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[2017] ZAGPPHC 264
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Visser v Dinokeng Lofts (Pty) Ltd (86788/15) [2017] ZAGPPHC 264 (31 March 2017)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
CASE
NO: 86788/15
DATE:
31/3/2017
In
the matter between:
RUDOLF
VISSER
Applicant
and
DINOKENG
LOFTS (PTY)
LIMITED
Respondent
JUDGMENT
MALI
J
[1]
The applicant seeks payment of R343 441.76 together with interest.
The applicant is an adult male businessman, a resident and
a
citizen of Netherlands. He describes himself as a pigeon fancier who
actively participates in the sport of pigeon racing
at local and
international level. The applicant was also appointed by the
respondent as one of its international representatives
for the 2013
and 2014 racing season.
[2]
The respondent is the sponsor of
an international one loft
race.
Fanciers
from all over the world send their young pigeons to the respondent
for training to compete in local competitions. The owners
of
the winning pigeons are entitled to prize money as advertised
by the respondent.
[3]
During August 2014, the applicant entered the main race of 2013- 2014
racing season, organised and hosted by the respondent
on 24 August
2014 at the Gariep Dam, Pretoria North. He won the main race.
The respondent did not pay him the guaranteed
first prize of R500
000.00, instead paid him an amount of R156 558.24.
ISSUES
TO BE DETERMINED
[4]
The issues of determination in the
present matter are the interpretation
of
contract. This is to whether the respondent is liable to pay the
guaranteed first prize sum of R500 000.00 or was the respondent
entitled to adjust the sum in relation to the number of paid entries
received.
INTERPRETATION
OF THE CONTRACT
[5]
In Absa
Technology v Michael 's Bid a House
[1]
the court held
as
follows:
"
A court may not admit evidence as to what the parties intended it
to mean if that has the effect of changing the terms of which they
clearly agreed in writing."
[6]
In KPMG Chartered
Accountants v Securefin
[2]
it is held that first, the integration (or parol evidence) rule
remains part of our law. However, it is frequently
ignored by
practitioners and seldom enforced by trial courts. If a document was
intended to provide a complete memorial of a jural
act, extrinsic
evidence may not contradict, add to or modify its meanin
g
[3]
.
Second, interpretation
is
a
matter
of
law
and
not
of
fact
and, accordingly, interpretation is a matter for the court and not
for witnesses (or, as said in common-law
jurisprudence, it is not a
jury
question: Hodge M Malek (ed)
Phipson
on Evidence
(16
ed 2005) para 33-64). Third, the rules about
admissibility of evidence in this
.
regard do not depend on the
nature of the document, whether statute, contract or patent
[4]
Fourth, to the extent that evidence may be admissible to
contextualise the document (since 'context is everything') to
establish
its factual matrix or purpose or for purposes
of identification, 'one must use it as conservatively as
possible'
[5]
.
The time has
arrived for us to accept that there is
no merit in trying
to
distinguish between 'background circumstances' and 'surrounding
circumstances'. The distinction is artificial and, in addition,
both terms
.
are vague and confusing. Consequently, everything tends to be
admitted. The terms 'context' or 'factual matrix' ought to
suffice
[6]
[7]
In KPMG Chartered
Accountants (SA) v Securefin Limited and Another
[7]
Harms DJ stated;
"I
should, however, point out that once again much inadmissible evidence
was led in this regard. Whether
a
tacit term can be inferred
depends on the interpretation of the document and not on evidence."
[8]
It is common cause that the brochure advertising the
competition with indication of the prize money information
constitutes the
contract between the parties. The relevant clauses of
the contract read as follows:
"Main
Race- Total Prize Money: R1667.500.00
Main
Race Competition
Gariep
Dam -623 km- 24 August 2014
1.
R500 000.00
2.
R150 000.00
3.
R125 000.00
4.
R100 000.00
5.
R80 000.00
6.
R50 000.00
7.
R45 000.00
…
.
"Prize
Money Guarantee:
1.
Advertised Prize Money is based on 600 Paid Pigeons
2.
500 Paid Pigeons will pay out 85% of the advertised amounts
3.
400 Paid Pigeons will pay out 70% of the advertised amounts
4.
The 1
st Prize on the Main Race will stay the same and not
be
adjusted accordingly"
The
terms and conditions in this brochure and also the registration
and entry form contains the entire agreement between the
parties and
no additions to or amendments of this agreement shall be of any force
or
effect unless reduced
to writing and signed by or on behalf of the parties. The
payment of prize money
is at the
sole discretion of
Dinokeng
Lofts and may vary according to the number of registered entries.
