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[2018] ZAGPPHC 97
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IDH Webb CC v Arc International Telecoms (Pty) Ltd and Others (13770/2018) [2018] ZAGPPHC 97 (19 March 2018)
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
Case
number: 13770/2018
NOT
REPORTABLE
NOT
OF INTEREST TO OTHER JUDGES
REVISED
In
the matter between:
IDH
WEBB
CC
APPLICANT
And
ARC
INTERNATIONAL TELECOMS (PTY) LTD
FIRST RESPONDENT
PHILSWA
PROJECTS (PTY) LTD
SECOND RESPONDENT
UBUNTU
BUSINESS ADVISORY CONSULTING
(PTY)
LTD
THIRD RESPONDENT
JUDGMENT
PRETOR/US
J.
(1)
This is an urgent application in which the applicant seeks relief
only against the first
respondent, directing the first respondent to
switch on the servers, allegedly the property of the applicant, that
are in the possession
of the first respondent. Furthermore to
interdict and restrain the first respondent from directly or
indirectly interfering or
tampering with the servers and to direct
the first respondent to provide the applicant with unhindered access
to the servers. It
is common cause that the relief sought is for a
final interdict.
(2)
An application to strike out certain paragraphs in the applicant's
replying affidavit was
issued by the first respondent and failing
this application to strike out, an application for a rejoinder was
argued. I have dealt
with both in a short judgment. The point
in
limine
by the applicant was also disposed of. I will now deal
with the merits of the main application .
THE
PARTIES:
(3)
The applicant is an internet-based company that specializes in the
provision of full internet
access, web design, e-mail, hosting and
data base solutions, domains, sub-domains and dynamic DNS. The
applicant has forty five
full time clients who depend on the
applicant to provide these services.
(4)
The second respondent is a company specializing in providing PBX and
SIP-based IP-PBX
systems for all centres and other service providers
and businesses.
(5)
The third respondent is an internal auditing, forensics and advisory
service.
The third respondent is a customer of the second respondent.
BACKGROUND:
(6)
The first respondent rented a rack at a 24-hour data centre, namely
Teraco Data Environments.
This rack can be divided and shared with
other entities
(7)
According to the applicant, the applicant and the first respondent
had entered into "an
informal oral agreement". The terms of
the agreement were that the applicant would share the rack space with
the first respondent,
the applicant would bear the costs for sharing
the rack space with the first respondent; the applicant was to
be responsible
for the technical support, maintenance and cost to
keep the server operational and that the applicant would have access
to the
server 24- hours a day and the first respondent would ensure
that the server is on 24-hours a day.
(8)
According to the applicant the first and third respondents entered
into an agreement
of which the applicant does not know the terms. A
dispute arose between the first and third respondents apparently as
the third
respondent alleged that the work done by the first
respondent was substandard. On 26 February 2018 the second respondent
received
a notice claiming that the second respondent was in arrears
with payment. The applicant avers that there is no dispute between
the applicant and the first respondent. As a result of the dispute
between the first, second and third respondents, the first respondent
turned the applicant's servers off on 23 February 2018, but the
servers were switched on again shortly afterwards. The servers
were
switched off again on 26 February 2018. The result is that the
applicant is unable to provide a service to its 45 customers
and has
already lost 17 customers due to not being able to provide the
service.
(9)
A letter of demand was sent on 26 February 2018 to the first
respondent, which
inter alia
demanded that the applicant's
servers be switched on before or on 27 February 2018, failing which
an urgent application would be
launched.
(10)
The only response from the first respondent was that the letter of
demand was sent to their
attorneys.
LEGAL
FRAMEWORK:
(11)
In order to succeed in obtaining a final interdict the applicant has
to prove a clear
right, that is a right clearly
established; an injury committed or reasonably apprehended and the
absence of any other satisfactory
remedy available to the applicant.
(12)
The clear right the applicant relies on is the informal oral
agreement entered into in
August 2017 that provided that it would
share rack space with the first respondent at the latter's cabinet in
Teraco's lsando Campus.
The further terms were that it would bear all
the necessary costs for technical support and maintenance costs to
keep the server
operational, which would cause it to have access to
the server 24 hours a day. The first respondent denied the existence
of the
agreement in the answering affidavit and set out that it had
at all material times only contracted with the second respondent.
