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[2019] ZAFSHC 83
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Bothma N.O and Another v Bothma and Others (3102/2016) [2019] ZAFSHC 83 (18 June 2019)
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE STATE DIVISION, BLOEMFONTEIN
Reportable:
NO
Of Interest to
other Judges: NO
Circulate to
Magistrates:
NO
Case No:
3102/2016
In the
matter between:
TERTIUS BOTHMA N.O.
First Plaintiff
CARINE BOTHMA
N.O.
Second Plaintiff
and
PELHAM STEPHANUS BOTHMA
First
Defendant
S BOTHMA & SEUN TRANSPORT (EDMS) BPK
Second Defendant
MERINO BOERDERY BELANGE (EDMS) BPK
Third Defendant
PELHAM STEPHANUS BOTHMA N.O.
Fourth Defendant
JOHANNA ELIZABETH BOTHMA N.O.
Fifth Defendant
JAN FW BASSON
N.O.
Sixth Defendant
LOUIS BOTHMA (JUNIOR)
N.O.
Seventh Defendant
JAN FW BASSON
N.O.
Eighth Defendant
PELHAM STEPHANUS BOTHMA N.O.
Ninth Defendant
MAVIS CILLIERS
N.O.
Tenth Defendant
CORAM:
NAIDOO,
ADJP
HEARD ON:
14 JUNE 2019
DELIVERED ON:
18
JUNE 2019
[1] This is an application for
leave to appeal against a judgment of this court written by my
colleague
Rampai ADJP (as he then was). The trial proceeded over a
period of 20 days and appears to have concluded on 30 October 2018.
The
judgment was delivered on 24 January 2019. In the absence of
Rampai J, who is currently on long leave and could not see his way
clear to attend to this matter, the Application for Leave to Appeal
was allocated to me to deal with. The pleadings, exhibits,
transcribed record, the judgment, the Application for Leave to Appeal
and all the additional documents filed in this matter, number
approximately 3000 pages (possibly more). As is my practice, I
usually deliver short judgments in applications for leave to appeal.
While I will endeavour to keep to that practice as far as possible, I
am aware that this judgment will, of necessity, be longer
than usual,
due to the number of issues raised by both parties. For convenience,
I will refer to the applicants as the defendants
and the respondents
as the plaintiffs
[2] This was an action
instituted by the plaintiffs against the defendants, arising from a
Deed of Settlement
entered into between the parties, and made an
order of court. The defendants allegedly failed to fulfil their
obligations as stipulated
in the Deed of Settlement, and the
plaintiffs’ cause of action was accordingly based on such
alleged breach. It was not in
dispute that the Deed of Settlement
stipulated that the defendants, jointly and severally, were obliged
to deliver to the plaintiffs
100 000 m
3
of “clean
sand”, excluding topsoil, which was to be heaped in a pile in
the mine area situated along the weighbridge
on the farm Boschbank,
within six months of the date of signing of the Deed of Settlement.
It was essentially the defendant’s
alleged breach of these
obligations that was the subject of the action and trial before
Rampai J. Ultimately, the interpretation
of the term “skoon
sand” (clean sand) written in the contract lay at the heart of
the matter, in order to determine
if the defendants had indeed
breached the agreement. Adv AP Joubert SC, with Adv
PG Leeuwner appear for the plaintiffs
and Adv A Subel SC, with Adv C
Acker appear for the defendants.
[3] The defendants assailed the
judgment of the trial court on some 53 grounds which are extensively
set
out in the Notice of Application for Leave to Appeal. It is
unnecessary to repeat those grounds here, save to say that in essence
the defendants allege that the trial court erred in the
interpretation of the agreement between the parties and in accepting
the
plaintiffs’ version and rejecting that of the defendants.
If necessary, I will refer briefly to such of the grounds of appeal
as may be germane to this judgment.
[4] The test to be applied in an
application for leave to appeal is regulated by section 17 of the
Superior
Courts’ Act 10 of 2013 (the Act). Section 17(1)(a) is
of relevance in this matter and provides:
“
Leave
to appeal may
only
be given where the judge or judges concerned are of the opinion that
–
(a)
The
appeal
would
have a reasonable prospect of success
(b)
There
is some other compelling reason why the appeal should be heard…”
(my underlining and emphasis)
Section 17 changes the position somewhat in respect of
the test to be applied. Previously, an applicant was merely required
to show
that there is a reasonable possibility that a court,
differently constituted, may come to a different conclusion
than
the court
a quo.
The test in terms of section 17 requires
the applicant to show that there is a reasonable prospect of
success and not merely
a possibility.