Advertised Prize money is
calculated
on 600 paid
entries received. This
agreement with its terms and conditions shall be subject
to the laws of the Republic of South
Africa."
[9]
It has been submitted on behalf of the respondent that the
interpretation of the contract constitutes a dispute of fact which
the
applicant would have foreseen. The applicant could have brought
the matter by way of action as a result the Court is urged to refer
the matter for oral evidence. The respondent's submission that the
terms of the contract were confusing to the applicant and he
sought
advice from lawyers should be accepted by the court to support the
existence of the dispute of fact. I cannot agree with
this
contention, the exercise of seeking clarity on something does not
always equal to a dispute. It is apparent that the
applicant
obtained clarity and proceeded with the transaction on the agreed
contractual terms. The court is capable of disposing
this matter on
papers as they stand.
[10]
From the excerpts of contract stipulated above the applicant
submits that the contract is clear that he is entitled to R500 000.00
the guaranteed prize money. The discretion of the respondent is
applicable only to other prizes not the main race prize money.
The
applicant's submission in this regard is based on the fact that in
the contract at page 20 no
4
is
specifically underlined to emphasise that the said prize money is not
subject to any adjustments. It is not affected by
the number of
entries as submitted by the respondent.
[11]
The applicant's submission is that the terms of the contract
are only subject to variation when reduced to writing and signed for
by both parties as provided in the contract. According to the
respondent it sent an email correspondence to the applicant six days
before the race varying the terms of agreement.
The
email reads as follows:
"15
August 2017
Update
in connection with paid entries and possible pay-outs. As you are
well aware our pay-outs are calculated on the number of
paid entries
in the final race. At this time we cannot predict the number of
reserves that will be activated between today and
the main race. I
hope that we will be able to reach 325 paid entries. If this is
reached, the prize money pay-out will be as follows:
Main
race:
Position
Prize Money
1
R200 000.00
2
R57 000.00"
[12]
The respondent submits that it could not guarantee the prize
money because it depended on the number of entries. This is in total
contradiction of the terms of the contract underlined in number 4.
Respondent could not explain the rationale for the underlining
of 4. I am in full agreement with the applicant that the
respondent's discretion is reserved for other prizes.
[13]
If the intention of the contents of the email were to vary the terms
of the contract the respondent as the party introducing
the
variation would have ensured that the applicant signed for the
variation as provided for in the contract. This could
have occurred
before the applicant took part in the competition. It is trite that
the terms of the contract can be varied when
the parties agree in
writing. In fact, in the present matter the term providing for the
variation of the contract is found in the
last page of the brochure
marked as VR2 in the papers.
[14]
Furthermore even if the said email relied upon by the respondent was
received by the applicant it would not have the desired
effect by the
respondent. It intended to change the term of the contract without
following the agreed term of variation.
[15]
Having regard to the above the applicant has successfully
proved that he is entitled to the sum of
R500
000.00 being the guaranteed prize money
and he only received a sum of R156 558.24
[16]
In the result I make the following order;
16.1
The respondent shall pay the applicant
the sum
of R343 441.76 together with
interest, interest to be calculated at 10.5% from the date of
this order.
___________________
N.P.
MALI
JUDGE
OF
THE
HIGH
COURT
Counsel
for the Applicant:
Adv. Tolmay
Instructed
by:
Garratt Hugo & de Souza INC
Counsel
for the Respondent: Adv. Schoeman
Instructed
by:
Roestoff & Kruse Attorneys
Date
of Hearing:
13 February 2017
Date
of Judgment:
31 March 2017
[1]
2013
([ZASCA] 1026 at paragraph 20
[2]
2009
[ZASCA] 7
[3]
Johnson
v Leal 1980(3) SA 927 (A) at 943B
[4]
Johnson&
Johnson (Pty) Ltd v Kimberly-Clark Corp
1985 ZA 132
1985 ZASCA 132
,
1985 Burrell Patent Cases 126 (A)
[5]
Delmas
Milling Co Ltd v du Plessis 1955(3) SA 447 (A)
[6]
Van
der Westhuizen v Arnold 2002(6) SA 453 (SCA) paras 22 and 23 and
Masstores (Pty) Ltd v Murray & Roberts (Pty) Ltdv
[2008] ZASCA
94
; 2008(6) SA 654 (SCA) para 7
[7]
[2009]
2 All SA 523
(SCA) (13 March 2009)