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[2016] ZAGPPHC 886
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Visagé and Another v First Rand Bank Limited (A20/2014) [2016] ZAGPPHC 886 (30 September 2016)
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IN
THE HIGH COURT OF SOUTH AFRICA
/ES
(
GAUTENG
DIVISION, PRETORIA
)
CASE
NO: A20/2014
COURT
A
QUO
CASE NO: 53591/2012
DATE:
30/9/2016
Reportable:
No
Of
interest to other judges: No
Revised.
IN
THE MATTER BETWEEN
PIETER
JOHANNES VISAGÉ
N.O. 1
st
APPELLANT
MARIA
JACOBA VISAGÉ
N.O. 2
nd
APPELLANT
(In
their capacity as Trustees of the Conterberg
Boerdery
Trust)
AND
FIRST
RAND BANK
LIMITED RESPONDENT
JUDGMENT
PRINSLOO,
J
[1]
This is an appeal which came before us, with the leave of the learned
Judge
a quo
, against his decision, on 29 October 2014, to
dismiss an application by the appellants, as plaintiffs, in their
representative
capacities as trustees of the Conterberg Boerdery
Trust ("the trust") to amend their particulars of claim in
an action
which they had instituted against the respondent, as
defendant.
[2]
Before us, Mr Maritz SC, with Mr Maritz, appeared for the appellants
and Mr Dreyer SC, with Mr Badenhorst SC, appeared
for the
respondent.
Brief
synopsis
[3]
The first appellant, Mr Pieter Johannes Visagé, is an
enterprising individual. At all relevant times, he was in
charge of, and attached to, a number of entities described by the
appellants as "the Visagé group".
For
example, he was a director of V8 Cattle Ranch (Pty) Ltd ("V8"),
a trustee of the trust, which was a shareholder in
V8, a member
and/or shareholder of and in Topmel CC, Seahawk Traders 5 (Pty)
Ltd, Seahawk Traders 6 (Pty) Ltd and City Square
Trading 802 (Pty)
Ltd (of these four entities, he was the sole director and/or managing
member) and, finally, a trustee of V2 Koop
en Verkoop trust.
[4] At
all relevant times, the Visagé group was under the direct
control of the first appellant.
[5] At
all relevant times, the Visagé group, to the knowledge of the
respondent, was involved in the development of a large
project, known
as the "Green Gold Nature Reserve and Nature Estate"
project ("the Green Gold project").
[6]
The Green Gold project was intended to consist of an impressive
property development on some 2 500 hectares of land belonging
to
some of the Visagé group entities and situated in the
Barberton/Nelspruit (Mbombela) area.
The
development would include a number of inns or lodges ("herberge")
with 3, 4 and 5 star ratings as well as a "herberg"
for back-packers.
There
would be a caravan park, swimming baths, restaurants, shops, a
petrol filling station, hiking routes, a little church
for weddings
and culture towns. There would also be 600 erven, to be
developed into estate homes and about 100 penthouses.
[7]
The business plan of the Green Gold project is attached to the
particulars of claim which the appellants sought to introduce
by way
of an amendment, turned down by the learned Judge
a quo
.
[8]
There was an understanding between the entities comprising the Visagé
group that each entity would make its fixed property
or properties
available to be part of the Green Gold project, in exchange for a
pro
rata
share of the projected profits.
The
projected net profit would be something in the order of
R1,208 million. The projected net profit to be
received
by the trust, would be some R266 million.
[9]
Importantly for present purposes, V8 was the owner of the largest and
most strategically situated properties to form part of
the Green Gold
project: these included the remaining extent of the farm Jerusalem
Kopje, remaining extent of the farm Rains Vale
and portion 1 of
the farm Rains Vale. These properties of V8 would house most of
the infrastructure and facilities of the
project and would also have
to be utilised in order to secure the necessary funding for the
project.
Without
V8, the project could not become a reality. It is alleged in
the particulars of claim (as sought to be amended) that
the
respondent was at all relevant times aware of this state of affairs.
[10]
In 2008, the respondent instituted proceedings in this court against
V8, aimed at calling up a notarial bond over some Holstein
cattle in
order to collect monies payable to the respondent by some of the
Visagé group entities.
These
proceedings, under case number 23660/2008, with the respondent as
applicant and V8 as respondent, were settled between those
parties in
the form of a written deed of settlement ("the settlement
agreement") entered into on 10 June 2008.
