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 940
|
|
Open Window v Adendorff (A307/2016) [2016] ZAGPPHC 940 (14 November 2016)
REPUBLIC OF SOUTH
AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION,
PRETORIA
CASE
NO: A307/2016
Reportable:
No
Of
interest to other judges: No
Revised.
THE
OPEN WINDOW
Appellant
and
DELAIDA
ADELENE
ADENDORFF
Respondent
JUDGMENT
AC
BASSON, J
[1]
This is an
appeal against the whole of the judgment of Magistrate Khoele in
terms of which the court granted summary judgment against
the
appellant (the defendant) with costs.
The
particulars of claim
[2]
The
respondent – Ms Adendorf (the plaintiff in the court
a
quo)
-
instituted action against the appellant - the Open Window (the
defendant in the
court
a quo
)
- in terms whereof she claimed payment from the appellant arising
from a written employment agreement (“the agreement”)
entered into between the parties. The respondent claimed that, in
terms of this agreement, a bonus would be paid to her by the
appellant in the month of her birthday equal to one month’s
salary.
[3]
In December
2012 the respondent was paid her full bonus that was already due in
September 2012. The appellant, however, failed to
pay the respondent
her bonuses for the respondent’s birthday month (being
September) for the years 2013 and 2014.
[4]
The bonus
due in September 2013 was for an amount of R 44 940.00 (before
tax) and the bonus due in September 2014 was for an
amount of R
47 636.40 (before tax). The respondent therefore claimed an
amount of R 92 576.40 (before tax) from the appellant.
[5]
The
appellant filed a notice of intention to defend and the respondent
applied for summary judgment against the appellant. As already
pointed out, the court
a
quo
granted summary judgment in favour of the respondent. It is against
this judgment that the appellant is appealing.
[6]
Before I
turn to what is contained in the affidavit resisting summary
judgment, it is necessary to briefly point out what is required
of a
defendant/respondent in such an affidavit. In essence the
defendant/respondent must in the opposing affidavit disclose a
bona
fide
defence
that is good in law wherein is stated the nature and grounds of the
defence and wherein the material facts on which the
defences are
based are disclosed.
[1]
A court
must consider the facts upon which the defendant/respondent relies in
order to decide whether the affidavit discloses a
bona
fide
defence(s). Although the defendant/respondent need not deal
exhaustively with the facts and the evidence relied upon to
substantiate
his or her defence, he or she must at least disclose a
defence and the material facts upon which it is based with sufficient
particularity
and completeness to enable the court to decide whether
the affidavit discloses a
bona
fide
defence(s).
[7]
I am
mindful of the fact that the defendant/respondent is not required to
satisfy the court that the allegations are true. All that
he or she
needs to show is that there is a reasonable possibility that the
defence(s) he or she advances may succeed on trial.
[2]
The defendant/respondent is therefore not required to advance a
convincing defence, he or she is only required to advance a
bona
fide
defence which is good in law. The Supreme Court of Appeals in
[zRPz]
Joob
Joob Investments (Pty) Ltd v Stocks Mavundla Zek Joint Venture
[3]
placed the purpose of
summary judgment in its proper context as follows:
“
[31]
So too in South Africa, the summary judgment procedure was not
intended to 'shut (a defendant) out from defending', unless
it was
very clear indeed that he had no case in the action. It was intended
to prevent sham defences from defeating the rights
of parties by
delay, and at the same time causing great loss to plaintiffs who were
endeavouring to enforce their rights.
[32]
The rationale for summary judgment proceedings is impeccable. The
procedure is not intended to deprive a defendant with a triable
issue or a sustainable defence of her/his day in court. After
almost a century of successful application in our courts, summary
judgment proceedings can hardly continue to be described as
extraordinary. Our courts, both of first instance and at appellate
level, have during that time rightly been trusted to ensure that a
defendant with a triable issue is not shut out. In the
Maharaj
case at 425G - 426E, Corbett JA was keen to ensure, first, an
examination of whether there has been sufficient disclosure by a
defendant of the nature and grounds of his defence and the facts upon
which it is founded. The second consideration is that the
defence so
disclosed must be both bona fide and good in law. A court which is
satisfied that this threshold has been crossed is
then bound to
refuse summary judgment. Corbett JA also warned against
requiring of a defendant the precision apposite to pleadings.
