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[2015] ZAGPPHC 110
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Discovery Life Limited v Barthram (71989/2013) [2015] ZAGPPHC 110 (6 March 2015)
IN
THE HIGH COURT OF SOUTH AFRICA
(
GAUTENG
DIVISION, PRETORIA)
CASE NO:
71989/2013
DATE: 6 MARCH
2015
IN THE MATTER
BETWEEN
DISCOVERY LIFE
LIMITED
.................................................................................
Plaintiff/
Applicant
and
PERCY GEORGE
EDWARD
BARTHRAM
...................................................
Defendant/Respondent
JUDGMENT
LEGODI J
[1] This is an
exception noted against the defendant’s defence. Several
grounds of the exception are raised. All revolve around
averment made
in paragraph 2.2 of the plea. It reads as follows:
“
It was
furthermore a tacit term of the agreement that should the plaintiff
unlawfully terminate the agreement or breach, the terms
thereof,
defendant would remain entitled to all remuneration earned by him
prior to such termination or earned during the period
that the
plaintiff prescribed with such breach".
[2] On behalf of the
plaintiff, is alleged that the tacit term alleged in paragraph 2.2 of
the defendant’s defence is not
one of the expressed terms of
the written agreement and that it is therefore vague and embarrassing
particularly taking into account
the followings:
2.1 That the written
agreement pleaded by the plaintiff is admitted by the defendant;
2.2 That the written
agreement constitutes the entire agreement, a term which is also
admitted by the defendant;
2.3 That the written
agreement pleaded by the plaintiff contains a nonvariation clause.
That any amendment or variation is invalid
unless such variation or
amendment has been reduced to writing by the parties;
2.4 Further, is
contended by the plaintiff that the defendant fails to set out in
what manner, where, when and by whom the tacit
term pleaded by the
defendant in paragraph 2.2. of its plea was reached.
[3] Based on all of
these, is then suggested that the defendant’s defence or claim
lacks material facts to sustain a defence
or claim and that
therefore, is vague and embarrassing.
[4] Counsel for the
defendant starts by taking a swipe at the plaintiff's heads of
argument and the relief sought therein, is wider
than the content of
the exception. The contention is based on the followings: Firstly,
that in paragraph 5.1 of the heads of argument
is alleged that the
plaintiff did not plead the tacit term and its particularly. That
such allegation appears in the exception.
Even if the allegation has
merit, which it has not, it should have been relied upon in the
exception, so it was argued on behalf
of the defendant. Lastly, that
in paragraph 5.3 of the plaintiffs heads of argument, the plaitiff
asks for striking out of the
defendant’s counterclaim. But the
plaintiff did not seek such a relief in the exception, so is argued.
[5] True, as was
argued by counsel on behalf of the defendant, the plaintiff is not
entitled to widen the scope of its exception
which is not covered in
the exception itself.
[6] Coming to the
exception, the suggestion is that the exception noted by the
plaintiff is based on a misconception which resulted
from failure on
the part of the plaintiff to appreciate the nature of the pleaded
tacit term. As correctly pointed out by counsel
on behalf of the
defendant, a tacit term is an outspoken provision of the contract. It
is one to which the parties agree, though
without saying so
explicitly.
[7]
The test for inferring a tacit term is whether the parties, if asked
whether their agreement contains the term, would immediately
say:
“
Yes,
of course that is what we agreed
”
1
.
Similarly, implied term is used to denote an unexpressed provision of
the contract which derives from the common intention of
the parties
as inferred by the court from the express terms of the contract and
the surrounding circumstances. In supplying such
an implied term, the
court in truth, declares the whole contract entered into by the
parties
2
.
[8] A tacit term can
be imported into a written contract where there are expressed terms.
When that happens, the tacit term supplements
the expressed terms in
the contract and it thus forms much part of the contract as its
express terms. Such a tacit term for it
to be imported should not
amend, contradict or vary the contract, instead it must form part of
the contract with its expressed
terms.