In the matter of
Matoto v Free State Gambling and
Liquor Authority (4629/2015)
[2017] ZAFSHC 80
(8June
2017)
, a decision of my colleague, Daffue J, emanating from this
Division, he said at paragraph 5, and I agree, that:
“
There can be no doubt that the bar for granting
leave to appeal has been raised. Previously, the test was
whether there was
a reasonable prospect that another court
might come to a different conclusion. Now, the use of the word
“would” indicates a measure of certainty that
another court will differ from the court whose
judgment is sought to be appealed against. See
Acting
National Director of Public Prosecutions and Others
v Democratic Alliance (19577/2009)
[ 201]6 ZAGPPHC
489 (24 June 2016).
The use by the legislature of the word “only”,
emphasised
supra,
is a
further indication of a more stringent test.”
Similar views were expressed
in
Ntsoereng +1 v Sebofi +1, In Re: Sebofi v Ntsoereng
4518/2012)
[2016] ZAFSHC 153
(7July 2016),
and
The Mont Chevaux Trust v Tina Goosen +18
2014 JDR LCC at para [6
]. Both
counsel also referred me to a number of other matters where similar
views were articulated. [
See Starways Trading
21 CC v Pearl Island 714 (Pty) Ltd
[2017] All SA 568
(WCC) at 572,
para [10]; Notshokovu v S (157/15)
[2016] ZASCA 112
(7 September
2016)
[5] I have read the extensive
judgment of Rampai J and taken note of the heads of arguments
presented by
both counsel at the end of the trial and for the
purposes of this hearing, as well as the extensive oral arguments
before me. Both
counsel also provided me with an indication of which
parts of the voluminous record should be read, and I thank them for
that.
It is necessary to remind ourselves that this is not a
re-hearing of the matter, nor is this court a court of appeal.
The
guiding principle, in terms of section 17(1) of the Act is
whether the appeal would have reasonable prospects of success. I
shall
endeavour to confine myself to that consideration.
[6] The court
a quo
dealt
comprehensively with the law relating to the interpretation of
contracts, statutes and other documents, as enunciated in
Coopers
and Lybrand and Others v Bryant 1995(3) SA 761 (A) at 768 A-E
, as
well as the change in the approach to interpretation in South Africa,
creating the current trends in interpretation. The latter
position
was dealt with by the Supreme Court of Appeal in three matters,
namely,
KPMG Chartered Accountants (SA) v Securifin Ltd and
Another
2009 (4) SA 399
(SCA); Natal Joint Municipal Pension Fund v
Endumeni Municipality
2012 (4) SA 593
(SCA) paras 603F – 604E,
and Bothma Batho Transport (Edms) Bpk v Bothma & Seun Transport
(Edms) Bpk
2014 (2) SA 494
SA para [12].
[7] In essence, it has been
established that the interpretation of a contract or document is one
unitary
process, where the literal meaning of the words, through
which the parties have expressed their contractual intentions, must
be
considered in the light of all relevant and admissible context. In
doing so, the court must be loyal to the text of the contract,
and in
the case of commercial contracts, the court should lean in favour of
a commercially sensible construction. (
Batho Bothma
supra).
Context or the factual matrix relevant to the agreement or contract
contended for by the parties, becomes very important
and it is
crucial for a court engaged in interpreting a contract to diligently
consider every relevant factor. As I alluded to
earlier, the
defendants in the present matter raised a number of grounds of
appeal. I shall deal with three of those, which I consider
important
for current purposes. That is not to say that the other grounds are
not important. In my view, the three grounds I will
deal with are
mentioned for the purpose of determining whether the appeal would
have a reasonable prospect of success.
[8]
It
is common cause that the plaintiffs in this matter sued the
defendants in this matter, in an action under case number 1231/2011
for payment of just over R99 million (Ninety Nine Million Rand). This
was monies the plaintiff claimed as the cost of rehabilitating
a sand
mine, which the defendants failed to do, or to complete in terms of a
previous court order. The summons set out extensively
what was
required in order to rehabilitate the mine in question, that the
defendant’s had failed to rehabilitate the mine
as stipulated,
and alleged that it would cost approximately R99 million for the
plaintiffs to do so, in the face of the defendants’
failure to
rehabilitate the mine. The trial commenced before my colleague,
Jordaan J.
It
emerges that an inspection
in
loco
was held,
which the presiding judge attended. What also emerged from the
evidence is that the defendants in attempting to rehabilitate
this
mine, filled the large hole with builder’s rubble, including
tiles and other such material. The correspondence as well
as the
summons in this regard indicated that this was big concern and caused
a great deal of dissatisfaction to the first plaintiff,
who wanted
all of the material used by the defendants to be removed. It is
alleged that, for the purposes of the inspection
in
loco
, the
plaintiffs had dug up the contents of the hole filled by the
defendants in order to demonstrate to the presiding judge that
building rubble and other unsuitable material used by the defendants.
