About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: North Gauteng High Court, Pretoria
SAFLII
>>
Databases
>>
South Africa: North Gauteng High Court, Pretoria
>>
2018
>>
[2018] ZAGPPHC 720
|
|
Lipidsana DLO Products (Pty) Ltd v Kamfer (A620/2015) [2018] ZAGPPHC 720 (22 March 2018)
IN THE HIGH COURT OF SOUTH
AFRICA
(GAUTENG DIVISION, PRETORIA)
(1)
NOT REPORTABLE
(2)
NOT OF INTEREST TO
OTHER JUDGES
(3)
REVISED
Case No. A620/2015
22/3/2018
In
the matter between:
LIPIDSANA
DLO PRODUCTS (PTY)
LTD
APPELLANT
And
MONALI
KAMFER
RESPONDENT
JUDGMENT
MILLAR
AJ
1.
This
appeal is against the whole of the judgment and order of the learned
Magistrate Ndwandwe of the Pretoria Regional Court, delivered
on 30
January 2015 when the appellant was ordered to make payment to the
respondent of R 150 000,00 together with interest and
costs.
2.
The
facts are uncomplicated and largely common cause. On 18 May 2011, the
appellant and respondent entered into a written agreement
("the
agreement"). The agreement consisted of two parts. The documents
are pre-printed forms bearing the name of the
appellant. The first
was styled "Application as Principal" and the second as
"General Terms and Conditions of the
Lipidsana Multi-Level
Marketing System". The second is expressly referred to in the
first. Both were signed on the same day
and read together record the
terms of the agreement between the parties.
3.
The
first document contained the following clause:
[1]
"APPLICATION
LICENCE FEE TO ACT
AS
PRINCIPAL
FOR THE MARKETING AND SALE OF ALL LIPIDSANA PRODUCTS IN THE TERRITORY
OF THE REPUBLIC OF SOUTH AFRICA TO THE AMOUNT OF
ZAR 150,000,00 (ONE
HUNDRED AND FIFTY THOUSAND SOUTH AFRICAN RAND) FOR THE SUBSCRIPTION
PERIOD ENDING 26 MAY 2011 TO BE KEPT ON
TRUST PENDING THE ARRIVAL OF
STOCK AND THE INITIATION OF THE MARKETING PROCESS ON OR BEFORE 12
AUGUST 2011 BY DEFAULT OF WHICH
ALL MONIES RECEIVED WILL BE PAID BACK
WITHIN 48 HOURS FROM DATE THEREOF."
4.
The
12
th
of August 2011 arrived and the
"ARRIVAL
OF STOCK"
did not take place.
The appellant wrote to the respondent advising her of this and sought
an extension of the time for the arrival
of the stock to 26 August
2011. The appellant imposed a time limit on the respondent to reply
to this request viz. 15 August 2018
at 16h00 and stated
"If
we haven't received your decision by then via email it will be
conclusively presumed that you accept the extension for
the
initiation of the marketing process until 26 August 2011".
5.
The
respondent was overseas when this email was sent. She responded on
her return on 19 August 2011 and indicated that she did not
agree to
an extension and required her refund. The appellant denied receipt of
the respondent's email but nevertheless admitted
that her view was
communicated to the appellant by her husband.
6.
The
appellant contended that notwithstanding that it had not complied
with the agreement by the 12
th
of August, that nonetheless it was not liable to refund the
respondent.
7.
This
denial of liability was premised on a number of grounds:
7.1
The first was that the arrival of the
goods was delayed as a result of these being detained at customs;
7.2
The second was that by writing the
letter of 12 August and imposing the conditions that it had, that the
respondent's failure to
respond timeously had resulted in an agreed
extension; and
7.3
The third was that the appellant had
through her conduct, ratified the extension of the agreement.
8.
An
alternative was also pleaded to the effect that by virtue of the
respondent's conduct, a new "verbal agreement" on
the same
terms as the original agreement had come into existence.
9.
It
is not disputed that the goods had not arrived in the sense
contemplated between the parties. For purposes of the agreement
between the parties, the arrival of the goods could only have meant
that such goods were in the possession and under the control
of the
appellant and available for immediate sale. Such goods were clearly
not while they were detained by the authorities. The
appellants
request for extension is indicative of the appellant's understanding
of the agreement to be so.
10.
The
nature of the condition and the legal consequences flowing from this
will be determinative of this appeal.
11.