[9] The words
“should plaintiff unlawfully terminate the agreement or breach
the terms thereof the defendant would remain
entitled to all
remuneration earned by him prior to such termination or earned during
the period that the plaintiff persisted with
such breach”, in
paragraph 2.2 of the plea, is the basis for the exception.
[13] In my view,
paragraph 2.2 of the defendant’s plea should be seen in
context. The context is founded in clauses 17 and
18 of the contract.
Clause 17 deals with the termination of employment and clause 18 with
termination consequences.
[14] Clause 17 reads
as follows:
“
17.1 The
agreement may be terminated in the following circumstances:
17.1.1 where the
Consultant breaches any term of the agreement;
17.1.2 where the
Consultant fails to or ceases to comply with Fit and Proper
requirements as spelled out by the FAIS Act;
17.1.3 for any
lawful or fair reason; or
17.1.4 where
either party provides to the other party written notice of
termination of employment in terms of the Basic Condition
of
Employment Act”.
The relevant
provisions in clause 18 reads as follows:
"18.1 The
Consultant’s membership of the pension and provident fund and
medical scheme shall terminate on the last day
of the month for which
contribution have been paid in full.
18.2 The
obligation of Discovery to remunerate the Consultant in terms of this
agreement ceases upon termination of this agreement
for any reason
whatsoever.
18.3 Upon
termination of this agreement, the Consultant shall lose any
entitlement to shares allocated to them during their employment
with
Discovery (except in the event of the Consultant’s retirement
which shall be regulated in terms of clause 18.10 below).
18.4 Upon
termination of this agreement, the Consultant shall immediately
return all property and material, including client files
(unless
retention of same is permitted in terms of this agreement) of the
Discovery Group.
This is to enable
the Discovery Group to comply with its recordkeeping obligations in
terms of the Applicable law.
[15] ‘For any
lawful or fair reason’ in clause 17.1.3 as quoted, in my view,
is in harmony with “Should plaintiff
unlawfully terminate the
agreement or breach the terms thereof set out in paragraph 2.2 of the
defendant’s plea. In other
words, the plaintiff will be
entitled to terminate the agreement for as long as the plaintiff acts
lawfully and fairly towards
the defendant in terminating the
defendant’s employment.
[16] By the way,
Consultant in clauses 17 and 18 refers to the defendant. What is
pleaded in paragraph 2.2 of the defendant’s
plea, in my view,
does not offend the nonvariation term in clause 34 of the agreement.
It provides as follows:
’’
Save
as provided for herein, no amendment, or variation to this agreement
shall be of any force or effect unless agreed between
the parties and
reduced to writing”.
17. The pleaded
paragraph 2.2 of the defendant’s plea is neither a variation
nor amendment. It is supplementary to the expressed
terms of the
agreement and is clearly inferred or implied in the agreement.
[18] Consequently,
the application for exception is hereby dismissed with costs.
M F LEGODI
JUDGE OF THE HIGH
COURT
FOR THE
APPLICANT/PLAINTIFF: ADV. T COLYN
INSTRUCTED BY: KEITH
SUTCLIFFE & ASSOCIATES
c/o
ANREA
RAE ATTORNEYS
69
Douglas Street
Colbyn,
PRETORIA
REF:
K Sutcliffe/BB/D1356 Mrs Rae/K188
TEL:
012 430 7757
FOR THE DEFENDANT:
ADV PP DELPORT SC
INSTRUCTED BY: PEET
DELPORT ATTORNEYS
43B Marili Avenue
Val de Grace
PRETORIA
REF: PD 762
TEL: 012 753 7916
Matter heard on: 02
MARCH 2015
Judgment handed down
on: 06 March 2015
1
See
Food Allied Workers Union v Ngcobo NO & Another
2014
(1) SA (CC) p43G.
2
See
Alfred
McApine and Son (PTY) Ltd v Transvaal Provincial Administration
1974
(3) SA 506
(A) p531-532A.