(13)
The applicant's evidence is that most of the applicant's clients are
businesses and
professional people, who have since the servers have
been switched off, no access to their e-mails, internet or data
stored on
the servers. The applicant derives approximately R30 000
per month from its clients for the services provided. Due to the loss
of income the applicant will no longer be able to employ the two
employees. Therefor injury has been caused and stands to be caused
to
the applicant through the actions pf the first respondent. Despite
communicating with the first respondent the first respondent
refuses
to switch on the server until such time that the second respondent
has paid the unpaid invoices.
(14)
It is clear from the founding affidavit that the applicant does not
set out who represented
it once entering into the agreement. It is
only alleged in the replying affidavit that it was Mr Swart on behalf
of the applicant.
In the replying affidavit the applicant alleged
that the first respondent represented by Mr Smorthit offered to let
the applicant
share the shelves and Mr Swart had accepted the offer
on behalf of the applicant.
(15)
I have perused the e-mails referred to by the applicant in the
replying affidavit
and find that they were sent to and from
Openserve, Teraco and Philip Swart, with his email address that of
the second respondent
and not that of IDH Web CC. The emails between
Mrs Bester, on behalf of IDH Web CC, to Mr Smorthit in May 2017
contained enquiries
regarding the first respondent's assistance and
service in connection with the storage of applicant's server. Once
more it is only
set out in the replying affidavit that Mr Smorthit
had been at all times fully aware that the first respondent were
providing storage
services to the applicant. The first time it is set
out that it is just one server belonging to the applicant, is once
more in
the replying affidavit.
(16)
It is trite that a party has to make out its case in the founding
affidavit and cannot
supplement it in the replying affidavit to
augment its case. The question the court has to deal with is whether
the agreement can
be inferred from the proved facts and circumstances
.
(17)
Rule 18(6) of the
Uniform Rules of Court
provides:
"A
party who in his pleading relies upon a contract shall state whether
the contract is written or oral, and when, where and
by whom it was
concluded, and if the contract is written a true copy thereof or of
the part relied on in the pleading shall be
annexed to the pleading."
In
Roberts
Construction Ltd v Dominion Earthworks Ltd
[1]
the
court found:
"Another
aspect of the latter must now be mentioned. Rule 18(6) does not in
terms refer to the case where the contract relied
upon in is implied.
It seems, however, a necessary corollary that
a
pleader could
hardly avoid disclosure of the fact that he is relying upon an
implied contract. Failure to state whether
a
contract is
written or oral would naturally lead to disclosure of the reason, and
describing "when, where and by whom it was
concluded" would
in many instances entail the setting out of the conduct relied upon."
(18)
According
to
Christie's
The Law of Contract in South Africa
[2]
the
court has to undertake a three stage enquiry. The first stage is
where the court has to decide, on the preponderance of probabilities
which facts have been established. The applicant, in the founding
papers, alleged that it was a term of the contract that it would
bear
all the necessary costs to share the rack space with the first
respondent. There is no indication as to what the amount would
be per
month and which services would be paid for. In the replying affidavit
Mr Swart contended that the applicant, at all times,
were willing to
pay for the cross connect, but had not done so as the first
respondent never furnished the applicant with an invoice.
(19)
It
is thus clear that in the founding affidavit the applicant had not
made the averment as to who represented the applicant and
who
represented the first respondent when they entered into the
agreement. Furthermore, it is not clear in the founding affidavit
as
to what the costs would be for the service rendered. There was no
indication as to which date would be the relevant date when
the
service would be supplied.
Christie
[3]
reiterates
that the law of contract is based on true agreement
"and
a
party
whose state of mind is 'on balance I think we are probably in
agreement' does not have
a
contract".
(20)
In
Boerne
v Harris
[4]
it
was held that if the conduct of the parties and the circumstances
surrounding the parties were not so clear, so unequivocal,
so
unambiguous that the parties were in agreement, then no contract
exists.