The
condition provides for "PENDING THE ARRIVAL" or put
differently, in anticipation of the arrival. This construction
clearly favours the condition being interpreted as a resolutive
condition.
"A
resolutive condition is one which provides for the dissolution of the
contract after an interim period of operation, dissolution
being
retrospective in its effect to the time of contracting.
[2]
"
12.
The
agreement became operable upon signature and it is common cause that
both the appellant and the respondent performed "in
anticipation" of the arrival of the stock. Were the condition
not resolutive and for example suspensive, neither party would
have
been required to perform under the agreement until such time as the
condition had been fulfilled
[3]
.
13.
The
condition being resolutive resulted in the agreement being void
ab
initio.
[4]
It was common cause between the parties and the evidence established
that the respondent at no stage accepted an invitation to
enter into
a new agreement, or to vary the terms of the agreement
before
the
condition was fulfilled.
14.
The
final leg of the appellants defence was that the respondent had
through her conduct after the fulfilment of the condition entered
into a new tacit agreement to extend the agreement . The evidence
does not support this and it is as a matter of law in any event
not
possible to revive a void agreement.
[5]
15.
Having
found that the condition was resolutive, a further aspect arises. In
regard to performance by the parties before the condition
was
fulfilled,
"any
payments made must be refunded with interest, and any property handed
over must be returned together with fruits and the
cession of any
actions that have accrued in respect of the property, and any
necessary disbursements on the property must be refunded.
[6]
"
16.
Ordinarily
the appellant would, like the respondent, be entitled to restitution
of what was paid during the existence of the contract.
In the present
case of the appellant however, the evidence was that what is alleged
to have been paid by it
in terms of
the agreement
was paid after the
condition had been fulfilled and the contract was no longer in
existence.
17.
In
the circumstances what was paid by the appellant cannot be said to
have been paid in terms of the contract and no refund would
as a
matter of law follow. The same cannot be said of the respondent whose
payment was made while the contract was still extant,
and she is
entitled to the repayment she claimed.
18.
In
the premises I propose the following order:
1.
The
appeal is dismissed with costs.
A MILLAR
ACTING JUDGE OF THE HIGH COURT
GAUTENG DIVISION, PRETORIA
I agree and it is so ordered.
H FABRICIUS
JUDGE OF THE HIGH COURT
GAUTENG DIVISION, PRETORIA
HEARD
ON:
22 MARCH 2018
JUDGMENT
DELIVERED ON:
22 MARCH 2018
COUNSEL
FOR THE APPELLANT: ADV AJ
SWANEPOEL
INSTRUCTED
BY:
VOGEL INCORPORATED
REFERENCE:
MR J VOGEL
COUNSEL
FOR THE RESPONDENT: ADV K FITZROY
INSTRUCTED
BY:
MUTHRAY AND ASSOCIATES
REFERENCE:
MR N MUTHRAY
[1]
Christie's Law of Contract in South Africa 7
th
Edition,
Lexis Nexis, 2016 at page 226 where it is stated:
“
Written contracts,
however, come before the court in their plain unvarnished form,
often with pleadings setting out conflicting
allegations of the
‘true meaning and intent' of the contract, and in order to
ascertain the common intention of the parties
the court must
interpret or construe the words they have used.”
[2]
The Principles of the Law of Contract, Kerr, Butterworths, 6
th
Ed. 2002 at page 449.
[3]
Christies supra page 166
"pending the fulfilment of
a
suspensive condition the contract is inchoate"
see
Joseph v Halkett
(1902) 19 SC 289 293.
[4]
Westmore v Crestanello
1995 (2) SA 733
(WLD) at 736A-B where
the court stated "/
do not readily comprehend how
a
purchaser could unilaterally waive
a
clause of
a
lapsed or defunct agreement (which by definition no longer
exists) and by so doing unilaterally miraculously breathe new life
into the corpse; and even worse, possibly ambush the unsuspecting
seller who, acting in the belief that the contract
means what it says, has resold the property in question"
and Amoretti v Tuckers Land and Development Corp 1980 (2) 330 at
332H to 333A.
[5]
Westmore
supra
at 738G quoting with approval from Halsbury's
Laws of England 4
th
Ed Vol 9 para 484
"Even where
a
condition precedent for formation of a contract is inserted
solely for the benefit of one party so that he may waive it he may
not do so after the expiry of the time limit for fulfilment of the
condition"
[6]
Christies
supra
page 172