However, the learned judge was equally astute to ensure that
recalcitrant debtors pay what is due to a creditor.
[33]
Having regard to its purpose and its proper application, summary
judgment proceedings only hold terrors and are 'drastic' for
a
defendant who has no defence. Perhaps the time has come to
discard these labels and to concentrate rather on the proper
application of the rule, as set out with customary clarity and
elegance by Corbett JA in the
Maharaj
case at 425G - 426E.”
Salient
terms of the contract of employment
[8]
In terms of
clause 8.1 of the agreement the appellant would remunerate the
respondent for her services in 2012 in an amount of R
32 000.00
(before tax) per month. The rate of remuneration is contained in a
document annexed to the agreement as “Annexure
A”.
Annexure A only refers to the respondent’s salary and makes no
mention of bonuses.
[9]
In terms of
clause 8.2 the appellant may, at the company’s sole discretion
on each anniversary of the agreement, revise the
employee’s
remuneration. In doing so, the company shall take into account work
ethics, performance, attendance, initiative,
loyalty and the overall
financial performance of the appellant’s business as a whole
during the preceding financial year.
Further in terms of this clause
all revisions made by the appellant to employees’ remuneration
shall be determined in the
absolute discretion of the company “and
are not guaranteed”. Clause 8.2 makes no mention of any bonuses
to be paid
to employees.
[10]
Clause 8.4
of the agreement on the other hand, deals exclusively with bonuses
and stipulates that a “bonus will be paid by
the company in the
month of an employee’s birthday, equal to one month salary”.
The issue of a bonus is therefore addressed
separately in the
agreement and is not dealt with as part and partial of the clauses
dealing exclusively with remuneration.
[11]
Clause 15
of the agreement further states that “[n]o variation of this
agreement shall be of any force or effect unless recorded
in writing
and signed by or on behalf of the parties or their representatives,
duly authorised thereto”.
Affidavit
resisting summary judgment
[12]
The
appellant relied on two possible defences in its affidavit resisting
summary judgment. (i) In terms of the first defence it
is stated that
there was an implied and/or tacit agreement between the parties in
respect of the obligation to pay a bonus. In
essence it is claimed
that the appellant has a discretion whether or not a bonus is
payable. (ii) In terms of the second
defence, it is claimed
that the parties had consulted on the issue pertaining to bonuses and
have reached an agreement or understanding
in respect of bonuses
which amounted to an amendment to the obligation to pay bonuses as
contained in clause 8.4.
[13]
I will deal
with each defence separately herein below. I should, however, point
out that the two defence are, in my view, mutually
exclusive: Either
the parties have tacitly agreed to vary or amend the obligation to
pay a bonus or the parties have expressly
agreed to amend the
obligation to pay a bonus pursuant to a consultation process during
which the respondent agreed to accept a
regime which amounted to a
change in the obligation to pay a bonus.
Consultation
[14]
The
appellant contended that it was not in a financial position to make
payment of the bonuses to the respondent and that this fact
was
communicated to her. In support of this contention a copy of an
e-mail dated 1 March 2013 is attached to the papers. The author
of
the e-mail is a one Wimpie Jansen van Resburg (“Van Rensburg”).
In this e-mail the respondent is invited by
Van Rensburg to a
consultation meeting scheduled for 4 March 2013 in order to discuss
remuneration packages including the bonus
structure. From the e-mail
it can be discerned that the aim of the meeting was to consult with
the respondent and attempt to reach
consensus in respect of changes
to the written and binding conditions of employment between the
parties and more in particularly
in respect of the obligation to pay
bonuses which obligation clearly emanates from the provisions of
clause 8(4).
[15]
According
to the affidavit resisting summary judgment, the deponent to the
affidavit (Mr Gert Dirkse du Toit – “Du Toit”)
was
informed by Van Rensburg that the respondent had indicated that she
would accept the fact that bonuses would not be paid on
condition
that she could have study leave every Friday in order to have to work
on her doctoral degree.
