears to have been overlooked in my colleague's
judgment is that the Tshepes testified as to events
that had occurred
some 12 years previously. It is therefore hardly surprising that at
times they had memory lapses.
[45]
Insofar as Mrs Tshepe is concerned, the majority judgment accepts her
denial that she had not
read the credit form before she signed it.
She signed because, as she testified, Mr Tshepe told her to sign as
he had already done
so. The majority judgment places much store on
this aspect of her evidence to underpin the finding that if she was
misled at all,
she was misled by her husband and not by Rustia Feed.
The majority judgment also relies on what Mrs Tshepe said in her
testimony
that Mr Tshepe 'could not have signed the agreement without
reading it.' This was nothing more than an assumption on her part as
it is manifest from the tenor of her evidence that she had no
personal knowledge that her husband had as a matter of fact read
the
credit form before signing it.
[46]
The statement in the majority judgment at para 31 that '[h]aving
perused the credit agreement
it was open to the Tshepes to delete the
suretyship clause if they were not amenable to its terms or make
appropriate endorsement.
. .' is, with respect, based on a flawed
premise. It presupposes that the Tshepes had actually read the credit
form when, in actual
fact, there was no evidence on a balance of
probabilities presented by Rustia Feed, who bore the onus to justify
a finding on this
aspect in its favour. It would have been a simple
matter for Mr Ottermann to pertinently draw Mr Tshepe's attention to
the fact
that the credit form embodied within its terms a suretyship,
which was a prerequisite for the approval of Bonolo Farms'
application
for credit. What was required of the Tshepes was to
establish on a balance of probabilities that they were not aware of
the suretyship
embodied obscurely in the credit application form. In
my view, on a conspectus of the evidence, considered in its totality,
they
discharged the onus resting on them notwithstanding the
shortcomings in their evidence. That our law permits a party to set
up
its own mistake under certain circumstances in order to escape
liability under a contract brooks no argument to the contrary.
[26]
This matter, in my view, is such a case.
[47]
For the Tshepes to escape the consequences of having signed the
credit form in the terms in which
it was presented, it is necessary
to find that not only were they induced by Rustia Feed to sign but
that a reasonable person in
their position would have been misled.
This is an objective enquiry which is designed to prevent abuse of
the defence of justifiable
mistake.
[48]
A close examination of the credit application form reveals the
following features.
1
The form itself comprises two pages. Notably, the first page is,
apart from the name of the respondent, typed in block letters
and the
caption 'APPLICATION FOR CREDIT'
[27]
made up of four sections. These are: (a) the type of the business,
(which is a reference to an applicant for credit) whether the
applicant is (i) sole owner; (ii) partnership; (iii) company; or (iv)
close corporation; (b) whether the applicant is a sole owner
or
partnership, which was left blank presumably because the applicant
was a company; (c) if a company or close corporation, the
particulars
of the entity concerned and those of the persons who are directors or
members, as the case may be, are required (this
section was
completed); and (d) lastly trade references. This portion too was
left blank.
2 The second page is
titled 'CONDITIONS OF SALE' and contains 13 clauses in all. Clause 1
contains these typed words: 'I/We the
undersigned' and has three
blank spaces for the person(s) signing the form to insert his or her
or their name(s).
3 Clause 4 reads:
'Guarantee that in the
event of the APPLICANT being a company, partnership or closed
corporation that the amount will be settled
according to terms hereof
and in default of any payment by the company, partnership or closed
corporation I bind myself as surety
and co-principal debtor in
solidum with the company, partnership or closed corporation in favour
of the supplier.'
4 Clause 7 reads:
'Agree to the
jurisdiction of any Magistrates Court which has jurisdiction in terms
of section 28 of the Magistrates Court Act 32
of 1944 as, amended to
settle any claim, resulting from supplying goods, which the supplier
may lay against the applicant at any
time, and which would normally
be outside the jurisdiction of the Magistrates court because of the
amount of money involved in
the claim. Nevertheless the supplier has
the right to instigate any such legal procedure in any other
competent court which would
otherwise have the jurisdiction.'