Perhaps
understandably, the first appellant, Mr P J Visagé,
signed the settlement agreement on behalf of
V8.
[11]
The provisions of the settlement agreement are directly relevant for
purposes of the adjudication of this dispute, and will
be revisited
later in this judgment. The settlement agreement was also
attached to the (to be) amended particulars of claim,
as
annexure "B".
[12]
Later in 2008, under case number 38065/2008, the respondent, alleging
that V8 had failed to comply with the terms of the settlement
agreement instituted, as applicant, winding up proceedings
against V8.
V8
entered an appearance to defend, and the opposed liquidation order
was set down for hearing on 14 September 2009.
[13]
In the (to be) amended particulars of claim (hereinafter simply
referred to as "the particulars of claim") the appellants,
as plaintiffs, allege that there was a dispute between the parties
about the correct interpretation of the settlement agreement
and,
more particularly, as to when certain payments, prescribed in the
payment regime contained in the settlement agreement, were
due.
[14]
The deponent to the founding affidavit in the liquidation application
was Mr C A Verster ("Verster"),
and the
opposing affidavit was signed by Mr P J Visagé
("Visagé").
[15]
In the opposing affidavit, mention was made of monies payable to
entities in the Visagé group by the state flowing from
land
claims which had been settled. It is not disputed that an
amount of some R3 149 950,00 had to be paid by the
state in
respect of movable property which formed part of these settled land
claims. These monies would be available to settle
the balance
still outstanding in respect of the settlement agreement, which came
to some R2,3 million. It is alleged in the
particulars of claim
that the payment of the amount of R3,149 million had already
been approved before 11 September 2009.
The land claims
were not related to the properties which would comprise the Green
Gold project.
[16]
In the particulars of claim it is alleged that on or about 11
September 2009, Visagé, as the representative of the Visagé
group, including the trust and V8, told Verster that the state had
approved the payment of the R3,149 million from which the
full
balance outstanding in respect of the settlement agreement could be
paid. The allegation is made that Visagé
suggested to
Verster that, in these circumstances, it would not make sense to
proceed with the liquidation application and, further,
that Ms Lidia
Pretorius of the office of the Premier of Mpumalanga, would contact
Verster to confirm the date when the payment
would be made. It
is alleged that Verster told Visagé that he could relax.
[17]
Crucially, it is alleged in the particulars of claim that on
11 September 2009, and in Pretoria, an oral agreement was
entered into between Visagé (in his various representative
capacities aforesaid) and Verster ("the oral agreement")
the terms of which are crafted as follows in the particulars of
claim:
"17.1.1 Dat by ontvangs van 'n skrywe van die Premier van die
Mpumalanga Provinsiale Regering waarin bevestig word wanneer
die
bedrag van R3 149 950.00 uitbetaal sal word, 'n ooreenkoms
opgestel en 'n bevel van die hof gemaak sou word op 14
September 2009
tot die effek dat die Visagé groep die uitstaande balans nog
verskuldig aan verweerder uit hoofde van die
skikking (aanhangsel 'B'
hiertoe) ten volle sou vereffen teen uitbetaling van die grond eis;
17.1.2 Dat indien die skrywe nie tydig ontvang word nie, slegs 'n
voorlopige (en nie 'n finale likwidasiebevel) aangevra sou word.
17.2 Dit was 'n stilswyende, alternatiewelik geïmpliseerde
beding van die ooreenkoms dat die aansoek vir 'n finale bevel in
ieder geval uitgestel sou word en dat V8 se regsverteenwoordigers nie
die hof hoef by te woon op 14 September 2009 nie."
[18]
The only reasonable inference to be drawn from the tenor of the
particulars of claim, although it is not specifically stated,
is that
the letter was not received timeously from the Premier.
Nevertheless, it is alleged that Visagé arrived at
court on
14 September without legal representatives with a view to
signing the agreement foreshadowed in paragraph 17.1.1
of the
particulars of claim which I quoted so that it could be made an order
of court alternatively, so one has to infer, to oversee
the granting
of a provisional liquidation order as foreshadowed in 17.1.2.
It is
alleged that Verster was not at court for the occasion, but Visagé
spoke to the respondent's counsel (applicant in
the liquidation
application) informing him of the oral agreement which had been
entered into. Counsel nevertheless proceeded
to ask for a final
order. This is borne out by a copy of the transcript of the
proceedings forming part of the papers.
