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[2016] ZAGPPHC 914
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Insulation Thermal Acoustic Security Company (Pty) Ltd and Another v South African Post Office Limited (A23/2015) [2016] ZAGPPHC 914 (21 October 2016)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
CASE
NO:
A23/2015
DATE
OF HEARING:
19/10/2016
DATE
OF JUDGMENT:
21/10/2026
Reportable:
No
Of
interest to other judges: No
Revised.
In
the matter between:
INSULATION
THERMAL ACOUSTIC SECURITY
COMPANY
(PTY)
LTD FIRST
APPELLANT
STRITAS
(PTY)
LTD SECOND
APPELLANT
SOUTH
AFRICAN POST OFFICE
LIMITED RESPONDENT
JUDGMENT
BAM
AJ
[1]
This Court has been called upon to answer the question whether the
court a
quo
was correct in granting absolution from the
instance upon application by the defendant at the close of the
appellants' case.
[2]
In this case, the court a
quo
had granted absolution from the
instance on the grounds that the appellants had failed to prove the
existence of a contract between
themselves and the respondent. The
judge specifically states that:
"Now from the evidence it is
clear that until
a
vel}' late stage there is no a/legation
that there was ever
a
contract".
This cannot be
because the entire case of the appellants is based on what they
allege is the existence of a contract. In fact the
appellants pleaded
three causes of action in the alternative, these being a written
contract, an oral agreement and the application
of quasi-mutual
assent.
[3]
In the court a
quo' s
judgment, there is no indication at all
as to whether the two alternative causes of action were considered
because reference is
made only to the signature of the CEO. The court
concluded that since there was no evidence that the CEO signed the
contract, there
can be none to speak of. It was on this basis that
the court found for the respondent.
[4]
It is so that the primary basis for contractual liability under South
African law has always been and still remains consensus
ad idem
as
determined through the rules relating to offer and acceptance. It is
also an accepted principle of our law that the existence
of a
contract or an agreement can be proven in other ways beside the
production of a written and/or signed document.
[5]
In allowing the appeal to this court the judge a
quo
confirms
that he did not quite deal with the issue of quasi-mutual assent and
it is our view that he must be afforded the opportunity
to do just
that. A further reason, other than the court's concession already
stated, is because upon perusal of the documents filed
of record in
this matter, we are of the view that the appellants have got an
answerable case. It is essential that the respondent
is given an
opportunity to place its case or response before the court so that
the causes of action, as put forward by the appellants
can be
addressed and a determination made in relation to them.
[6]
It is not for this court to venture into the merits of the arguments
between the parties and we heed the caution by Schreiner
JA in
Gafoor
v Unie Versekeringsadviseurs (Edms) BPK
1961 (2) SA 335
at 340 D
that:
"on
appeal it is generally right for the Appellate Tribunal, when
allowing an appeal against an order granting absolution at
the close
of the plaintiffs case, to avoid, as far as possible, the expression
of views that may prematurely curb the free exercise
by the trial
court of its judgment on the facts when the defendant's case has been
closed."
[9]
In the premises, the following order is made:
(a) The appeal is upheld with
costs.
(b) The order of the court a
quo
is hereby set aside and replaced with an order that absolution
from the instance is refused.
(c) The case is remitted to the
trial court for finalization.
__________________
BAM
AJ
ACTING
JUDGE OF THE HIGH COURT
I
agree and it is so ordered
__________________
LOUW
A. A. J
JUDGE
OF THE HIGH COURT
I
agree and it is so ordered
__________________
RANCHOD
J
JUDGE
OF THE HIGH COURT
Counsel
for the Appellants
: H C BOTMA
Instructed
by
: MICHAEL SALOMON ATTORNEYS
Counsel
for Respondent
: H F JACOBS SC
Instructed
by
: MAHLANGU INC.
Date
of Hearing
: 19 October 2016
Date
of Judgment
: 21 October 2016