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[2016] ZAGPPHC 990
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Namabiti Technologies v Kahari (A266/15) [2016] ZAGPPHC 990 (1 November 2016)
THE REPUBLIC OF
SOUTH AFRICA
IN THE HIGH COURT
OF SOUTH AFRICA
GAUTENG DIVISION,
PRETORIA
REPORTABLE: NO
OF INTEREST TO
OTHER JUDGES:
REVISED
1 November 2016
CASE NO: A266/15
In the matter
between:
NAMABITI
TECHNOLOGIES
APPELLANT
and
HANDSOME
KAHARI
RESPONDENT
Heard: 8th September
2016
Delivered: 1st
November 2016
JUDGMENT
Molahlehi AJ
Introduction
[1]
This is an appeal against the judgment and the order by the
Magistrate court, Tshwane Central, made under case number 3031/13 and
made on 14 January 2015. In terms of the judgment the Magistrate
upheld the respondent's claim and accordingly ordered the appellant
to pay him the amount of R54 000,00 with costs.
[2]
It is apparent from the particulars of the claim of the
respondent, that his cause of action was based on specific
performance arising
from the written contract that he had concluded
with the appellant.
Background facts
[3] It is common
cause that at the close of the respondent's case during trial the
applicant unsuccessfully sought an order of the
absolution from the
instance. Initially the appellant had intended to lead evidence after
its application for the absolution from
the instances was dismissed.
It later changed its position and decided not to lead any oral
evidence in that regard. The case of
the appellant was then closed.
[4]
It is common cause that the parties entered into a fixed term
contract in terms of which the respondent was to render IT services
on behalf of the appellant and such services were to be rendered at
DBSA -Midrand. The case of the respondent was not that he rendered
the services at the DBSA but that he was deployed to perform work at
the City of Tshwane (Tshwane) and that is where he rendered
his
services in terms of the contract.
[5]
The averment that the instruction to render services at
Tshwane was given came from a certain Veren, who had convened an
interview
with the respondent. The interview was held at Tshwane.
According to the respondent, he was after the meeting informed by
Veren
to report at Tshwane the following day.
[6]
The following day the respondent reported at Tshwane offices
where all arrangements were made for him to perform his duties
including
being given access to the premises and the IT system.
[7]
At the end of the week, the respondent completed the weekly
worksheet which he submitted to Veren. The respondent was thereafter
assigned to work at Mintek.
Grounds of appeal
[8] The appellant
contends that the magistrate erred in concluding that the services
which were rendered by the respondent at Tshwane
were rendered as
part of the written contract concluded between the parties. The
applicant further contended that the magistrate
erred in interpreting
the agreement to be saying that the assignment location could be
changed by the respondent.
[9]
As concerning the findings of the law, the appellant contended
that the respondent was not entitled to the relief of specific
performance
because he did not render his services at the DBSA as
provided for in the contract.
[10] The other
ground raised by the appellant is that the trial court was wrong in
entertaining the oral evidence about how the
work done at Tshwane
formed part of the contract between the parties. This the appellant
contended, contravened the parole evidence
rule.
The magistrate's
decision
[11] As indicate
earlier the magistrate upheld the respondent's claim and accordingly
ordered the appellant to pay him R54 000,00
with costs. The reasons
for the order made was subsequently provided at the request of the
appellant. In his decision, the magistrate
confirmed that the parties
concluded an agreement in terms of which the respondent was to render
IT services, "initially at
DBSA in Midrand." He further
recorded in his judgment that the respondent performed his services
at Tshwane. He rejected the
contention of the appellant that the
respondent was in terms of the agreement bound to exclusively render
the services at DBSA
Midrand.
The issue
[12] It is apparent
from the record that the magistrate was confronted with having to
interpret the written agreement between the
parties. In this regard,
the onus was on the respondent to show that even though the contract
expressly provided for work to be
done at the DBSA -Midrand, that
included work done at Tshwane.
Evaluation
[13] It is common
cause that the parties concluded an agreement in terms of which the
respondent was to render IT services to the
appellant and those
services were to be rendered at the DBSA-Midrand. At paragraph 5 of
the particulars of claim the respondent
states the following:
"... Plaintiff
will work at the Development Bank of South Africa (DBSA) Midrand and
or as required from time to time by the
defendant as per the schedule
to the agreement which formed part of the whole agreement as
attached."
[14]The case of the
respondent was further that after the conclusion of the agreement the
applicant arranged for a meeting at Tshwane
where he was advised to
report for duty there the following day. He performed his duties
regularly at Tshwane and submitted his
weekly worksheets which showed
the services that he had rendered.