For present purposes, I
suggest no impropriety on the part of counsel. Visagé
attempted to appear on behalf of V8
but the learned Judge informed
him that he was not entitled to appear as a lay-person to present a
litigant. This is also
borne out by the record and the
transcript of the proceedings. A final liquidation order
was granted.
[19]
It is alleged in the particulars of claim that the state duly paid
the amount of R3 149 950,00 on 20 October 2009,
but well
after the 14 September liquidation of V8.
[20]
It is alleged in the particulars of claim that, as a result of the
liquidation of V8, the Green Gold project could not proceed
and
assets of the entities comprising the Visagé group, including
the trust, were sold on a forced sale basis.
[21]
The basis of the damages action instituted by the appellants (as
plaintiffs) against the respondent (as defendant), as described
in
the particulars of claim, is that the respondent acted in breach of
the oral agreement, alternatively of a legal duty, when
moving for a
final liquidation order as it was in the contemplation of the parties
that in the event of a final liquidation of
V8, the Green Gold
project would come to an end with resultant loss of the anticipated
profits which would flow from that project.
[22]
It was in the course of this litigation that the amendment of the
particulars of claim was sought, opposed by the respondent
and
refused by the court
a quo
.
[23]
So much for the brief synopsis.
The
wording of the settlement agreement
[24]
As I mentioned, when the respondent (as applicant) instituted
proceedings against V8, in 2008, to recover certain dues and
to call
up a notarial bond in the process, the parties entered into the
settlement agreement on 10 June 2008 with the preamble
thereof
stipulating that the parties "have reached an agreement
regarding re payment of the indebtedness of the respondent
in
this action as well as the indebtedness of various other companies
and trusts under the control of Mr P J Visagé".
[25]
The settlement agreement stipulates that V8 was indebted to the
respondent at the time to the tune of some R5 million
(round
figures) in respect of three separate accounts, identified in the
settlement agreement, and a number of other accounts reflecting
indebtedness by V8 to the respondent's Wesbank Division.
Moreover,
there are details reflecting the indebtedness of six of the entities
forming part of the Visagé group, which I
have mentioned, in
relatively smaller amounts. The trust is one of these
entities. It is also stipulated that the trust
is indebted to
the Wesbank Division in certain amounts.
[26]
In paragraph 3 of the settlement agreement, Visagé, in his
personal capacity as well as in his capacity as trustee of
the trusts
listed and director of the other entities mentioned, unconditionally
accepts the indebtedness mentioned above.
[27]
In paragraph 4 of the settlement agreement provision is made for a
payment regime, prescribing substantial monthly payments
to be made
consecutively during the months June, July, August, September and
October 2008.
[28]
The last subparagraph of paragraph 4, paragraph 4(g), contains
provisions which turned out to be of particular importance for
present purposes:
"(g) the then outstanding balances on the loan accounts in name
of the respondent (accounts number: […]2 and […]1)
as
on 10 October 2008 will be normalised and normal monthly
instalments in terms of the agreement of loan will be payable
until
such time as the loans have been repaid in full. This is
however subject to the satisfaction of applicant's normal
credit
criteria on 10 October 2008 and at the applicant's sole
discretion."
These
two accounts are listed in paragraph 1(b) and 1(c) as part of V8's
indebtedness and they reflect a combined debt (in round
figures) of
some R4 million with interest thereon to be calculated from 3
June 2008.
[29]
Clause 5 of the settlement agreement deals with arrear and
outstanding amounts due to the Wesbank Division including provision
for consecutive monthly payments over the aforesaid months of June to
October 2008.
[30]
Towards the end of the settlement agreement one finds paragraphs 7
and 10, the contents of which represent the basis of the
respondent's
opposition to the amendment:
"7.
Should any payments in terms of this agreement of settlement not be
made on due date, the full amount of the indebtedness will
immediately become due and payable and applicant will be entitled to
proceed with action against the respondent, Mr P J Visagé
as
well as the Trusts and companies listed above for the recovery of the
full outstanding amount of the indebtedness."
(I
will refer to this as "clause 7" or as "the
acceleration clause".)
"10.
This agreement constitutes the whole agreement between the parties
and no variation, amendment or cancellation hereof will be valid
and
binding unless it is reduced to writing and signed by all the parties
hereto."
(I
will refer to this as "clause 10" or "the
non variation clause".)
