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[2019] ZANCHC 5
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Letlhabile Coaches CC v Minister of Police (1469/2016) [2019] ZANCHC 5 (7 March 2019)
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTHERN
CAPE DIVISION, KIMBERLEY)
Case
No: 1469/2016
Heard
on: 11-12/12/2018
Delivered
on: 07/03/2019
In
the matter between
LETLHABILE
COACHES CC
Plaintiff
REGISTRATION
NUMBER: 2003/099296/23
And
MINISTER
OF POLICE
Defendant
JUDGMENT
PAKATI
J
[1]
The plaintiff, Letlhabile Coaches CC (“Letlhabile Coaches”)
a close corporation duly incorporated
and registered as such in terms
of the Close Corporation Act, 69 of 1984, issued summons against the
defendant, the Minister of
Police (“the Minister”) in his
official capacity, for payment of R414 700-00 arising from
repudiation of an alleged
agreement entered into by the parties. The
defendant denies that an agreement was concluded by the parties. It
alleges that Letlhabile
coaches failed to comply with its (the
Minister’s) procurement process. Evidence was led by the
parties on merits only.
[2]
Mr Letokore Nicholas Motshabi testified that Letlhabile Coaches
conducts a passenger transport business. He
is the general manager
and a member of the CC. He testified that on 25 February 2016 he
received a request from the office of the
defendant
via
Colonel SC Senti and/or other employees of the Minister to submit
quotations to transport 352 of its trainees from different points
in
Kimberley
via
De Aar to Oudtshoorn on 28 February 2016 and
from Oudtshoorn
via
De Aar to Kimberley on 06 March 2016. Mr
Motshabi states that he submitted a written quotation including a
declaration (quotation
questionnaire), SBD 4: (declaration of
interest) and other documents inclusive of a tax clearance
certificate which, according
to him, constitutes an offer by the
plaintiff. He alleges that on 26 February 2016 he received a
letter addressed to the
Divisional Commissioner, Human Resource
Development (page 25 of the bundle) and attached to it was a
provisional approval of the
transportation of the trainees sent by
Col Senti to Mr Motshabi
via
email (page 24 of the bundle).
For convenience, I will quote both letters as the plaintiff alleges
that they constitute approval
of the tender. Page 25 records:
‘
APPLICATION FOR
FINANCIAL AND LOGISTICAL AUTHORITY: ADVERTISING OF PSA ENTRY LEVEL
AND TRAINEE POSTS: NORTHERN CAPE
1.
This
office would hereby like to apply for a financial and logistical
authority to transport 352 Trainees to Oudtshoorn Academy
on 28
February 2016 returning on 06 March 2016.
2.
Attached
please find quotation sourced from Letlhabile Coaches, Lucian
Transport as well as Big Sky Coaches. The said entities are
all
registered with the South African Police Services providers.
3.
The
companies quoted as follows for the return trips:
3.1
Letlhabile
Coaches = R357 000-00
3.2
Lucian
Transport = R57 700 (for a single trip:
Springbok via Calvinia)
3.3
Big Sky
Coaches = did not respond to request for
quotation.
4.
Due to
time constraints seeing that the trainees are expected to report at
the academy on 206-02-29, this office recommends that
Letlhabile
Coaches be appointed as [the] preferred service provider.’
[
3]
Page 24 reads thus:
‘
Good morning Mr
Motshabi,
Attached
herewith find the provisional approval for the transportation of the
trainees to Oudtshoorn College.
The
arrangements will be as follows:
Date
of Departure
Time
Cluster
Sunday,
28 February 2016 23h00
Kimberly via De Aar
20h00
Kuruman
via Kimberley
21h00
Upington
19h00
Springbok via Calvinia
We
have been informed that the Trainees will return to the province on
Saturday and not Sunday as previously communicated. The Trainees
are
to report at the college on Monday, 29 February 2016 thus the need to
travel on 28-02-2016. Kindly note that we are awaiting
official
confirmation from our Head Office in this regard. Your office is
requested to get in touch with Major Senti if more clarity
is
required.’ My emphasis
[4]
Of significance is the handwritten inscription on this page which
reads: F.A @ R414 700-00, APPROVED;
(i) FA as per par 3, (ii)
Procurement to be done at Provincial Office. At the bottom of the
page a stamp and the following words
appear; BPD 172, FUNDS AVAILABLE
and NOT AVAILABLE has been cancelled, Amount R 414 700.00, Resp:
0204, Object: 0152, Project
0672, SCOA: 301366, Fin Auth: 0126
163 585 dated 26 February 2016 and signed by Captain Smit. Mr
Motshabi stated that when
he received the email with the handwritten
inscription and the signature of Colonel EC Pelser.