[16]
I have
several difficulties with this defence: (i) Firstly, the deponent to
the affidavit has no personal knowledge of the alleged
agreement or
understanding between Van Rensburg and the respondent. Du Toit merely
states in the affidavit that he was informed
by Van Rensbug of the
understanding. No confirmatory affidavit has been attached to the
affidavit resisting summary judgment. (ii)
Secondly, the deponent
relies on an e-mail inviting the respondent to a consultation
meeting. Apart from a bold unsubstantiated
allegation that there was
such a meeting and what the outcome of the consultation meeting was,
nothing is attached to the papers
confirming firstly that the meeting
did in fact take place and secondly what the outcome of the
consultation meeting was. (iii)
Thirdly, the allegation that an
agreement was reached should also be read against the fact that
clause 15 (1)( and (2) specifically
provides that “[n]o
variation of this agreement shall be of any force or effect unless
recorded in writing and signed by
or on behalf of the parties or
their representatives, duly authorised thereto”. No document is
attached to the papers confirming
that a consensus had indeed been
reached and reduced to writing reflecting or confirming that an
agreement had been reached which
amended the clear and unambiguous
obligation on the appellant to pay a bonus. In this regard the
Appeal Court (as it then
was)
SA
Sentrale
Ko-Op Graanmaatskappy Bpk v Shifren en Andere
[4]
held that where the written contract between the parties provided
that ‘… any variations in the terms of this agreement
as
may be agreed upon between the parties shall be in writing otherwise
the same shall be of no force or effect’
[5]
that the contract could not be altered verbally and that to hold
otherwise would be tantamount to deviating from the elementary
and
basic general principle that contracts entered into freely and
seriously between parties authorised to enter into such contracts
are
in the public interest to enforce.
[6]
In
Brisley
v Drotsky
,
[7]
the Court held that the principle laid down in the
Shifren-
case to the effect that a term in a written contract that all
amendments to the contract have to comply with specified formalities,
was still binding.
[8]
See also
Nyandeni
Local Municipality v Hlazo
[9]
where the Court also upheld the
Shifren
-principle
as being good law:
“
[43]
The judgment in
Shifren
convincingly deals with policy considerations such as the need to
avoid disputes, evidential difficulties often associated with
oral
agreements, the need for certainty and clarity in the commercial
environment, and the infringement of the right to contractual
freedom
to allow a departure from the elementary principle of
pacta
sunt servanda
.
The principle in
Shifren
has consistently been reaffirmed by the Supreme Court of Appeal and
remains good law.
[17]
In
summary therefore and on a proper construction of the agreement, it
cannot be concluded that there is a discernable or sustainable
defence put up by the appellant: There is simply nothing before this
court, apart from a unsubstantiated allegation, that the appellant
and the respondent had come to some kind of agreement in respect of
the non-payment of the bonus. The further e-mail attached to
the
papers to sustain the allegation of an agreement also does not take
the matter any further. Firstly, the e-mail in which reference
is
made to a “vergunning” is dated more than a year later
and secondly, does not refer to any agreement in respect
of bonuses.
Tacit
and/or implied term
[18]
In the
affidavit resisting summary judgment the appellant also contended
that the bonus referred to in the agreement at all times
represented
a bonus that would only be payable to the respondent, as tacitly
and/or impliedly agreed between the parties under
circumstances where
-
(i)
the
performance of the respondent warranted such a bonus; and
(ii)
under
circumstances where the financial performance of the appellant
allowed for such a bonus to be paid. (I will return to the
issue of a
tacit or implied agreement in more detail herein below.)
[19]
On a plain
reading of clause 8.4 it is clear that there is an obligation on the
appellant to pay the respondent a bonus equal to
one month’s
notice. I should also point out that it is not disputed that clause
8(4) intended to convey that a bonus “will”
be paid to
the respondent in the month of her birthday equal to one month’s
salary. It is therefore not necessary for this
court to interpret
what the parties agreed upon in respect of bonuses as it is quite
clear from a plain reading of the contract
what the obligation of the
appellant was in terms of the agreement.
