EC Chenia and Sons CC v Lamé and Van Blerk (303/05) [2006] ZASCA 10; 2006 (4) SA 574 (SCA); [2006] SCA 16 (RSA) (17 March 2006)

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EC Chenia and Sons CC v Lamé and Van Blerk (303/05) [2006] ZASCA 10; 2006 (4) SA 574 (SCA); [2006] SCA 16 (RSA) (17 March 2006)

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THE
SUPREME COURT OF APPEAL
OF
SOUTH AFRICA
REPORTABLE
Case number : 303/05
In the
matter between :
E C
CHENIA & SONS CC APPELLANT
and
LAMé & VAN BLERK RESPONDENT
CORAM : BRAND, LEWIS
et
HEHER JJA
HEARD : 9 MARCH 2006
DELIVERED : 17 MARCH 2006
Summary
: Contractual claim – not based on
tacit contract as contended for by the defendant – evidence
departing from pleadings – question
one of prejudice to the other
side.
Neutral citation: This judgment may be referred to as
Chenia &
Sons CC v Lamé & Van Blerk
[2006] SCA 16 (RSA)
_____________________________________________________
JUDGMENT
BRAND JA
/
BRAND JA
:
[1] This appeal has its origin in the magistrate’s
court for the district of Vereeniging. The respondent ('plaintiff'),
a partnership
of consulting civil and structural engineers,
instituted action against the appellant ('defendant') for payment of
an amount of R22
852,80. In the summons, the plaintiff’s cause of
action was described as a claim for 'professional services rendered
by plaintiff
to defendant at the latter's special instance and
request'. This ‘special instance and request’ was denied by the
defendant in
its plea.
[2] At the end of the trial proceedings, the magistrate
granted judgment in favour of the plaintiff for the amount claimed
together
with interest and costs. The defendant’s appeal against
that judgment was dismissed by the Johannesburg High Court (Goldstein
J
with Khampepe J concurring). The further appeal to this court is
with the leave of the court
a quo
.
[3] Central to the defendant’s case on appeal is the
proposition that the evidence led by the plaintiff at the trial was
not covered
by its pleadings. In the event, so the defendant
contended, both the trial court and the court
a quo
erred in
holding for the plaintiff on the basis of that evidence. The
evaluation of this contention clearly requires a comparison
of the
allegations in the pleadings with the evidence led at the trial. I
first deal with the pleadings. As I have said, the summons,
rather
tersely, indicated that the plaintiff’s claim was for ‘professional
services rendered at the defendant’s special instance
and request
on or about 31 January 2002’. In response to the defendant’s
request for further particulars, the plaintiff added
the following
allegations: that the professional services included ‘structural
advice, drawing of plans . . . on upgrading and
extension of the old
building’; that these services were rendered during about January
and February 2002, and that the ‘special
instance and request’
had been made by Mr Chenia, on behalf of the defendant, to Mr Da
Silva, on behalf of the plaintiff. The defendant’s
plea to these
allegations read as follows:
‘
1. The defendant denies that it requested and
insisted on the rendering of professional services by the plaintiff
as alleged, or at
all.
1.1 In amplification of the aforegoing the defendant
denies any knowledge of a certain Mr Da Silva and that any request or
insistence
was directed to him by the defendant as alleged.
2. The defendant has no knowledge of the professional
services allegedly rendered and accordingly cannot admit or deny
same.
3. The
defendant denies that it is indebted in the amount claimed, or any
amount at all to the plaintiff.’
[4] I now turn to the evidence led at the trial. The
plaintiff's main witness was Mr Carlos da Silva, a qualified civil
engineer,
who practiced in association with the plaintiff
partnership. During January 2002, so he testified, he had been
approached by an architect,
Mr Nathan Heiman, who had been contracted
by the defendant on a certain building project, with the proposal
that the plaintiff should
join the consulting team for the project.
Apart from the plaintiff, the team would consist of Heiman’s firm
as architects and Mr
Pieter Nieman, as quantity surveyor. Da Silva
found Heiman's proposal acceptable. He therefore wrote a letter to
the defendant on
31 January 2002. As it turned out, this letter
became one of two pivotal elements of the plaintiff's case. It was
addressed to 'Bargain
Stores', (the defendant's trade name), and
marked ‘for the attention of Mr Chenia, snr’. Its subject matter
was described in
the heading as relating to 'additions to Bargain
Stores, Vereeniging'. The relevant part then reads as follows:
'At the request of the architects for the project
mentioned above we would like to present to you the cost of our
services for your
consideration.
...
[T]he cost of the work on the above project for which we are
responsible is estimated by ourselves as R269 500, 00.
Based on the above the fee according to the Engineering
Profession of South Africa Act, 1990 (Act 114 of 1990) [is]: . . .
R30240,50.
.