[5]
The letter at paragraph 2 was attached to another letter addressed to
Colonel Pelser this reads thus:
‘
Attached please
find the request for financial authority to hire busses for the
trainees who will be reporting at Oudtshoorn on
2016-02-29. Kindly
note that this office has sourced quotations from three service
providers hereby attached for ease of reference.
Kindly further note
that the dates are indicated as 2016-02-28 and the return date
2016-03-06 seeing that the quotations were requested
before this
office received head office’s directive. The above will be
communicated with the approved service provider. Due
to the volume of
the information, the documents will be forwarded separately. Your
assistance in obtaining the said financial authority
is appreciated.’
[6]
Mr Motshabi was referred to an email sent to Col Pelser on 25
February 2016 by Col Senti requesting financial
authority. Mr
Motshabi confirmed that Col Pelser is the one who signed the
financial authority that appears at page 25 of the bundle
(see para 4
supra
) to be the acceptance of the plaintiff’s offer and
that the order number would follow due to lack of time. He stated
that
the plaintiff was the only company that submitted the quotation
for the entire routes showing that it would be in a position to
render the service in full. He viewed pages 24 and 25 of the bundle
as confirmation of the booking although the defendant had to
pay 25%
deposit after receipt of the confirmation of the booking. He stated
that even though the documents (pages 24 and 25 of
the bundle) did
not refer to ‘
final approval’
but that the
defendant was still waiting for official confirmation from Head
office, he perceived that Head Office had received
the information
and were waiting for the order number.
[7]
On 28 February 2016 the plaintiff, relying on the acceptance of the
offer, dispatched busses to the various
pick-up points. The busses
picking up passengers from outside Kimberley left Kimberley earlier
so as to arrive on time. They were
escorted as usual. The bus drivers
arrived at the various police stations for the pick-up ahead of time.
One of the drivers, Mr
Fikile Simon Mana, testified that he was
unable to pick-up the trainees and were told that Big Sky Coaches was
the one to do the
transportation and not Letlhabile Coaches. At that
stage Big Sky Coaches were already loading the trainees. They had to
return
to Kimberley. Mr Motshabi testified further that no one from
the defendant’s office informed the plaintiff that they would
not render the service anymore. The plaintiff regarded this as a
repudiation of the agreement, which it accepted. It claims that
it
suffered damages to the amount of R 414 700-00 calculated as
follows:
7.1
R 27 300 in respect of the provision and use of one semi-luxury
coach for sixty seated passengers from Kimberley via De
Aar to
Oudtshoorn on 28 February 2016;
7.2
R 29 500, 00 in respect of the provision and use of
1 semi-luxury coach for 60 seated passengers from Kimberley
via De
Aar to Oudtshoorn on 28 February 2016;
7.3
R 74 000, 00 in respect of the provision and use of 2 semi-luxury
coaches for the transport of 120 people from Upington to Oudtshoorn
on 28 February 2016,
7.4
R 42 550, 00 in respect of the provision and use of 1
semi-luxury coach from Springbok via Calvinia to Oudtshoorn on 28
February 2016;
7.5 R 34 000;00 in
respect of the provision and use of 1 semi-luxury coach for 60 seated
passengers from Kuruman to Oudtshoorn
on 28 February 2016;
7.6 R 27 300;00 in
respect of the provision and use of 1 semi-luxury coach for 60 seated
passengers from Kimberley
via
De Aar to Oudtshoorn on 06 March
2016;
7.7 R 29 500, 00
in respect of the provision and use of 1 semi-luxury coach for 70
seated passengers from Kimberley
via
De Aar to Oudtshoorn on
06 March 2016;
7.8 R 74 000, 00
in respect of the provision and use of 2 semi-luxury coaches for the
transport of 120 people from Upington
to Oudtshoorn on 06 March 2016;
7.9 R 42 550, 00
in respect of provision and use of 1 semi-luxury coach for the
transport of 60 people from Springbok
via
Calvinia to
Oudtshoorn on 06 March 2016; and
7.10 R 34 000, 00
in respect of the provision and use of 1 semi-luxury coach for 60
seated passengers from Kuruman to Oudtshoorn
on 06 March 2016.