[20]
The
appellant contended that a bonus constitutes “remuneration”
and because it does clause 8.2 likewise affords the
appellant a
discretion whether or not it has to pay a bonus: The appellant will
exercise the discretion in favour of the respondent
and pay a bonus
in the event that the performance of the respondent warrants it and
where the financial position of the appellant
allows for such a bonus
to be paid.
[21]
I am not
persuaded that this constitutes a sustainable defence for the
following reasons: (i) Firstly, clause 8(4) dealing with
bonuses is
unqualified. On a plain reading of this clause the appellant has no
discretion whether or not to pay the bonus. (ii)
Secondly, there is
on a plain reading of clause 8(4) no room to import an implied term
into this clause that the appellant has
a discretion whether or not
to pay a bonus. Clause 8(4) simply does not allow for a discretion
and is framed in peremptory language.
(iii) Thirdly, the parties
clearly had intended to deal with bonuses separately and distinctly
from ordinary monthly remuneration.
This is also borne out by the
fact that Annexure “A” to the agreement only deals with
remuneration and makes no mention
of bonuses.
[22]
On a plain
reading of the contract it is therefore, in my view, clear that the
parties have expressly provided for a discretion
regarding
remuneration in clause 8(2) of the agreement but have intentionally
omitted such a discretion in the context of clause
8(4) in respect of
the payment of bonuses. There is, therefore “no room for
importing the alleged implied term”. See
in this regard:
[zRPz]
Pan
American World Airways Incorporated v SA Fire And Accident Insurance
Co Ltd
[10]
“
When
dealing with the problem of an implied term the first enquiry is, of
course, whether, regard being had to the express terms
of the
Agreement, there is any room for importing the alleged implied term.
Considering the wording of the Bilateral Agreement
I see no reason to
hold that the door is closed. On the contrary, the manner in which
the parties have expressed themselves as
to the rights granted has
left an ambiguity which, in my opinion, leaves the door wide open.”
[23]
There
is also no ambiguity in clause 8(4). That much was also conceded on
behalf of the appellant. The parties have expressly agreed
on a term
and the agreement is contained in clause 8(4) of the agreement. In
these circumstances there is no room to import a discretion
which was
expressly not included in clause 8(4) of the agreement. See in this
regard:
[zRPz]
South
African Mutual Aid Society v Cape Town Chamber of Commerce
:
[11]
“
A
term is sought to be implied in an agreement for the very reason
that the parties failed to agree expressly thereon. Where
the
parties have expressly agreed upon a term and given expression to
that agreement in the
written
contract in unambiguous terms no reference can be had to surrounding
circumstances in order to subvert the meaning to be
derived from a
consideration of the language of the agreement only. See
Delmas
Milling Co. Ltd v du Plessis
,
1955
(3) SA 447 (AD)
at
p. 454. In
Mullin
(Pty.) Ltd v Benade Ltd.
,
1952 (1) 211 (A.D.) at p. 215, CENTLIVRES, C.J., refused to imply a
term in an undertaking expressed in words which disclosed
no
ambiguity.”
[24]
For the
reasons set out above, the appeal must therefore fail. The following
order is made:
“
The appeal is
dismissed with costs.”
_________________________
AC
BASSON
JUDGE
OF THE HIGH COURT
I
agree
_________________________
PH
MALUNGANA
ACTING
JUDGE OF THE HIGH COURT
Appearances:
For
the appellant :
Adv M Jacobs
Instructed
by
:
WWB
Botha Attorneys
For
the respondent :
Adv V Vergano
Instructed
by
:
Macrobert Inc
[1]
Rule 32((3) of the Uniform Rules of Court.
[2]
See in general:
[zRPz]
Marsh
and another v Standard Bank of SA Ltd
2000 (4) SA 947 (W).
[3]
2009 (5) SA 1 (SCA).
[4]
1964
(40 SA 760 (A).
[5]
Ibid
at 764 A.
[6]
Ibid
at 766-767.
[7]
2002
(4) SA 1 (SCA).
[8]
Ibid
at paras 6-10.
[9]
2010
(4) SA 261
(ECM).
[10]
1965 (3) SA 150 (A).
[11]
1962 (1) SA 598
(A) at 615C – E.