[31] I
turn to the respondent's objection to the amendment, which led to the
resultant application by the appellants to amend the
particulars of
claim and the dismissal thereof by the learned Judge
a quo
.
The
respondent's opposition to the amendment and the main thrust of the
respondent's case
[32]
The
crux
of the respondent's case is embodied in the following
paragraphs of the formal notice of objection to the amendment:
"1.6 the plaintiffs rely in paragraph 17 of the proposed amended
particulars of claim, on an alleged oral agreement entered
into
between the first plaintiff on behalf of the 'Visagé Groep'
including V8 and the trust (
my note
: should have added 'and
the defendant'), the terms of which amended the payment obligations
of
inter alia
V8 and the trust, prescribed in the settlement
agreement and in particular clause 7 of the said agreement.
(
My note
: clause 7, of course, is the acceleration clause.)
1.7 Clause 10 of the settlement agreement (annexure 'B') prescribes
that no subsequent agreement amending the particulars of an
agreement
between the parties shall be valid unless it is in writing and more
particularly, no variation of any of the terms of
the settlement
agreement shall be valid, unless in writing;
1.8 there is no allegation in the amended particulars of claim that
the parties agreed to amend clause 10 of the settlement agreement
and
consequently, the parties are bound by the non-variation clause as
stipulated in clause 10. The provision of clause 10
renders the
alleged subsequent oral agreement, a nullity;
1.9 the entire cause of action as pleaded by the plaintiffs in their
particulars of claim is dependent on the 'oral agreement'
the terms
of which appears in paragraph 17 of the proposed amended particulars
of claim;
1.10 it is the plaintiffs' case set out in the amended particulars of
claim, that Mr Verster acting on behalf of the defendant
failed
to comply with the terms of the oral agreement which eventuated in a
final liquidation order of V8. The final liquidation
constitutes the causation of the damages as claimed by the plaintiffs
on behalf of the trust;
1.11 in the premises the plaintiffs' particulars of claim do not
disclose the cause of action and will be excipiable on the grounds
as
set forth herein."
[33] I
add that there are other "objections" advanced relating to
suggested conflicting terms of the oral agreement, the
alternative
"legal duty" relied upon in the particulars of claim and
purported non compliance with the requirements
of rule 18(10)
dealing with proper quantification of the amounts claimed. None
of these additional "objections",
although also mentioned
in heads of argument, were advanced with any force during the
proceedings before us, neither were they
dealt with in the judgment
of the court
a quo
. I am, in any event, of the view
that there is no merit in these additional "objections" and
the argument based
on non compliance with rule 18(10), which is
probably ill founded in any event because quantification of the
amounts
were pleaded in some detail, falls to be remedied in terms of
the rule 30 procedure, if applicable. In the result, I
say
no more about these additional arguments.
[34]
The true position is that the respondent's case is based on the
principle that where a written contract contains a non variation
clause (like clause 10 in this case) any purported subsequent oral
agreement seeking to amend the written terms of the contract
is
rendered unenforceable and a nullity by the provisions of the
non variation clause.
This
is known as the "Shifren principle" which is a reference to
S.A. Sentrale Ko op. Graanmaatskappy Bpk. v Shifren en
Andere
1964 4 SA 760
(AD).
The
learned Chief Justice says the following at 766G 767C:
"Waar partye so 'n bepaling in hul kontrak ingelyf het, d.w.s.
'n bepaling wat nie slegs ander bedinge nie, maar ook homself
teen
mondelinge wysiging heet te beveilig, kan ek geen rede vind waarom
die een party nie die ander daaraan gebonde kan hou nie.
Hul
klaarblyklike doel met so 'n bepaling is om te waak teen die geskille
en bewysmoeilikhede wat by mondelinge ooreenkomste kan
ontstaan.
Om albei daarteen te beskerm kom hulle uitdruklik ooreen dat
mondelinge wysigende ooreenkomste, ook wat die
verskansende beding
self betref, al word hul
animo contrahendi
aangegaan, tussen
hul van nul en gener waarde sal wees. Indien 'n party, uit
hoofde juis van 'n mondelinge wysiging, belet
sou word om hom op so
beding te beroep, sou ons hier met 'n soort kontrak te doen hê
wat sonder meer nie deur 'n hof afgedwing
word nie. Dit sou 'n
opvallende afwyking wees van die elementêre en grondliggende
algemene beginsel dat kontrakte wat
vryelik en in alle erns deur
bevoegde partye aangegaan is, in die openbare belang afgedwing word.
