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[2015] ZAFSHC 197
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Botha v Iveco South Africa (Pty) Ltd (A259/2014) [2015] ZAFSHC 197 (22 October 2015)
FREE
STATE
HIGH
COURT, BLOEMFONTEIN
REPUBLIC
OF SOUTH AFRICA
Appeal
No. : A259/2014
In the
appeal between:-
DIRK
SAMUEL
BOTHA
Appellant
and
IVECO
SOUTH AFRICA (PTY)
LTD
Respondent
CORAM:
KRUGER,
EBRAHIM JJ
et
OPPERMAN, AJ
HEARD
ON:
12
OCTOBER 2015
JUDGMENT
BY:
OPPERMAN,
AJ (
Minority
Judgment
)
DELIVERED
ON:
22
OCTOBER 2015
[1]
I concur with the findings of Kruger J but for the costs order. It is
crucial to lay emphasis on the
compass of law that directs the key
aspects namely the indemnity clause, the quantum and the order for
costs. Parallel to
the law is the thread of vexatious conduct
of the appellant that weaves through the relevant events. Due to the
plethora of litigation
that has taken place and to avoid confusion I
will refer to the parties as Iveco and Botha.
[2]
The case that has an epic history commencing in 2001 and hopefully
concluding in 2015, is a tension
between commercial certainty and the
constitutional right of access to the courts. Commercial certainty is
the right of
Iveco
to unfettered use of the assets that were accrued from Botha and
guaranteed in the contract with the indemnity clause.
It
is grounded not only in law but also in morality.
In
Basson
v Chilwan and Others
1993 (3) SA 742 (A)
[1]
at 762H Eksteen JA
referred to:
“
The paramount
importance of upholding the sanctity of contracts, without which all
trade would be impossible …
”
Further,
“
If
there is one thing that is more than public policy requires, it is
that men of full age and competent understanding shall have
the
utmost liberty of contracting, and that their contracts when entered
into freely and voluntarily shall be held sacred and shall
be
enforced by courts of justice. Therefore you have this para-mount
public policy to consider - that you are not lightly to interfere
with this freedom of contract.
”
Justice
Ackermann in
Ferreira
v Levin NO; Vryenhoek v Powell NO
1996 (1) SA 984
(CC) paragraph 26 described it as ‘a central
consideration in a constitutional state’. These statements aim
for reasonable
certainty, so that parties can go about their business
knowing the rules of the game; constitutional economic integrity is
vital.
[3]
Botha, apparently, relied on his right of access to the courts in
terms of the Constitution throughout.
The use of courts to settle
disputes must be in good faith and is not absolute. Access to courts
in section 34 of the Constitution
of South Africa, 1996 is termed:
“
Everybody
has the right to have any dispute that can be resolved by the
application of law decided in a fair public hearing before
a court
or, where appropriate, another independent and impartial tribunal or
forum.
”
The
crux is that the dispute did not have to be resolved by the
application of law in a court if Botha honoured his contractual
undertaking.
Firstly
the facts proven showed that Botha caused the disputes with his
obstinate conduct towards Iveco. If he did not succeed in
his
extra
curial
conduct he would carry on in the courts under the guise of his right
to access to court with facts that did not need to be resolved
by the
application of law by the courts but by the
sacredness and morality of contract between parties. The chronology
of events depicted in the judgment of Kruger J paragraphs 12
to16
echoes the above.
[4]
It is apposite to acknowledge the contrast in the case by referring
to the diligence with which Iveco
honoured the agreement and
endeavour to limit damages due to the conduct of Botha. Iveco
complied with the contract, informed Botha
of the claim of the
municipality timeously and after patient deliberations with the
municipality and Botha and out of desperate
protection of their
business interest, paid the monies. Ultimately, after the court
a
quo
decided on the facts they are now financially strangled in the costs
of this appeal.
[5]
Moseneke J (as he then was) pointed out in his dissent in
Barkhuizen
v Napier
[2007] ZACC 5
;
2007 (5) SA 323
(CC) paragraph 98 that:
“
Public
policy cannot be determined at the behest of the idiosyncrasies of
individual contracting parties. If it were so, the determination
of
public policy would be held ransom by the infinite variations to be
found in any set of contracting parties.
”
The
right of access to court could never have been meant to serve conduct
such as Botha’s.
[6]
At the heart of the last sentence above is the basic premise that
commercial transactions, freely and
honestly entered into, and not
vitiated by fraud, misrepresentation, duress or public policy, should
be respected and enforced.
Botha’s case and defence was
throughout meritless and dishonest. I deem it necessary to highlight
some of the actions of
Botha to corroborate this. They are as
follows:
a) Botha was the
sole shareholder of a company whose sole assets was an immoveable
property. Throughout the time that he held
the shares the company did
not pay amounts levied in respect of rates and taxes at all. This is
the first sign that Botha deemed
himself above the law; he will not
pay rates and taxes like ordinary citizens. He admitted the neglect
to pay and then made representations
to the municipality claiming the
accounts were send to the wrong address whilst he supplied the same
address to the municipality.
b) Botha did not
disclose the existence of the municipal liabilities during the sale
of the shares and falsely warranted that
he disclosed all material
information to the purchaser.
c) He delayed the
matter with the municipality and with that did not offer security to
litigate to Iveco. This all whilst
Iveco’s business interest
suffered as a result.
d) He further
affected the right to commercial certainty of Iveco by claiming
prescription in the High Court and the Supreme
Court of Appeal that
were rejected in both instances.
The
issue of prescription was caused by the conduct of Botha; it caused
more litigation and delay.
e) Notwithstanding
the finding of the Supreme Court of Appeal that the indemnity clause
was applicable, activated by the conduct
of Botha, that Botha was
liable to pay Iveco the amount which Iveco had paid; Botha went to
trial disputing the same finding.
f) The court
a quo
ruled against him. A
s
was pointed out by the Supreme Court of Appeal, the court
a
quo
and Kruger J with whom I concur, t
he
indemnity
clause is clear and straightforward. The reasoning of Mr. Zietsman on
behalf of the appellant is desperate and a game
of semantics to shirk
liability; liability that Botha agreed upon in the contract and later
in communications.
g)
Further and tersely put, the quantum that had to be established in
terms of the indemnity clause, obviously so, was situated
between
Iveco and Botha and not between Botha and the municipality or Iveco
and the municipality. Extensive litigation on the issue
followed and
after Iveco did its utmost best to comply with a burden of proof that
was not theirs in the first place, Botha simply
declined to lead any
evidence on an issue that he started and claimed. He clearly, from
the start, did not have a case to rebut
the evidence put up by Iveco
and on which to support his own stance. He just litigated for the
sake of litigation and vexatiously
so.
h)
Twelve judges have dealt with the matter just to confirm the obvious
over and over.
ORDER
I would rule that the
appeal be dismissed and the orders of the court
a
quo
be
confirmed.
________________
M.
OPPERMAN, AJ
On behalf of
appellant:
Adv P Zietsman SC
Instructed
by:
McIntyre & Van Der
Post
BLOEMFONTEIN
On behalf of
respondent:
Adv D Vetten
Instructed
by:
Lovius-Block
BLOEMFONTEIN
/mo
[1]
Basson
v Chilwan and Others
(332/1991)
[1993] ZASCA 61; 1993 (3) SA 742 (AD); [1993] 2 All SA 373 (A) (17
May 1993)