Immediately
after clause 13, provision is made for the signatories to append
their signatures and indicate the capacity in which
the signatory
signs. The Tshepes signed at the end of the credit form indicating
that they both signed in their representative
capacity as directors
of Bonolo Farms.
[49]
It goes without saying that if the signatory does not read the credit
form before appending his
or her signature, he or she would not have
been aware of its terms. Similarly, had their attention been
pertinently drawn to the
existence of the suretyship located in this
clause, it would hardly lie in the mouths of the Tshepes to complain
about the suretyship.
In addition, the suretyship clause does not
stand out in its present setting but is, at a glance, part and parcel
of the rest of
the terms contained in the application form intended
to be completed on behalf of Bonolo Farms as the applicant for
credit.
[50]
As in
Brink
,
the prominent heading of the document proclaims that it is an
application for credit. Significantly, nowhere does it proclaim
in
the heading that it is both an application form for credit and also
one for a personal suretyship. Had it done so, there is
every reason
to believe that by such a simple device the type of difficulties that
arose in this case would have been averted.
Further, where the
signatories appended their signatures, the typed words in block
letters namely 'APPLICANT'S SIGNATURE' creates
the impression that
the signatory signs on behalf of the applicant who, in this case,
happened to be Bonolo Farms, the company
of which Mr Tshepe was the
director. There is no clear indication or even an allusion for that
matter that the signatory signed
the credit form in dual capacities
as, in the first place, a representative of the applicant ie Bonolo
Farms and, secondly, as
a surety.
[51]
Accordingly, the cumulative effect of all the shortcomings inherent
in the credit application
form ineluctably lead to one conclusion
that it was misleading in material respects. That the form was, as it
happened in
Brink
,
'a trap for the unwary' was further exacerbated by the fact that the
attention of the Tshepes was not pertinently drawn to the
fact that
the credit form embodied a suretyship and therefore they were
expected to sign in dual capacities.
[52]
In these circumstances, the conduct of Rustia Feed's representative
in furnishing the credit
application form to Mr Tshepe without
explaining to the latter its full import had a potential to mislead
and indeed was misleading
and therefore resulted in a fundamental
mistake on the part of the Tshepes. This is all the more so because
the document was presented,
not as a contract, but as an application
form for credit, when in truth it embodied contractual terms. Thus,
it does not avail
Rustia Feed to contend that the Tshepes had ample
opportunity to carefully scrutinize the credit form when they had it
in their
possession for some three days. It follows that the
suretyship portion of the credit application form was void from the
onset.
[53]
I deal next with the issue of whether the Magistrates' Court for the
district of Rustenburg,
in which the Tshepes were sued, had the
requisite jurisdiction to entertain the claim. The Tshepes were sued
for the payment of
the sum of R992 403, which is self-evidently
way beyond the monetary jurisdiction of a magistrates' court, which
was R100
000 at the time. In suing out of the magistrates' court,
Rustia Feed asserted in its particulars of claim that the Tshepes had
'agreed to the jurisdiction of the magistrates' court notwithstanding
the fact that the amount of the claim [exceeded] the court's
jurisdiction'. The foundation for this assertion was self-evidently
clause 7 of the terms of sale embodied in the credit application
form. For convenience, it is necessary to quote clause 7 again. It
reads:
'Agree
to the jurisdiction of any Magistrates Court which has jurisdiction
in terms of section 28 of the Magistrates Court Act 32
of 1944 as,
amended to settle any claim, resulting from supplying goods, which
the supplier may lay against the applicant at any
time, and which
would normally be outside the jurisdiction of the Magistrates court
because of the amount of money involved in
the claim. Nevertheless
the supplier has the right to instigate any such legal procedure in
any other competent court which would
otherwise have the
jurisdiction.'