(21)
In
Landmark
Real Estate (Pty) Ltd v Brand
[5]
it
was held by Lazarus
"To
return to the question whether plaintiff acquired the mandate by
purchase or cession from Maximum. In summing up the test
for
a
tacit contract, Christie The Law of Contract in South Africa 2nd
ed at 99 says:
'In
order to establish
a
tacit contract, it is necessary to prove,
by the preponderance of probabilities, conduct and circumstances
which are
so
unequivocal that the parties must have been
satisfied beyond reasonable doubt that they were in agreement. If the
court is satisfied
on the preponderance of probabilities that the
parties reached agreement in that manner, it may find the tacit
contract established.
"'
(22)
In
Triomf
Kunsmis (Edms) Bpk v AE & Cl Bpk en Andere
[6]
Coetzee
J
found:
"In
die huidige geval word 'n finale bevel aangevra by kennisgewing van
mosie-prosedure . Hier is nie sprake van
slegs
'n tydelike bevel pendente lite nie en dit is by uitnemendheid ook
die soort geval waar die volgende stelling wat NESTADT
R in Shephard
v Tuckers Land and Development Corporation (Pty) Ltd (1)
1978 (1)
SA
173
(W) op 177 aanhaal, van toepassing is:
"It
is founded on the trite principle of our law of civil procedure that
all the essential averments must appear in the founding
affidavits or
the Courts will not allow an applicant to make or supplement his case
in his replying affidavits and will order any
matter appearing
therein which should have been in the founding affidavits to be
struck out.
"
Verder
aan:
"This
is not however an absolute rule. It is not the law of Medes and
Persians. The Court has
a
discretion to allow new matter to
remain in
a
replying affidavit, giving the respondent the
opportunity to deal with it in
a
second set of answering
affidavits. This indulgence, however, will only be allowed in special
or exceptional circumstances.
'"'
(23)
There can be no doubt and it is not in issue that the first and
second respondents
had entered into a written agreement. At all
material times Mr Swart represented the second respondent during the
conclusion of
the agreement. It was Mr Swart who on 23 February 2018
undertook to make payment of the outstanding amount on behalf of the
second
respondent to the first respondent after receiving the
suspension notice from the first respondent.
(24)
The emails annexed to the replying affidavit do not conclusively
prove that
these emails related to the applicant. There was no form
completed, similar to that completed on behalf of the second
respondent,
on behalf of the applicant which one would have expected
if there indeed existed an agreement between the applicant and the
first
respondent.
(25)
It is equally strange that, according to the applicant, it never
received an
invoice since using the services from October 2017 until
the server was switched off in February 2018. The applicant never
made
an attempt to enquire as to what it owed for the service
supplied by the first respondent. One would expect a party to an
agreement,
where payment for a monthly service is involved, to
ascertain what the amount would be. Furthermore, if no invoice was
forthcoming,
the applicant could have made enquiries. Here the
applicant seemingly accepted the service for months, without knowing
what amount
to pay or to enquire about it and not paying for the
service provided.
(26)
In
Amler's
Precedents of Pleadings
[7]
it
is said by the learned author:
''An
implied term arises by operation of Ja w, whilst a tacit term is an
unexpressed provision of the contract, derived from the
common
intention of the parties which is inferred from the express terms of
the contract and from the surrounding circumstances"
(27)
I have considered all the facts, lengthy arguments by counsel, as
well as the
decisions as mentioned above. In the present application
I cannot find that the applicant has proved on a balance of
probabilities
that the applicant and the first respondent had a
common intention that the applicant would rent the server from the
first respondent
if I apply the principles as set out in the
authorities discussed above.
(28)
I have considered the first respondent's counsels submissions
regarding costs
on a punitive scale, but cannot find that it is
justified in these circumstances.
(29)
In the result the application is dismissed with costs.
Judge
C Pretorius
Case
number
: 13770/2018
Matter
heard on
: 13 and 14 March 2018
For
the Applicant
: Adv Breytenbach
Instructed
by
: FJ Jordaan Inc
For
the Respondent
: Adv MW Verster
Instructed
by
: BMV Attorneys
Date
of Judgment
: 19 March 2018
[1]
1968(3)
SA 255 (AD) at p 262 A-B
[2]
61h Edition, page 88
[3]
Supra
page
88
[4]
1949(1) SA 793 (A)
[5]
1992(3) SA 983 (W) at 985 1-J
[6]
1984(2) 261 (WPA) at p269 B
[7]
LTC
Harms, 7th Edition at page 112