It is common cause that the plaintiff’s case then was
that the
hole in the mine was a threat to the lives and safety of humans and
animals, hence the concern over the defendant’s
failure to
properly fill the hole.
[9] The trial was subsequently
settled before all the evidence was led. The parties did not
communicate personally
with each other at all during the settlement
negotiations, but did so via their respective legal representatives.
A written settlement
agreement was eventually compiled and signed by
the parties. It is the settlement agreement, which was made an order
of court by
Jordaan J, that is the subject of the current matter. The
defendants contend that the finding of the trial court that the
action
before Jordaan J had nothing to do with rehabilitation of the
mine but everything to do with money, was factually incorrect, as
the
money was claimed for the purpose of rehabilitating the mine. They
contend further that the settlement agreement was premised
on the
basis that, due to the plaintiffs’ unhappiness with the
building rubble that was initially used,
they
agreed on delivering “clean sand” for the purpose of
rehabilitating the mine. There was never any agreement that
commercially saleable sand, within the extended definition of “clean
sand” alleged by the plaintiffs, would be delivered.
Their
understanding of “clean sand” was sand without building
rubble.
[10] It is evident from the judgment that
the trial court did it not grapple with this aspect in determining
what the
intention of the parties was at the time of signing the
settlement agreement. There was extensive evidence from the soil
scientist,
Dr Van Der Waals, who testified on behalf of the
plaintiffs regarding the meaning of “clean sand”. It
seems that the
plaintiff and the trial court relied on this
definition in alleging that the defendants were in breach of the
order of court. The
plaintiffs in oral argument before me denied
this. I note that Dr Van Der Waals report came to the attention of
the plaintiffs
some three years after the settlement agreement was
made an order of court by Jordaan J. The defendants contend that the
definition
of “clean sand”, as expounded by De Van Der
Waals could not have been within the contemplation of the plaintiffs
at
the time of signing the settlement agreement. In my view, this is
a very relevant factor to have been considered in interpreting
the
meaning of “clean sand” in the settlement agreement, and
may well lead to another court making a different finding
in this
respect.
[11] It is an established
rule of interpretation that the evidence of witnesses, including
expert witnesses, is not
admissible in determining the meaning of
words or terms used in a contract or agreement. The Supreme Court of
Appeal said in the
KPMG case supra that
“
interpretation
is a matter of law and not fact, and, accordingly, interpretation is
a matter for the court and not for the witnesses”
.
Mr
Subel pointed out a number of instances in the judgment of the trial
court where it is apparent that the trial court relied on
the
evidence of Dr Van Der Waals (and rejected the evidence of the
defendants’ expert, Mr Jeffrey) to interpret and give
meaning
to the words “skoon sand”. These are paragraphs 87, 88,
91 and 138. Mr Subel argued that in paragraph 128,
the trial court
not only relied on the evidence of Dr Van der Waals but also the
first plaintiff, Tertius Bothma, to interpret
the meaning of “skoon
sand”
[12] Mr Joubert denied that the plaintiffs
led the evidence of its experts to interpret the meaning of the words
in
the agreement, or that the court relied on the evidence and
opinion of the expert, Dr Van der Waals to interpret the agreement.
Mr Subel referred me to the summary of Dr Van der Waals’ expert
report in Bundle 2, page 58, where he gives his opinion on
the
scientific definition of “skoon sand”. The plaintiffs’
legal representative then led Dr Van der Waals on
this aspect in
evidence in chief and obtained confirmation that this was his opinion
in respect of the definition. (see transcript
Volume E, pages 134 and
150). This, Mr Subel argued, influenced the whole of the court’s
judgment. It is difficult to disagree
with that perception.
[13] Another important aspect raised by the
defendants is the trial court’s handling of its assessment of
the
evidence of the defendant’s expert, Mr Jeffrey, and that of
the plaintiffs’ expert, Dr Van Der Waals. The defendants
pointed out that the trial court, in criticising Mr Jeffrey, simply
quoted almost verbatim in some paragraphs of its judgment,
the
plaintiff’s heads of argument handed up at the end of the
trial. The defendants mentioned paragraphs 93 to 105 of the
judgment.
I
conducted an examination of the judgment and the plaintiff’s
heads of argument and found that from paragraph 91 to 117 of
the
judgment, the trial court had quoted, verbatim in most them,
paragraphs 70 to 91 of the plaintiff’s heads of argument,
without indicating that it was quoting from the plaintiff’s
heads. In addition the defendants pointed out that the trial
court
sets out in paragraphs 135 to 142 of its judgment what is ostensibly
its assessment of Jeffrey’s evidence. Closer examination
reveals that these paragraphs are a repetition of a table marked “A”,
annexed to a document titled “Plaintiff’s
Response to
Some Matters Raised in Defendant’s Heads of Argument”.
This was handed up by the plaintiffs’ counsel
during the oral
arguments in court. A cursory perusal of other parts of the judgment
reveal that these were not the only instances.