[54]
Reduced to its bare essentials, clause 7 in essence provides that
Rustia Fees may, if it so elects,
sue in any magistrates' court
having jurisdiction in terms of s 28 of the Act for any claim arising
from a sale of goods that it
may have against the applicant at any
time, which otherwise falls outside of the jurisdiction of the
magistrates' court by reason
of the amount of money involved. The
reference to 'the applicant' in clause 7 is significant. It is
important because it can only
be a reference to Bonolo Farms for the
simple and obvious reason that the applicant here, according to the
credit application form,
was none other than Bonolo Farms. This is
made plain by the credit application form itself on the first page
thereof, where the
trade name of the applicant is indicated to be
Bonolo Farms (Pty) Ltd being a company and not a sole owner (meaning
a person) or
a partnership or a close corporation. The first page of
the credit form also reflects the company registration number of
Bonolo
Farms.
[55]
Thus, applying the ordinary rules of interpretation of documents the
logical point of departure
is the language of clause 7 itself,
considered in the context of the document read as a whole. In
Natal
Joint Municipal Pension Fund v Endumeni Municipality
[2012] ZASCA
13
;
2012 (4) SA 593
(SCA);
[2012] 2 All SA 262
(SCA) the current
state of the law in relation to the interpretation of documents was
explained as follows at para 18:
'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.'
[56]
On a close scrutiny of clause 7, and applying the well-established
principles of interpretation
of documents, any claim that Rustia Feed
may have against the applicant arising from a supply of goods can
only be a claim against
Bonolo Farms as the applicant referred to in
this clause and no one else, even if it were accepted that the
suretyship embodied
in the credit form was valid and of full force
and effect. The inevitable consequence of this is that the Tshepes
qua
sureties did not consent to the jurisdiction of the magistrates'
court as required by s 45(1) of the Act. In their plea the Tshepes
denied that they had consented to the jurisdiction of the
magistrates' court. Thus, absent any form of written consent by them
qua
sureties as envisaged in s 45(1) of the Act, the Rustenburg
Magistrates' Court lacked jurisdiction to entertain Rustia Feed's
claim against the Tshepes. In these circumstances, Rustia Feed's
action should have been dismissed for want of jurisdiction. In
any
event, if the suretyship is, for the reasons stated above, of no
force and effect, as I have already found, the alleged consent
to the
jurisdiction of the magistrates' court insofar as it relates to the
Tshepes will likewise be rendered ineffectual.
[57]
It remains briefly to say something about the threshold for special
leave. It is trite that the
existence of reasonable prospects of
success is not sufficient for this Court to grant special leave.
Something more in the nature
of exceptional circumstances is required
to be established. In
Westinghouse
Brake & Equipment (Pty) Ltd v Bilger Engineering (Pty) Ltd
1986 (2) SA 555
(A) at 564H-565E, the requirements for special leave
were said to be in existence where: (a) the envisaged appeal raises a
substantial
point of law; or (b) the prospects of success are so
strong that a refusal of leave would result in a manifest denial of
justice;
or (c) the matter is of very great importance to the parties
or to the public. This is of course not an exhaustive list.
[28]
[58]
Taking a broad overview of everything and the substantial amount
involved, I am of the view that
not only do special circumstances,
which justify a further appeal to this Court, exist but also that the
appeal itself ought to
be allowed. In light of the aforegoing
reasons, I would have granted special leave to appeal and thereafter
uphold the appeal with
costs. As this is a minority judgment it is
not necessary to formulate the order that I would have granted with
precision.
X M PETSE
DEPUTY PRESIDENT
SUPREME COURT OF APPEAL
Appearances:
For applicants: M G Hitge
Instructed by:
Morebodi-Paul Inc, Rustenburg
Symington
& De Kock, Bloemfontein
For
respondent:
A C van der Nest
Instructed by: Esterhuyse
Greyling Inc, Mahikeng
Phatshoane Henny,
Bloemfontein.
[1]
See
s 16(1)
(b)
read
with
s 17(3)
of the
Superior Courts Act 10 of 2013
.
If the last day of the month falls on a day other than a business
day, as in this case, the application must be filed with the
registrar on the preceding business day.
[2]
The
period between 16 December and 15 January (both dates inclusive)
constitutes
dies
non
;
See Rule 1(2) of
Rules
Regulating the Conduct of the Proceedings of the Supreme Court of
Appeal of South Africa
as
promulgated in Government Notice R1523 of 27 November 1998.
