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
>>
2016
>>
[2016] ZAGPPHC 1095
|
|
Namabiti Technologies v Kahari (A266/15) [2016] ZAGPPHC 1095 (1 November 2016)
THE
REPUBLIC OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
D
I
VISION,
PRETORIA
1/11/2016
CASE
NO: A266/15
In
the matter between:
NAMABITI
TECHNOLOGI
ES
APPELLANT
and
HANDSOME
KAHARI
RESPONDENT
Heard:
8
th
September 2016
Delivered:
1
st
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]
I
n
Dexgroup
(Pty)
Ltd
v
Trustco
Group
I
nternational
(Pty)
Ltd,
[1]
in
confirming
what it
said
in
its
previous
decisions,
[2]
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.
19.3
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.
20
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,
[3]
to
show
his
readiness
and
willingness
to
carry
out
his
obligations
under
the
contract
and
also
tender
to
do
so.
21
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.
22
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.
23
In light of the above Iam 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.
Order
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
[1]
2013 (6) SA 520 (SCA).
[2]
KPMG Chartered Accountants (SA) v Securefin Ltd
[2009]
2
All
SA 523
(SCA) par 39) and
Natal
Joint Municipal Pension Fund v Endumeni Municipality
2012
(4)
SA 593
(SCA) paras 18
and
1
9.
[3]
1995
(3)
SA 541 (D).