[14] While it is not
inappropriate for a court to borrow from the heads of argument of
counsel, where there was a well
written summary of the facts or a
good exposition regarding the evidence or law, it is at least
expected of the court to indicate
that it has done so, in order to
acknowledge the source and to avoid any perception of bias, on the
part of the opposing party.
What was quoted by the trial court in
this matter is clearly the plaintiffs’ views of the evidence,
which logically would
favour its version. The plaintiffs’
assessment of the evidence led on behalf of the defendants omitted
those parts of the
evidence that were favourable to the defendant’s
case. The unease of the defendants is not unjustified, when they
assert
that
“
In
relying so extensively and uncritically on the Plaintiff’s
submissions, without objectively considering the veracity thereof”
,
the court erred in a number of respects both in its criticism of
Jeffrey as well as in the rejection of his evidence.
In
this regard, Mr Stubel referred me to the case of
Stuttafords
Stores (Pty) Ltd v Salt of the Earth Creations (Pty) Ltd 2011(1) SA
267 (CC),
where
there was an application for recusal of the presiding judge in the
court
a quo
,
who copied the written heads of argument of the respondent’s
counsel. Although the Constitutional Court (CC) dismissed the
application for leave to appeal to it against the Full Court’s
dismissal of the appeal on that ground, holding that it is
not in the
interests of justice for the CC to hear the matter, the CC remarked
that its dismissal of the application for leave
to appeal should not
be seen as an endorsement of the main judgment (ie of the court
a
quo
). The court
also held that its dismissal of the application for leave to appeal
was not an endorsement of the Full Court’s
findings that the
judgment did not give rise to bias or a perception of bias. As I
indicated, the perception of bias, and a failure
by the court a quo
to independently assess the evidence led by the defendants, is
difficult to ignore. This in my view, read
together with the
other grounds of appeal, has a reasonable prospect of attracting the
interference of the appeal court.
[15] The defendants also assailed the order
made by the trial court on grounds that, in my view, are logical. It
does
appear that the trial court arbitrarily chose to base its order
on the cost of plastering sand and not on the cheaper building sand.
No reasons were put forward for this in order to understand why the
court was exercising its discretion in the manner it did. I
am
consequently of the view that on the grounds I have mentioned as well
as a number of other grounds, the appeal would have a
reasonable
prospect of success.
[16] Mr Subel submitted that in the event of this
court granting leave to appeal, such appeal should lie to the Supreme
Court
of Appeal (SCA), on the basis that the quantum is large and
that the trial court made findings of dishonesty against the
defendants’
witnesses. I understand Mr Subel to say that such
findings are unjustified, as he asserts that the application should
be granted
in order for these witnesses to vindicate themselves. Mr
Joubert submitted that there is no reason for the matter to be
referred
to the SCA, and that the Full Court is the first port of
call in terms of section 17 (6) of the Act.
Section
17(6)(a) reads thus:
“
(a)
If
leave is granted under subsection (2)
(a)
or
(b)
to
appeal against a decision of a Division as a court of first instance
consisting of a single judge, the judge or judges
granting leave must
direct that the appeal be heard by a full court of that Division,
unless they consider-
(i)
that the decision to
be appealed involves a question of law of importance, whether because
of its general application or otherwise,
or in respect of which a
decision of the Supreme Court of Appeal is required to resolve
differences of opinion; or
(ii)
that the
administration of justice, either generally or in the particular
case, requires consideration by the Supreme Court of Appeal
of the
decision, in which case they must direct that the appeal be heard by
the Supreme Court of Appeal”.
[17] In this matter,
the interpretation of the agreement between the parties was central
to the determination of the
various other issues. The trial court
appears to have erred in applying the principles and rules of
interpretation to the facts
of this case. As such, this matter
involves a question of law, which requires the attention of the SCA.
In my view, the SCA would
be the correct forum to hear an appeal in
this matter.
[18] In the circumstances, the following
order is made:
18.1 The applicant is granted leave to appeal
against the whole of the judgment of the court
a quo
, to the
Supreme Court of Appeal
18.2 The costs of this application are to be costs
in the appeal.
____________________
S. NAIDOO,
J
On behalf
of Plaintiffs:
Adv. AP Joubert SC, with
Adv PG Leeuwner
Instructed
by:
Bouwer Attorneys
c/o Rosendorf Reitz Barry Attorneys
6, 3
rd
Street
Bloemfontein
(REF: CVR/DW/E33080)
On
behalf of Defendants: Adv.
A Subel SC, with
Adv C Acker
Instructed
by:
Tersia Basson Attorneys
c/o Bezuidenhouts Attorneys
104 Kellner Street
Westdene
Bloemfontein
(REF: Ms L Van Greunen/bj/P0866)