. . We hope the above meets with your requirements and hope further
to hear from you soon.'
[5] According to Da Silva he did not receive an answer
to this letter. Though he realised that he had not been appointed
until he
received a positive response, he nevertheless attended
meetings in January and February 2002 with the other members of the
consulting
team and started to prepare the structural plans for which
he would be responsible, obviously in the hope that his appointment
by
the defendant (as the client and principal) would follow. At the
beginning of March 2002 the quantity surveyor, Nieman, telephoned
Da
Silva. He wanted the plans and specifications that had been prepared
by Da Silva in order to complete his bill of quantities.
Da Silva
explained to him that he could not provide him with the requested
information, because he had not as yet been appointed
by the
defendant. On 12 March Da Silva received a telephone call from the
defendant’s Mr Chenia. The ensuing conversation became
the second
pivotal element of the plaintiff's case. Chenia wanted to know
whether the engineering input required by Nieman was really
necessary. Upon Da Silva's confirmation that it was so, Chenia
essentially told him to carry on and complete whatever engineering
work was required to provide Nieman with the information that he
needed. On 15 March 2002 Da Silva then complied with what had clearly
been an instruction from Chenia. With regard to the amount claimed by
the plaintiff, Da Silva's evidence was that it was calculated
in
accordance with the tariff referred to in his letter to the
defendant, of 31 January 2002, which is quoted in para [4] above.
This amount was less than the amount estimated in the letter, so Da
Silva explained, because he had been told by the architect that
Chenia had decided to abandon the project prior to its completion.
[6] Although Da Silva was cross-examined on the contents
of his version, its veracity was never challenged. Heiman and Nieman
also
testified on behalf of the plaintiff. They confirmed what Da
Silva had said in so far as they were directly involved. Thus, for
example,
they corroborated Da Silva’s version that they required
the engineering services rendered by him in order to perform their
respective
functions on the project and testified that they had
informed Chenia accordingly; that at first, Da Silva would not
provide them
with the product of these services, because he told them
that he had not received an appointment by the defendant.
Subsequently,
however, he did provide them with what they required.
They therefore assumed that he had eventually been properly
appointed. They
could not say, of course, whether this in fact
occurred. As things turned out, however, their inability to
corroborate Da Silva in
this respect was of no consequence. In the
end, Da Silva’s version needed no confirmation since the defendant
closed its case without
leading any evidence and Da Silva’s
evidence was never impugned.
[7] Essential to the finding in favour of the plaintiff
by both the trial court and the court
a quo
was their
conclusion that the plaintiff had succeeded in establishing a
contractual link (
locatio conductio operis
)
between the
parties. The defendant’s objection on appeal was in essence that
that conclusion was based on evidence not foreshadowed
in the
plaintiff’s pleadings. The main argument in support of that
objection, at least until the early stages of the hearing before
us,
was based on the following three propositions:
(a) On
a proper construction of the summons, the plaintiff’s claim relied
on an express agreement for the rendering of professional
services at
a fee of R22 852,80.
(b) It
is impermissible for a party relying on an express agreement to lead
evidence which would establish a tacit agreement.
(c) The
contract that both courts below found to have been established on the
evidence, was a tacit agreement, which constituted a
finding not
permissible under (a) and (b).
[8] With regard to proposition (a) it appears to be
generally accepted that a party who seeks to rely on a contract which
was tacitly
concluded, must specifically allege that the contract
relied upon is a tacit one. In the absence of such allegation it will
be assumed
that the contract relied upon was expressly concluded (see
eg
Roberts Construction Ltd v Dominion Earthworks (Pty) Ltd
1968
(3) SA 255
(A) 260A-H;
Alphedie Investments (Pty) Ltd v Greentops
Ltd
1975 (1) SA 161
(T) 162T-163A). The proposition in (b)
likewise seems to be in accordance with general principles (see eg
Clegg v Groenewald
1970 (3) SA 90
(C) 94G-H;
Roos v
Engineering Fabricators (Edms) Bpk
1974 (3) SA 545
(A)). The
acceptance of this line of argument therefore turns on the validity
of proposition (c). Can it be said that the agreement
established by
the evidence was a tacit one? Or did the evidence in fact show an
express agreement? I think the latter was the case.
[9] Generally speaking, a tacit agreement is one where
either the offer or the acceptance, or both, is/are to be inferred
from conduct.
An express agreement, on the other hand, is one where
both these elements of the contract were expressed in words, either
orally
or in writing. On a proper analysis, the contract which formed
the basis of the finding by both courts below came into existence
through the oral acceptance of a written offer. The written offer was
made by Da Silva in his letter of 31 January 2002 while the
oral
acceptance of this offer by Chenia occurred during the telephone
conversation of 12 March 2002. Since both the offer and the
acceptance were thus articulated in words, there can be no suggestion
of a tacit agreement.