[15] The main issue
as indicated above relates to the interpretation of the written
contract concluded between the parties. It is
trite that in
interpreting any document the starting point is the language of the
document. It has also been held that the language
of a document that
is a subject of interpretation must be construed in the light of its
context, apparent purpose, and knowledge
of those responsible for the
production of the document.
[16] In Dexgroup
(Pty) Ltd v Trustco Group International (Pty) Ltd in confirming what
it said in its previous decisions, relating
to the approach to adopt
when dealing with an interpretation of a document, the Supreme Court
of Appeal had the following to say:
". . . in
interpreting any document the starting point is inevitably the
language of the document but it falls to be construed
in the light of
its context, the apparent purpose to which it is directed and the
material known to those responsible for its production.
Context, the
purpose of the provision under consideration and the background to
the preparation and production of the document
in question are not
secondary matters introduced to resolve linguistic uncertainty but
are fundamental to the process of interpretation
from the outset. The
approach of the arbitrator cannot be faulted in this regard".
[17]The claim of the
respondent was based on the specific performance in terms of the
written agreement. The respondent conceded
during cross-examination
that there was no other contract between the parties.
[18]It has not been
pleaded that the contract has been amended. It was also conceded
during cross-examination that the respondent
was to perform work at
the DBSA but never did. The schedule attached to the contract also
refers to the client, where the services
were to be performed by the
respondent, and that was the DBSA-Midrand.
[19]The relevant
parts of Clause 13 of the agreement, for the purposes of this
judgment reads as follows:
19.1 This agreement
constitutes the entire agreement between the parties and no
representation by either of the parties, or their
agents, where they
may have prior to or subsequent to the signing of this agreement,
shall be binding on either of the parties,
unless in writing and
signed by both parties hereto.
19.2 No variation,
alteration or consensual cancelation of this Agreement or any of the
terms thereof, shall be of any force or
effect, unless in writing and
signed by the parties hereto, save for such terms and conditions as
arise out of this Agreement.
20. No waiver or
abandonment by either party of any of his rights in terms of this
Agreement, shall be binding on that party, unless
such waiver or
abandonment is in writing and signed by the waiving party." The
respondent conceded during cross-examination
that he had read clause
13.1 and had fully understood its import. He also conceded that any
changes to the contract had to be done
with the consent of both
parties and needed to be done in writing. And more importantly, he
conceded that if changes were to be
made from DBSA to Tshwane that
needed to be done in writing and be signed by both parties. He also
conceded that there was nothing
in writing that instructed him to
work at Tshwane.
21. The respondent
having conceded that he did not perform any duties at the DBSA, the
question that pertinently arose before the
Magistrate was whether he
was entitled to the relief he claimed. In order to succeed in this
respect the respondent had, in terms
of PA Cooling Services (Pty) Ltd
v Church Council of the Full Gospel, to show his readiness and
willingness to carry out his obligations
under the contract and also
tender to do so.
22. It follows from
the above analysis that the respondent was not entitled to specific
performance and on that ground alone it
ought to have been found by
the Magistrate that he had not made the averment necessary to sustain
his claim. In other words in
failing in his pleadings to state that
he was ready and willing to carry out his obligations under the
contract and also tendered
to do so was a basis for the Magistrate to
have dismissed the specific performance claim of the respondent.
23. Another aspect
of the respondent's case which was not pleaded was that he was
required to perform services at Tshwane. It would
appear that those
instructions were issued to him orally. It is common cause that the
contract signed by the respondent makes no
reference to rendering
services at Tshwane. In other words there is no term in the contract
that says in addition to rendering
the services on behalf of the
appellant at the DBSA - Midrand the respondent would in addition do
that at Tshwane.
24. In light of the
above I am of the view that the appellant has made out a case
warranting interference with the decision of the
Magistrate and
accordingly that decision stands to be set aside.
In the premises the
following order is made:
1. The appellant's
appeal is upheld.
2. The order of the
Magistrate is set aside and substituted with the following:
i. "The
Plaintiff has failed to make out a case for specific performance.
ii. The Plaintiffs
claim is dismissed with costs including costs of counsel and the
costs of the appeal.
____________________________
E MOLAHLEHI AJ
JUDGE OF THE HIGH
COURT
I
agree and it is
ordered
____________________________
M Twala AJ
JUDGE OF THE HIGH
COURT
For the appellant
:
ADV CJ WELGEMOED
Instructed by:
THAPHELO KHARAMETSANE ATTORNEYS
For the
Respondent:
ADV T CHAUKE
Instructed by
:
AMODA ATTORNEYS