[8]
Mr Motshabi testified that the plaintiff never received a document
setting out any procurement process from
the Minister’s office
or attended a course where the defendant explained their procurement
process. He disputed that page
25 of the bundle was the defendant’s
internal document and stated that the email was attached to a
document that was directed
to him. The reason why page 25 was
attached was for him to have sight of the information contained in
it. He states that the defendant
would not have forwarded it to the
plaintiff. He explained the procedure taken when a request for
quotation has been made. He was
adamant that the document with the
word ‘Approved’ was for financial authority and that if
it was sent for him to see
the status of the quotation then it was
not supposed to have been forwarded to him. Regarding the tax
certificate he explained
that an expired one was mistakenly sent with
their quotation as it was short notice otherwise they were compliant
at the time.
He explained further that the information regarding tax
is normally sourced from Central Supplier Data Base used by all
government
departments when they want to know whether or not a
service provider is compliant.
[9]
Mr Motshabi testified that it had happened before that a service was
provided by the service provider while
waiting for the order number
especially when emergency situations arise. It was not strange that
an order number would be issued
at a later stage.
[10] Mr Mana
testified that he worked for Letlhabile Coaches for three years as a
bus driver. On 28 February 2016 he drove
to Upington to fetch police
trainees in order to transport them to Oudtshoorn. On his arrival he
found that Big Sky Coaches was
already there loading the trainees. He
then conveyed the message to Mr Motshabi, his employer.
That
concluded the plaintiff’s case.
[11] Col Sabatha
Clement Senti was working at the Provincial Recruitment Office in the
Northern Cape. He is currently stationed
in Potchefstroom since June
2018.
[12] Col Senti
confirmed Mr Motshabi’s evidence that during February 2016 the
defendant requested for quotations from
various service providers
including the plaintiff to transport police trainees. He received
quotations from the plaintiff, Big
Sky Coaches, Lucia Transport and
Van Wyk Transport and forwarded them to the Human Resources
Development, National Office for financial
authority to procure
services of the preferred service provider. He received financial
authority (pages 24 and 25
supra
) to procure in the Northern
Cape Province. According to him this was not for a specific service
provider but to enquire if funds
were available to render the
service. Col Senti testified that Big Sky Coaches was the preferred
service provider. On 26 February
2016 he addressed an email to Mr
Motshabi (para 3
supra
). The purpose of this email (page 24)
was to give Letlhabile Coaches dates of departure, the times and the
routes in case they
were the successful service provider. According
to him page 24 of the bundle was not an approval because no order
form was issued.
He then requested for an order form from Supply
Chain Management and was informed that it could not be issued for
Letlhabile Coaches
because their tax clearance certificate had
expired. That was the reason Letlhabile Coaches was not procured. He
was then advised
to source alternative transport within the limited
time. Big Sky Coaches was ultimately approved as the service
provider.
[13] On 28
February 2016 Col Senti was from Bloemfontein when he received
information that Letlhabile Coaches’ busses
were already in
various pick-up points. He then conveyed the message that it was not
the approved service provider to transport
the trainees. He conceded
that the order form was not available for Big Sky Coaches at the time
in order to complete the procurement
process.
[14] Mr Piet
Mokoena, a member of the SAPS attached to the Supply Chain Management
since 01 October 2011, testified that during
February 2016 he was
deployed in Kuruman for Imbizo. Col Yolo was at the time in charge of
procurement. Mr Mokoena’s duties
include registering suppliers
on the defendant’s database, approving quotations and paying
the suppliers. Mr Mokoena testified
that on 27 February 2016 Col
Senti phoned him telling him that Col Yolo informed him that the
plaintiff’s quotation could
not be approved because its tax
clearance certificate had expired and an order number would not be
issued. Col Senti told him that
he would make other arrangements for
the transportation of the trainees.
[15] Mr Mokoena
explained the Supply Chain process that the end user requests for
quotations from service providers. After
receiving quotations he
sends them to the finance department for financial approval and then
to procurement for authorisation.
Once authorisation has been granted
Supply Chain would issue an order form to the end user who informs
the successful tenderer.