... Dit is geen
antwoord hierop om aan te voer dat
dieselfde van die latere mondelinge ooreenkoms gesê kan word
nie. Dit staan op 'n
ander voet, want die partye het self hul
eie bevoegdheid aan bande gelê deur hulle aan 'n formele
vereiste te bind, en vooruit
bepaal dat so 'n ooreenkoms nie
afgedwing kan word nie. Deur so 'n ooreenkoms ten spyte daarvan
in stand te hou, sou die
hof aan die party wat hom op ongeldigheid
beroep, juis dié voordeel ontneem wat hy met die verskansende
bepaling vir homself
wou verseker en waarop hy luidens daardie
bepaling geregtig is. Dit gaan ook nie op om te beweer dat dit
strydig met die
openbare belang sou wees om so 'n beperking te erken
nie. Die beperking sluit nie kontraktuele vryheid uit nie.
Die
partye sou hul kontrak nog na willekeur kan wysig, mits hulle aan
die self-opgelegde formele vereiste voldoen.
Om genoemde redes moet die eerste vraag hierbo genoem, nl. of hierdie
kontrak mondeling gewysig kan word, na my mening ontkennend
beantwoord word."
[35]
In
Van Tonder en 'n Ander v Van der Merwe en Andere
1993 2 SA
552
(WLD), the learned Judge held that an oral agreement aimed at
extending the payment obligations of one of the parties amounts to
an
amendment of the written agreement and upheld the Shifren principle.
At 555H J the following is said:
"Na my oordeel is hierdie betoog korrek. 'n Vertolking van
artikel 1(1) wat daaraan die betekenis gee dat 'n latere
wysiging van
die voorwaardes van betaling nie op skrif hoef te wees nie, kan nie
die posisie verander waar die partye ooreengekom
het dat so 'n
wysiging skriftelik moet wees nie. In laasgenoemde geval
is die benadering van die
Shifren
-saak van toepassing.
Daar kan nie bevind word dat 'n uitstel om betaling nie die
voorwaardes van betaling in die skriftelike
stuk wysig nie. So
'n bevinding sal bloot sofistery wees. Die beweerde mondelinge
ooreenkoms waarop die eerste en tweede
respondente steun, wysig die
skriftelike ooreenkoms. Ingevolge klousule 10 moes dit op skrif
gestel en deur die partye of
hulle gevolmagtigde verteenwoordigers
onderteken gewees het om bindend te wees. Dit is nie gedoen
nie. Gevolglik kan
die respondente nie daarop as verweer steun
nie."
The
reference to "artikel 1(1)" refers to the provisions of the
General Law Amendment Act 68 of 1957 which had been interpreted
as
meaning that the provisions in a deed of sale relating to the manner
of payment, constitute material provisions of the deed
of sale of
land and had to be in writing for purposes of the provisions of
section 1(1) – see
Van Tonder
at 555B D.
This is not directly relevant for present purposes.
[36]
The learned Judge
a quo
, as did the learned Judge in
Van
Tonder
, also referred to
Venter v Birchholtz
1972 1 SA 276
(AA) and also referred to
Brisley v Drotsky
2002 4 SA 1
(SCA).
[37]
The learned Judge
a quo
found that the oral agreement was
aimed at amending the settlement agreement so that it flew in the
face of clause 10. The
learned Judge did so in the following
terms:
"I am bound by the decisions referred to
supra
, relating
to the validity of a non-variation clause. I am of the view
that the purpose and effect of the 11 September
2009 agreement
was to extend or to postpone V8's payment obligations, which
constitutes an amendment or variation of the material
terms of the
settlement agreement which came into existence on 10 June 2008
including the postponement of the execution proceedings
in terms
thereof."
In the
result, so it was held by the learned Judge, the particulars of
claim, as amended, would be excipiable because it would not
disclose
a cause of action. Consequently, the application fell to be
dismissed.
In
considering whether the amendment of a pleading would render such
pleading excipiable for failure to disclose a cause of action,
the
law relating to exceptions comes into play
[38]
It was common cause before us, that the principles to be applied by
courts considering exceptions, are directly relevant for
purposes of
deciding this dispute.