[3]
Makhanya
v University of Zululand
[2009] ZASCA 69
;
[2009] 4 All SA 146
(SCA);
2010
(1) SA 62
(SCA) para 29.
[4]
Grand
Wholesalers v Ladysmith Metal Industry
1985
(4) SA 100
(N)
at
102G–I.
[5]
Steenkamp
v Webster
1955
(1) SA 524
(A) at 530-531;
Sneech
v Hill Kaplan Scott and Partners
1981
(3) SA 332 (A).
[6]
See
also
Sneech
v Hill Kaplan Scott and Partners
fn 5 above.
[7]
Natal
Joint Municipal Pension Fund v Endumeni Municipality
[2012]
ZASCA 13
;
[2012] 2 All SA 262
(SCA);
2012
(4) SA 593
(SCA)
para 18.
[8]
The
City of Tshwane Metropolitan Municipality v Blair Atholl Homeowner
Association
[2018] ZASCA 176
;
[2019] 1 All SA 291
(SCA);
2019 (3) SA 398
(SCA)
para 61.
[9]
Bothma-
Batho Transport (Edms) Bpk v S Bothma & Seun Transport
[2013] ZASCA 176
;
[2014] 1 All SA 517
(SCA);
2014 (2) SA 494
(SCA)
para
12.
[10]
David
v Naggyah and Another
1961 (3) SA 4
(N);
[1961] 3 All SA 211
(N) at 214.
[11]
See
Be
Bop A Lula Manufacturing & Printing CC v Kingtex Marketing (Pty)
Ltd
[2008] 1 All SA 529
(SCA);
2008 (3) SA 327
(SCA) para 10.
[12]
Brink
v Humphries and Jewell (Pty) Ltd
2005 (2) SA 419 (SCA).
[13]
Ibid
para 3.
[14]
Sonap
Petroleum (SA) (Pty) Ltd (formerly known as Sonarep (SA) (Pty) Ltd)
v Pappadogianis
[1992] ZASCA 56
;
1992 (3) SA 234
(A) at 119.
[15]
The
opposing affidavit in the summary judgment proceedings in previous
action in the high court, North Gauteng, and the opposing
affidavit
also in the summary judgment proceedings in the magistrates’
court do not form part of the record but were read
into the record
during the trial.
[16]
Steenkamp
v Webster
fn 5 a
t
529G-H.
[17]
Slip
Knot Investments 777 (Pty) Ltd v Du Toit
[2011] ZASCA 34
;
2011
(4) SA 72
(SCA) para 12.
[18]
Brink
v Humphries & Jewell (Pty) Ltd
[2005]
2 All SA 343 (SCA); 2005 (2) SA 419 (SCA).
[19]
My
colleague has, in her judgment, defined the two applicants who are
husband and wife as the Tshepes. I, too, adopt that appellation
for
the sake of convenience.
[20]
This
passage was cited with approval in
George
v Fairmead (Pty) Ltd
1958 (2) SA 465
(A) at 470 B-E.
[21]
Brink
fn
1 above.
[22]
For
which see, for example,
Trollip
v Jordaan
1961 (1) SA 238 (A).
[23]
Brink
fn
1 above at 421F-G.
[24]
See
in this regard
Keens
Group Co (Pty) Ltd v Lötter
[1989] 1 All SA 49
(C);
1989 (1) SA 585
(C) at 591 A-D.
[25]
The
document itself speaks of conditions of sale which is a
mischaracterisation for, in truth, these are contractual terms and
not conditions in the sense in which the word 'condition' is
understood in the law of contract.
[26]
See
in this regard:
National
and Overseas Distributors Corporation (Pty) Ltd v Potato Board
1958 (2) SA 473
(A) at 479G.
[27]
Block
letters are from the form itself.
[28]
See
also:
Director
of Public Prosecutions: Gauteng Division, Pretoria v Moabi
[2017] ZASCA 85
;
2017 (2) SACR 384
(SCA) para 21;
Cook
v Morrison
[2019] ZASCA 8
;
[2019] 3 All SA 673
(SCA)
2019 (5) SA 51
(SCA) para
8.