The service provider would then provide the
service according to the order form and thereafter issue an invoice
for payment. He
could not tell whether or not the order form was
issued to Letlhabile Coaches. On 01 March 2016 Mr Mokoena addressed a
letter to
Letlhabile Coaches the heading of which reads: “
DECLARATION
OF INTEREST: MS BELINDA MITCHELL
.” This letter was
concerned with Ms Mitchell’s relationship with Letlhabile
Coaches whilst she was allegedly employed
by the Department of
Education. He says he was requested by the department through
treasury to implement Central Supplier Database
in order to log onto
the website of DPSA and check all the suppliers’ profiles,
shareholders’ identity numbers and
whether they were state
employees or not.
That
concluded the case for the defendant.
[16] The issue
for determination is whether or not an agreement was concluded
between the parties namely, whether the plaintiff’s
offer was
accepted by the defendant. The plaintiff alleges that it complied
with the defendant’s procurement process. The
defendant insists
that no agreement was concluded by the parties and alleges that the
plaintiff’s tender was unsuccessful
because its tax clearance
certificate attached to the quotation had expired. The defendant
submits that no order number was issued
to the plaintiff and
therefore no agreement was concluded. Greenberg JA in
BOERNE
v HARRIS
[1]
‘
It
seems to me to follow that the letter, in order to be effective as an
exercise of the right of renewal, must unequivocally convey
to the
recipient, using ordinary reason and knowledge, that it is intended
to be such an exercise. It must leave no room for doubt.
The
recipient is not required to apply any special knowledge or ingenuity
in ascertaining the meaning of the letter. Thus if the
appellant had
chosen to write the letter in Chinese, or to convey his acceptance in
the form of a cross-word puzzle, except possibly
one that he who runs
may read, I think that the respondent would have been entitled to
refuse to attempt to translate, or solve
the puzzle contained in, the
letter and to disregard it. … And in considering how a
reasonable person would have construed
the letter, the Court must not
require the respondent to invoke the assistance of legal advisers,
any more than, in the hypothetical
cases I have mentioned, she would
have to enlist the aid of a Chinese interpreter or an expert in
cross-word puzzles. I leave out
of consideration the case where the
recipient, to the knowledge of the sender of the letter, is equipped
with the necessary knowledge
or ability.’
[17] James J
adopted the same approach in NICHOLS v STANLEY
[2]
where it was held:
‘
The reasonable
man only has doubts when it is reasonable to do so, and the offeror
must therefore be bound unless his doubt about
the meaning of the
acceptance is a reasonable doubt.’
[18] The court is
faced with two mutually destructive versions. Nienaber JA in
STELLENBOSCH
FARMERS WINERY GROUP LTD AND ANOTHER v MARTELL et CIE AND OTHERS
[3]
had this to say:
‘
[5]
On the central issue, as to what the parties actually decided, there
are two irreconcilable versions. So too on a number of
peripheral
areas of dispute which may have a bearing on the probabilities. The
technique generally employed by courts in resolving
factual disputes
of this nature may conveniently be summarised as follows. To come to
a conclusion on the disputed issues a court
makes findings on (a) the
credibility of the various factual witnesses; (b) their reliability;
and (c) the probabilities. As to
(a), the court’s findings on
the credibility of a particular witness will depend on its impression
about the veracity of
the witness. That in turn will depend on a
variety of subsidiary factors, not necessarily in order of
importance, such as (i) the
witness’ candour and demeanour in
the witness box, (ii) his bias, latent and blatant, (iii) internal
contradictions in his
evidence, (iv) external contradictions with
what was pleaded or put on his behalf, or with established fact or
with his own extra
curial statements or actions, (v) the probability
or improbability of particular aspects of his version, (vi) the
calibre and cogency
of his performance compared to that of other
witnesses testifying about the same incident or events. As to (b), a
witness’
reliability will depend, apart from the factors
mentioned under (a) (ii), (iv) and (v) above, on (i) the
opportunities he had to
experience or observe the event in question
and (ii) the quality, integrity and independence of his recall
thereof. As to (c),
this necessitates an analysis and evaluation of
the probabilities and improbabilities of each party’s version
on each of
the disputed issues. In the light of its assessment of (a)
(b) and (c) the court will then, as a final step, determine whether
the party burdened with the
onus
of proof has succeeded in discharging it. The hard case, which will
doubtless be the rare one, occurs when the court’s credibility
findings compel it in one direction and evaluation of the general
probabilities in another. The more convincing the former, the
less
convincing will be the latter. But when all factors are equipoised
probabilities prevail.’