[39]
In dealing with the provisions of rule 23 under the heading "pleading
lacking averments" the learned author, Harms,
Civil Procedure
in the Superior Courts
, says the following at B 165: (I only
quote extracts and also omit references to the authorities listed in
a number of footnotes):
"An over-technical approach should be avoided because it
destroys the usefulness of the exception procedure, which is to weed
out cases without legal merit. If evidence can be led which can
disclose a cause of action or defence alleged in a pleading,
that
particular pleading is not excipiable. A pleading is only
excipiable on the basis that no possible evidence led
on the
pleadings can disclose a cause of action or defence. Causes of
action are not in the first instance dependent on questions
of law.
They require the application of legal principle to a particular
factual matrix. The test on exception is whether
on all
possible readings of the facts no cause of action is made out.
It is for the excipient to satisfy the court that the
conclusion of
law for which the plaintiff contends cannot be supported upon every
interpretation that can be put upon the facts.
... Unless
an exception is taken for the purpose of raising a substantive
question of law, which may have the effect of settling
the dispute
between the parties, an excipient should make out a very clear case
in order to succeed. Exceptions are generally
not the
appropriate procedure to settle questions of interpretation.
The same applies to the pleading of implied (strictly
tacit) terms;
the test on exception is whether the trial court could (not 'should')
reasonably imply the term alleged."
[40] I
turn to the case of the appellants.
The
case of the appellants
[41]
As I understand it, the appellants' case can be summarised as
follows:
(i) On the pleading (particulars of claim) as it stands, it cannot be
found, that there is no possible interpretation thereof (applying
the
principles on exception) that must lead to a conclusion that there is
no averment to the effect that, when the oral agreement
was entered
into, "any payment in terms of the settlement agreement had not
been made on due date" in the spirit of the
acceleration clause,
clause 7.
Consequently, it cannot be found that the oral agreement sought to
vary the acceleration clause (which is the main thrust of the
objection, as appears from paragraph 1.6 of the notice of objection,
quoted above); and
(ii) On the pleading as it stands, it cannot be held that there is no
possible interpretation thereof that could reasonably imply
that the
oral agreement did not seek to vary the payment regime provided for
in the settlement agreement.
[42]
As to (i), we heard strong and enthusiastic conflicting arguments
from both sides.
For
example, it was contended on behalf of the respondent that the
pleading, properly interpreted, contains averments to the effect
that, when the oral agreement was entered into in September 2009, V8
was in breach of its commitments provided for in the settlement
agreement and had failed to comply with the payment regime stipulated
in the settlement agreement. For example, we were referred
to
the following paragraphs of the particulars of claim:
• Clause 15.3:
"Bogemelde fondse (
my note
: a reference to the monies to
be received in respect of the land claims) sou beskikbaar wees en
aangewend word om die balans nog
verskuldig uit hoofde van die
skikkingsooreenkoms (aanhangsel 'B' hiertoe) welke balans ongeveer
R2.3 miljoen beloop het, ten volle
te vereffen."
• Clause 12.1:
"Verweerder het 'n aansoek om likwidasie van V8 gerig onder
saaknommer 38065/2008 in die Noord Gauteng Hoë Hof, Pretoria,
waarin gesteun is op die beweerde nie-nakoming van die skikking,
aanhangsel 'B' hiertoe."
• Clause 13.8.3:
"dat daar geen nadeel vir die verweerder sou wees om te wag vir
uitbetaling nie, waar rentes deurlopend gehef word en die
Visagé
groep oor genoegsame sekuriteit beskik ter dekking van bedrae wat
verskuldig sou wees."
• Clause 16.2.2:
"dat daaruit die volle balans verskuldig uit hoofde van die
skikkingsooreenkoms (aanhangsel 'B' hiertoe) vereffen sou word
sodra
uitbetaling geskied, welke betaling binnekort verwag is."
• Clause 17.1.1:
"... tot die effek dat die Visagé groep die uitstaande
balans nog verskuldig aan verweerder uit hoofde van die skikking
(aanhangsel 'B' hiertoe), ten volle sou vereffen teen uitbetaling van
die grondeis."
• Clause 20.2.6:
"dat voormelde uitbetaling voldoende sou wees om die uitstaande
balans nog verskuldig op daardie datum uit hoofde van die
skikking
(aanhangsel 'B' hierby aangeheg) te vereffen en dat dit inderdaad
daaruit vereffen sou word."