[10] When it became apparent at the hearing that this
line of argument could not be sustained, counsel for the defendant
changed tack.
He then argued that neither the letter of 31 January
2002 nor the contents of the conversation of 12 March were
sufficiently precise
and detailed enough to meet with the
requirements of a contract. That, of course is a different matter. If
both the offer and the
acceptance were not unambiguous, there would
be no contract at all. It would not render the contract a tacit one.
In any event, I
cannot find anything ambiguous in either the written
offer or the oral acceptance. Read in context, the offer was capable
of only
one construction: the plaintiff would do the engineering work
required for the building project concerned at a fee calculated in
accordance with a specified tariff. Chenia's oral instruction 'to go
ahead and do the work which is necessary' is likewise capable
of only
one interpretation; namely, that he accepted the offer contained in
the letter in accordance with its tenor including the
plaintiff's
remuneration. Even if the terms of the letter fell short of setting
out the precise contract price, there is no reason
why the parties to
a contract of
locatio conductio operis
, like the present,
cannot validly agree, as the letter indeed proposed, that the
remuneration of the
conductor
will be calculated in accordance
with a specified tariff.
[11] The defendant’s further argument was exclusively
reliant on the fact that no mention was made in the plaintiff’s
pleadings
of what turned out to be the second element of its case,
namely the telephone conversation of 12 March 2002. What the
plaintiff relied
on in its pleadings, the defendant’s counsel
pointed out, was an agreement concluded on or about 31 January 2002,
which, so counsel
submitted, left no room for the acceptance of an
offer on 12 March 2002. Because of this, so the argument went, any
evidence with
regard to that conversation was irrelevant and
inadmissible. In consequence, there was no need for the defendant to
challenge that
evidence, either in cross-examination or by putting up
a contradictory version. In the circumstances the defendant was
irreparably
prejudiced when both the courts allowed the plaintiff to
rely on the conversation to establish an indispensable part of its
case.
Support for this line of argument was sought in certain
dicta
by Innes CJ in
Robinson v Randfontein Estates GM Co Ltd
1925
AD 173
at 198 to the effect that ‘parties should be kept strictly
to their pleadings’.
[12] These
dicta
must, however, be read in their
full context. What Innes CJ said (at 198) was:
‘
The object of pleading is to define the issues; and
parties will be kept strictly to their pleas where any departure
would cause prejudice
or would prevent full enquiry. But within those
limits the court has a wide discretion for pleadings are made for the
court not the
court for the pleadings.’
[13] The question is therefore one of prejudice. Can the
defendant’s plea of prejudice be sustained? For a number of
reasons, I
think not. First, the departure from the pleadings
complained of did not relate to the real issue between the parties
which was whether
there was any agreement between the parties at all.
It did not concern the date upon which any notional agreement could
have been
concluded. That much was underscored in the defendant’s
plea which not only denied the agreement alleged by the plaintiff,
but
also any agreement for the rendering of professional services
between the parties (see para [3] above). The second reason is that
Da Silva’s evidence did not depart from the plaintiff’s pleadings
in any material respect. A comparison between Da Silva’s
evidence
and the allegations in the plaintiff’s pleadings shows that the
parties to the contract and their representatives remained
the same.
So did the terms of the contract and the time period during which
plaintiff had performed its obligations in compliance
with these
terms. Even the date of the offer (ie the letter of 31 January 2002)
was correctly set out in the pleadings. The only
element unaccounted
for was the precise date of acceptance. This departure cannot, in my
view, be said to be material, particularly
when read with the
explicit statement in the defendant’s plea that its representative,
Chenia, had never even heard of Da Silva
before (see para [3] above).
[15] A third reason why the defendant’s reliance on
prejudice is, in my view, unsustainable flows from the failure by the
defendant’s
counsel to raise any objection at the trial when Da
Silva gave his evidence regarding the conversation of 12 March 2002.
If counsel
really believed that this evidence was irrelevant and thus
inadmissible because it was not covered by the pleadings, he should
have
objected there and then. The plaintiff could then have tried to
persuade the trial court that the evidence was indeed covered by
the
pleadings or, otherwise, sought an amendment. A party cannot be
allowed to lull its opponent into a false sense of security by
allowing evidence in the trial court without objection and then argue
at the end of the trial, or on appeal, that such evidence should
be
ignored because it was inadmissible. It seems to me that when the
defendant’s counsel decided not to challenge both the admissibility
and substance of Da Silva’s evidence, he took a calculated risk and
any possible prejudice resulting from such failure must be
ascribed
to the realisation of that risk and not to the plaintiff’s
departure from its pleadings.
[16] In
the result, the appeal is dismissed with costs.
………………
.
F
D J BRAND
JUDGE OF APPEAL
Concur
: Lewis
JA
Heher
JA