[19] Rule 22
(2)
[4]
provides that the
defendant shall in his plea either admit or deny or confess and avoid
all material facts alleged in the combined
summons or declaration or
state which of the said facts are not admitted and to what extent and
shall clearly and concisely state
all material facts upon which he
relies.
[20] The
defendant denies that an agreement was concluded by the parties as
alluded to earlier. For this assertion it relies
on the following:
20.1
That no order form was issued to the plaintiff;
20.2
That the plaintiff’s tax certificate attached to its quotation
had expired; and
20.3
That Ms Mitchell, a member of the plaintiff, was also a government
employee at the time.
NO
ORDER FORM ISSUED
[21] Mr Motshabi
testified that under normal circumstances an order form would be
received before services had been rendered.
However, when the
defendant’s request for quotation is sent at short notice the
order form would be sent after services have
been rendered. He
mentioned an incident after the trip
in casu
when the
plaintiff had to pick up defendant’s trainees from Cape Town
and the order form was sent after the service had been
rendered. His
evidence was confirmed by Senti and Mokoena in this regard.
[22] Mr Motshabi
stated further that the plaintiff never received a document
explaining the procurement process from SAPS
and he did not attend a
course where the defendant explained its procurement process.
[23] Ms Phakama,
on behalf of the defendant, further put to Mr Motshabi that Senti
would say that page 24 was sent in order
to take note of the times,
he indicated that the document did not say ‘
please find
change of times
’. He added that Senti did not say that he
would communicate the final word but that the plaintiff should get in
touch with
Senti if they required more clarity. Ms Phakama put to Mr
Motshabi further that the reason the plaintiff’s bid was not
approved
was because it omitted to disclose that one of its members
was a government employee and that its tax certificate had expired.
This argument does not hold water taking into account the document
titled ‘
Declaration of Interest
’ signed by the
plaintiff dated 25 February 2016 and the fact that the defendant
failed to plead as such in its plea.
MS
MITCHELL’S ISSUE AND THE EXPIRED TAX CLEARANCE CERTIFICATE
[24] Mr Motshabi
testified that the document issued by the Commissioner and
Intellectual Property Commission (CIPC) was signed
at the time Ms
Mitchell was no longer its member. It was not signed to have her
removed as a member. He indicated that they applied
to have her
removed before 20 February 2016 and the application was approved. He
stated that he did not know how the process worked
as their auditors
attend to such issues. She was not a member of the CC as from 05
February 2016 although the CIPC document at
page 13 of the bundle was
signed on 20 February 2016 the application for her a member of the CC
from 02 August 2011 and was replaced
by a Mr Fabian Earl Van Heerden
on 05 February 2016. At the time the quotation was submitted to the
defendant on 25 February 2016
she was no longer a member. Her removal
had already been granted.
[25] Notably, the
issue raised by the defendant concerning Ms Mitchell as well as the
tax certificate that had expired were
also not pleaded. When it was
put to Mr Motshabi that the defence witnesses would testify that the
plaintiff’s quotation
was unsuccessful because its tax
certificate had expired and that it omitted to declare that one of
its directors was a government
official he said that from the
document titled ‘
Declaration of Interest
’
completed and signed on 25 February 2016, Ms Mitchell was not the
plaintiff’s member. Neither Col Senti nor Mr Mokoena
testified
that the plaintiff’s quotation was not approved because Ms
Mitchell was a government official and also the member
of the
plaintiff.
[26] Col Senti
testified that the defendant could not issue an order form to the
plaintiff because it submitted an expired
tax certificate. He
confirmed that was the only information that was conveyed to him at
the time. He denied that it was an afterthought
though he could not
explain why it was raised for the first time in his evidence. He
stated that he was unaware that it was not
mentioned in the
defendant’s plea.
[27] On the other
hand Mr Mokoena did not have first-hand knowledge of the expiry of
the tax certificate. On 01 March 2016
he addressed a letter to
Letlhabile Coaches titled ‘
Declaration of Interest: Ms
Belinda Mitchell’
as alluded to earlier. The third
paragraph of this letter states:
‘
Whilst waiting
the respond, the company will never be afforded an opportunity for
quotation at any South African Police Service
Supply Chain Management
offices and failing to provide the respond the matter will be
reported directly to National Treasury.’