Mr
Dreyer also argued, if I understood him correctly, that, where the
last payments in terms of the payment regime contained in
the
settlement agreement, were due in October 2008, and the oral
agreement was only entered into almost a year later, in September
2009, the only reasonable inference to be drawn from any
interpretation of the pleading is that the provisions of the
settlement
agreement had been breached in the sense that payments had
not been made on due date so that the acceleration clause had been
activated
or triggered, with the oral agreement, seeking to vary the
acceleration clause, falling foul of the Shifren principle.
On
behalf of the respondent I was also referred to the 3
rd
edition of the
Trilingual Legal Dictionary
by Hiemstra and
Gonin at p485 where the word "verskuldig" is described as
"due, indebted, (an amount) owing, ''n
bedrag verskuldig wees',
be indebted in an amount, 'verskuldig wees', owe, 'verskuldig en
opeisbaar', due and claimable".
On
behalf of the appellants, Mr Maritz also referred to some dictionary
meanings of the particular words (
Oxford Dictionary
) where
"owing" is explained as "yet to be paid, owed, due".
"Payable"
is "that must be paid, due; that may be paid".
"Verskuldig"
(description from the
Verklarende Handwoordeboek van die
Afrikaanse Taal
or
HAT
) is "verplig, onbetaal".
Mr
Maritz also referred us to the interesting judgment in
Stafford v
Registrar of Deeds
1913 CPD Vol 1 p379 where the following is
said at 385:
"Not very much assistance can, in my opinion, be derived from
English cases, where the meanings of 'due' and of 'payable'
have been
discussed. It is clear that the word 'payable' is sometimes
construed as meaning 'payable at a future time' or
'in respect of
which there is liability to pay'. It is true that it is
sometimes used to mean 'payable immediately' or 'actually
due and
presently demandable' ... 'It should be observed that a debt is
said to be due the instant it has existence as a
debt. It may
be payable at a future time.' ... 'Due' means either 'owing' or
'payable', and what it means is determined by
the context. From
this I gather that 'payable' does not usually mean 'presently owing'
according to his view."
Importantly,
at 387 of
Stafford
, the following is said:
"The term 'payable' will bear more than one meaning, as appears
from the definition of it to be found in our approved dictionaries.
It would be quite correct to say that a sum is due but not yet
payable, and similarly to say that a sum is payable, but not yet
due,
and again that a sum is payable in the sense that it is already due.
We must, therefore, look at the context to see
in what sense the
legislature has used the word 'payable' occurring in the
sub section."
Against
this background, it was argued on behalf of the appellants that,
given the principles applicable on exception, it cannot
be held at
this stage that on no possible interpretation of the pleading as it
stands, there are no averments that payments in
terms of the
settlement agreement had not been made on due date.
Consequently, it ought not to be held that the acceleration
clause
had been activated and the oral agreement purported to vary the
acceleration clause in conflict with the Shifren principle.
We
were reminded that the
onus
is on the excipient to show that
its contention is the preferable one. As stated by the learned
author
Harms, supra
, "A pleading is only excipiable
on the basis that no possible evidence led on the pleadings can
disclose a cause of action
or defence." And: "It is
for the excipient to satisfy the court that the conclusion of law for
which the plaintiff
contends cannot be supported upon every
interpretation that can be put upon the facts."
It was
argued on behalf of the appellants, correctly in my view, that the
question whether monies had not been paid on due date
in the spirit
of the settlement agreement, can only be decided on evidence to be
presented at the trial.
In the
result, as to (i), I have come to the conclusion, and I find, that
the respondent, as prospective excipient, failed to show
that the
acceleration clause, on any possible interpretation of the pleading,
had been triggered or activated, so that there was
no question of the
oral agreement, in that respect, seeking to vary the settlement
agreement in conflict with the Shifren principle.
[43]
As to (ii), which, to a large extent, overlaps with (i), it was
argued on behalf of the respondent that the oral agreement,
as
pleaded in paragraph 17 of the particulars of claim, clearly
purported to vary the payment regime prescribed in the settlement
agreement: it sought to vary the payment regime prescribed in the
settlement agreement by seeking to introduce an arrangement whereby
the payment would be made, approximately a year after the event, by
means of a lump sum once the land claim obligations had been
met by
the state. As held in
Van Tonder
, an attempt to extend
the due payment also amounts to a variation of a written contract and
falls foul of
Shifren
, rendering the oral agreement
unenforceable and a nullity.