[28] Mr Mokoena
testified that the said letter related to the Central Supplier
Database, a new system that was to be implemented
from 01 April 2016
that updated the suppliers’ information on a daily basis and
did not concern the plaintiff’s tax
clearance certificate. What
is surprising is that the document signed on 25 February 2016 by the
directors of Letlhabile Coaches
accompanying the quotation was
attached to this letter. However, he denied that his letter of 01
March 2016 related to the service
that had to be delivered by the
plaintiff on 28 February 2016 but a general letter in order to
correlate information with the CSD
process. His assertion that the
tax certificate was a non-issue at that stage is absurd considering
that he attached SBD 4 (the
document attached by the plaintiff to the
bid documents) regarding the procurement process of 25 February 2016.
He further testified
about a procurement process which he said was on
the prescripts of their department on request yet this document was
not discovered.
When he was asked why it was not placed before court
taking into account that the defence relied on it he said it was not
requested
from him.
[29] Mr Mokoena
testified that he noted that the plaintiff’s tax clearance
certificate had expired and that concerned
him as the Head of
Procurement. However, he did not raise it in his letter to the
plaintiff. His explanation was that it did not
concern the
plaintiff’s tax clearance certificate but the member of the
plaintiff who was allegedly also employed by the
government. It is
clear in my view that this letter was addressed to the plaintiff to
clarify something in relation to the service
that was to be rendered
by the plaintiff and was not a general letter as he testified. He
conceded that the letter had nothing
to do with the plaintiff’s
tax clearance certificate at the time.
[30] Mr Mokoena
also could not explain why the plaintiff’s tax clearance
certificate was not raised in the plea. He
stated that he had come to
court to testify about the procurement process as that was all he
knew. He could not explain why Col
Senti phoned him instead of Col
Yolo who was in his office in possession of the plaintiff’s
file.
[31] It is
undisputed that the issue of the tax clearance certificate was never
brought to the attention of the plaintiff
before and after the
delivery of the services. No explanation was forthcoming from the
defence witnesses as to why this was not
done. The letter dated 01
March 2016 is the only letter addressed to the plaintiff which did
not mention anything about the tax
certificate but that the plaintiff
had failed to disclose that Ms Mitchell was also a government
employee. Notably, no document
was supplied by Supply Chain
Management stating the reason why the plaintiff’s bid was
unsuccessful. Mr Motshabi testified
that it was a mistake that an
expired one was attached otherwise the plaintiff was compliant. None
of the defence witnesses could
explain why this issue was not raised
with the plaintiff at any stage. The only reasonable inference that
can be drawn from the
defendant’s conduct is that this was an
afterthought. If it was an error not to raise these defences with the
plaintiff the
defendant could have applied for an amendment of its
plea. See
CIRCLE
CONSTRUCTION (PTY) LTD v SMITHFIELD CONSTRUCTION
[5]
[32] The only
issue that is left for determination is whether pages 24 and 25
constitute acceptance of the agreement between
the parties. The SCA
as per Wallis JA (Farlam JA, Van Heerden JA, Cachalia JA and Leach JA
concurring) in
NATAL
JOINT MUNICIPAL PENSION FUND v ENDUMENI MUNICIPALITY
[6]
dealt with the interpretation of the words in a document thus:
‘
[18]
Over the last century there have been significant developments in the
law relating to the interpretation of 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 business-like 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.’
ORDER FOR SPECIFIC PERFORMANCE
[33]
Our law is clear that a plaintiff is entitled to claim specific
performance in the circumstances
where it is possible to do so. Innes
J in the case of
FARMER’S CO-OP SOCIETY (RE) v BERNY
1912 AD
343
350
held:
‘
Prima Facie
every party to a binding agreement who is ready to carry out his own
obligation under it has a right to demand from
the other party so far
as it is possible, a performance of his undertaking in terms of the
contract. As remarked by Kotze CJ in:
Thompson v Pullinger (1894)1 OR
at p301, the right of plaintiff to the specific performance of a
contract where the defendant is
in a position to do so is beyond all
doubt’. It is true that Courts will exercise a discretion in
determining whether or
not decrees of a specific performance will be
made. They will not, of course, be issued where it is impossible for
the defendant
to comply with them. And there are many cases in which
justice between the parties can be fully and conveniently done by an
award
of damages. But that is a different thing from saying that a
defendant who has broken his undertaking has the option to purge his
default by the payment of money. For in the words of Storey (Equity
Jurisprudence, sec 717 (a), ‘it is against conscience
that a
party should have a right of election whether he would perform his
contract or only pay damages for the breach of it’.