[44]
On the other hand, it was argued on behalf of the appellants that,
where it cannot be found that payments had not been made
as
foreshadowed in the acceleration clause, it also cannot be found, on
any possible interpretation, that the oral agreement constituted
an
effort to amend the non variation clause, or, for that matter,
the prescribed payment regime.
[45]
In this regard, particular emphasis was placed on the provisions of
clause 4(g) of the settlement agreement, already quoted,
to the
effect that outstanding balances on the loan accounts in the name of
V8 after October 2008 "will be normalised and
normal monthly
instalments in terms of the agreement of loan will be payable until
such time as the loans have been repaid in full".
There
was no averment in the particulars of claim, on every possible
interpretation, to the effect that these monthly instalments
were not
duly paid or were not still on schedule by the time the oral
agreement was entered into.
We
were reminded of the fact that it is clearly alleged in the
particulars of claim that payments were continued despite the
launching
of the liquidation proceedings and there was a difference
between the parties about the interpretation of the settlement
agreement
with regard to when payments would be due. For
example, some of these allegations in the particulars of claim
include:
• "12.2 Die Visagé groep het egter met verweerder
verskil oor die interpretasie
van die gemelde skikkingsooreenkoms ten aansien van wanneer sekere
betalings moes geskied."
I add that this allegation is made immediately after 12.1 where it is
stated that the liquidation application was launched in this
court
"waarin gesteun is op die
beweerde
nie-nakoming van die
skikking ..." (emphasis added); and
• "13.5 V8 en ander entiteite in die Visagé groep
het intussen
bona fide
voortgegaan om betalings te maak ooreenkomstig V8 en die ander
entiteite in die Visagé groep se interpretasie van die gemelde
ooreenkoms (aanhangsel 'B' hiertoe)."
I add that this follows immediately after 13.4 where it is alleged
that the liquidation application was opposed and had been set
down
for hearing on 14 September 2009.
[46]
It was argued, by way of example, that a home owner may owe some
R1 million on his mortgage bond, but may find himself
in a
position where only about R5 000,00 is due in respect of the
last monthly instalment.
[47]
It was argued that the oral agreement simply provided for two
eventualities:
(1) if the letter is received from the Premier before the date of
hearing of 14 September 2009, indicating when the amount
of
R3,149 million would be paid, a written agreement would be
entered into and made an order of court stipulating for payment
of
the outstanding balance in terms of the settlement agreement; or
(2) if the letter is not yet received by 14 September (which, on any
reasonable inference appears to be the case) only a provisional
order
of liquidation would be sought or the matter would be postponed in
any case.
It was
argued that this oral agreement merely foreshadowed an accelerated
form of payment of the outstanding balance, seeing that
the amount
exceeding that balance would be imminently received from the state,
and there was no attempt to vary the written agreement
in conflict
with the non-variation clause. In other words, when the oral
agreement was entered into, the non-variation clause
was not
activated or triggered, let alone the acceleration clause, as
previously pointed out.
[48]
Consequently, so it was argued in conclusion, the oral agreement did
not fly in the face of the written settlement agreement,
and, more
particularly, clauses 7 and 10 thereof. The result of this is
that the oral agreement, relied upon by the appellants
for purposes
of their damages action, did not render the particulars of claim
excipiable.
[49] I
find myself in respectful agreement with the argument offered on
behalf of the appellants.
[50]
In the result, I have come to the conclusion, and I find, that the
appeal ought to be upheld.
The
order
[51] I
make the following order:
1. The appeal is upheld.
2. The respondent is ordered to pay the costs of the appeal which
costs are to include the costs flowing from the employment of
two
counsel.
3. The order of the court
a quo
is set aside and replaced with
the following:
3.1 the application for leave to amend is granted;
3.2 the respondent is ordered to pay the costs of the application.
W R C
PRINSLOO
JUDGE OF THE
GAUTENG DIVISION, PRETORIA
A20-2014
I
agree
C
PRETORIUS
JUDGE OF THE
GAUTENG DIVISION, PRETORIA
I
agree
N
KOLLAPEN
JUDGE OF THE
GAUTENG DIVISION, PRETORIA
HEARD
ON: 24 AUGUST 2016
FOR
THE APPELLANTS: M C MARITZ SC, WITH S G MARITZ
INSTRUCTED
BY: JOOP LEWIES INC
FOR
THE RESPONDENT: J H DREYER SC, WITH M A BADENHORST SC
INSTRUCTED
BY: RORICH WOLMARANS & LUDERITZ INC