The
election is rather with the injured party, subject to the discretion
of the Court
[7]
.
It is evident in the
present case that specific performance is possible. For that reason,
the Plaintiff has elected to approach
the court to enforce the
agreement
for
payment of R414 700-00 arising from repudiation of an alleged
agreement entered into by the parties
.
[34]
SPECIFIC
PERFORMANCE AS REMEDY FOR BREACH
CHRISTIE’S LAW
OF CONTRACT IN SOUTH AFRICA
7ed
(2016) at 616 states
:
‘
The remedies
available for a breach or, in some cases, a threatened breach of
contract are five in number: specific performance,
interdict,
declaration of rights, cancellation, damages. The first three may be
regarded as methods of enforcement and the last
two as recompenses
for non-performance. The choice among these remedies rests primarily
with the injured party, the plaintiff,
who may choose more than one
of them, either in the alternative or together, subject to the
overriding principle that the plaintiff
must not claim inconsistent
remedies and must not be overcompensated’.
[35] Mr Motshabi
testified that the letter of 26 February 2016 was an acceptance of
the quotation. Interpretation of a document
is on an objective basis.
If one has regard to page 24 and 25 read together there is no other
reasonable person who would have
understood it otherwise than being
an acceptance of the offer. An explanation that page 25 was an
internal document does no hold
any water because Col Senti testified
that he could not remember why he attached it to the letter he
addressed to Mr Motshabi.
Considering that there was no communication
to the plaintiff telling him that there was non-compliance with his
documents and so
his quotation was not approved.
[36] Col Senti
conceded that the email he sent to Mr Motshabi on 26 February 2016
read with page 25 would reasonably have
led one to conclude that the
quotation was approved. The two letters were, according to him, clear
and unambiguous. The letter
further indicated that Col Senti should
be contacted for further clarity. Nothing in the said letter required
any clarity. Both
the plaintiff and Col Senti understood that the
confirmation that was awaited from Head Office was the order number.
The version
that was put to the plaintiff and its witnesses
contradicted what was stated in the plea. Col Senti concedes further
that the handwritten
inscription on page 25 would have induced the
plaintiff to believe that the quotation was approved. Based on this
he could not
blame the plaintiff for having dispatched busses to the
various pick-up points as nothing was communicated to them up to that
point.
[37] I have no doubt in
my mind that the plaintiff managed to prove its case on a balance of
probabilities. A valid agreement was
concluded between the parties
which the defendant repudiated. The plaintiff fully complied with the
defendant’s procurement
process.
[38] On the other
hand the defendant does not genuinely and seriously place the events
in dispute. It failed to show that
the plaintiff did not comply with
its procurement process. The applicant is therefore entitled to
enforce the agreement.
In
the circumstances I make the following order:
1.
The
defendant, the Minister of Police, accepted the plaintiff’s
offer and therefore a valid contract was entered into by the
parties.
The plaintiff, Letlhabile Coaches, succeeds on the merits.
2.
The
defendant is ordered to pay costs of suit.
BM
PAKATI
JUDGE-NORTHERN
CAPE DIVISION, KIMBERLEY
On
behalf of the Plaintiff:
Ms J Snyders
Instructed
by:
ENGELSMAN MAGABANE INC.
On
behalf of the Defendant: Ms NM Phakama
Instructed
by:
OFFICE OF THE STATE ATTORNEY
[1]
1949 (1) SA 793
(A) at 801
[2]
1962B(2) PH A29 (N)
[3]
2003 (1) SA 11
SCA para 5
[4]
Uniform Rules of Court
[5]
1982 (4) SA 726
(N) at 730
[6]
2012 (4) SA 593
(SCA) at 603F-604C para [18]
[7]
The Law of Contract in South Africa, 4
th
ed, by RH
Christie, p 607-608