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[2013] ZAGPPHC 100
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Rene Viljoen t/a Warriors v Borduurders (A383/12) [2013] ZAGPPHC 100 (12 April 2013)
NORTH
GAUTENG HIGH COURT PRETORIA
CASE
NO:A383/12
DATE:12/04/2013
In
the matter between:
RENE
VILJOEN t/a
WARRIORS
...............................................................
Applicant
and
CARINE
BORDUURDERS
…...................................................................
Respondent
JUDGMENT
TEFFO.
J:
[1]
This is an appeal against the judgment handed down by Magistrate E
Mkhari for the district of Letaba in the Tzaneen Magistrate’s
Court on 26 March 2012.
[2]
The respondent was the plaintiff in the court below and the appellant
was the defendant. For purposes of this judgment I will
refer to the
parties as they were referred to in the court below.
[3]
The plaintiff sued the defendant for payment of the sum of R2 400,00
in respect of work done and materials supplied by the plaintiff
to
the defendant at the defendant’s special instance and request
on 28 February 2007.
[4]
It appears from the record that the defendant failed to enter an
appearance to defend and default judgment was granted in favour
of
the plaintiff. The defendant subsequently applied for and succeeded
with an application for the rescission of the default judgment.
The
defendant’s affidavit in support of her application for
rescission of judgment and the plaintiff’s opposing affidavit
form part of the record.
[5]
At the conclusion of the trial in the matter, the court granted
judgment in favour of the plaintiff for the amount claimed with
interest and costs.
[6]
The defendant appeals against the whole judgment on the following
grounds:
6.1
The magistrate, after having correctly found that the defences raised
in the plea were confirmed by the evidence led at the
trial, erred by
granting judgment in favour of the plaintiff.
6.2
The magistrate should have found that the onus rested on the
plaintiff to prove that:
6.2.1
The defendant traded as Warriors.
6.2.2
The defendant had performed fully and precisely in accordance with
the agreement.
6.3
The magistrate should have found that Warriors to whom the
plaintiff’s invoices were issued, was in fact the trading name
of a close corporation, Warriors Skills CC, and not that of the
defendant.
6.4
The magistrate should have found that the plaintiff had not performed
fully in that she failed to embroider the garments with
the Warriors
logo and failed to remedy the defective work when the garments were
returned to her for this purpose.
6.5
The magistrate erred by basing her entire judgment on a finding that
Mrs Van den Heever did not know the contents of the parcel
she took
to the plaintiff.
[7]
At the hearing of this appeal, counsel for the defendant raised
another ground of appeal, which was not included in the notice
of
appeal, to the effect
that
the plaintiff does not have locus standi to issue summons against the
defendant as the close corporation should have done so.
[8]
It is necessary to summarise the facts that led to the claim in order
to identify the issues that the trial court had to deliberate
upon.
[9]
Mrs Karin Engelbrecht (Karin) conducted a business known as Carine
Borduurders (the plaintiff) as a sole proprietor where she
sold
golf-shirts, t- shirts and overalls. She also did printing and
embroidery work on the clothes she sold.
[10]
The plaintiff previously did embroidery work for the defendant on the
jackets. This work was done three months before the defendant
placed
an order which is the subject of the matter before court.
[11]
In February 2007 the defendant placed an order where she requested
the plaintiff to sell and embroider the Warriors logo on
the t-shirts
and overalls. A dispute arose after the work was done.
[12]
According to the defendant she sent her children to fetch the goods
from the plaintiff. When she opened them she found that
the plaintiff
had embroidered an incorrect logo on the clothing.
[13]
The plaintiff contends that she performed as instructed. According
to her the logo that she had embroidered is the logo that
she
embroidered on the previous orders of the defendant. She had saved
the logo on the computer.
[14]
As a result the defendant requested her daughter, Rowena, to return
the goods to the plaintiff and explain to Karin what they
wanted.
Rowena returned the goods and explained what was required.
[15]
The defendant alleges that subsequent to that she sent one Tanya, one
of her staff members to go and fetch the goods. When
Tanya returned
with the goods, she found that nothing was done on them. They were
still the same with the incorrect logo. She then
requested her
mother-in-law, Mrs Anna Katrina van den Heever to return the goods
and explain the situation again to Karin.
[16]
In her evidence Mrs Van den Heever confirmed that she returned the
goods to the plaintiff and left them there.
[17]
Although Karin denies that the goods were returned to her for the
second time for rectification of the embroidery, she conceded
that
Mrs Van den Heever brought the goods back to her. She further alleged
that she gave Mrs Van den Heever the goods to return
to the defendant
and tell her that she cannot handpick the embroidery on the t-shirts
because the t-shirts would have holes. Mrs
Van den Heever disputes
this allegation and maintains that she would not have taken the goods
back to the defendant as she was
instructed to take them to Karin
because of the incorrect logo. Further that her son, Mr Rudolph
Viljoen (Rudi) would not have
accepted the clothing with an incorrect
logo.
[18]
Karin further testified that she asked the defendant to pay for the
goods many a times. Despite lawful demand the defendant
refuses
and/or neglects to pay the amount of R2 400,00 for the work done. She
alleges that the amount is due and payable as the
defendant should
have paid immediately after collecting the goods.
[19]
In her plea the defendant made the following averments:
19.1
She denies that she trades as Warriors and puts the plaintiff to the
proof thereof.
19.2
She pleads that Warriors Skills CC contracted with the plaintiff as
an independent contractor to supply it with certain overalls
and
t-shirts on which the Warriors logo had been embroided.
19.3
She denies that the plaintiff performed fully and precisely in
accordance with the agreement and states that the garments had
not
been embroided with the correct Warriors logo.
19.4
She accordingly raises the exceptio non adimpleti contractus and
pleads that the plaintiff is not entitled to any remuneration
unless
and until she has remedied the defective performance, either by
substituted performance or by an adjustment to the contract
price.
[20]
Two invoices marked Exhibits “A” and “B” in
the total amount of R2 400,02 were attached to the summons.
[21]
The trial court was required to determine the following issues, viz,
firstly, whether the plaintiff contracted with the defendant
in
person or whether the plaintiff contracted with the close
corporation; and secondly, whether the plaintiff performed fully and
precisely in accordance with the agreement.
[22]
This Court has to determine whether the court a quo had erred by
granting judgment in favour of the plaintiff in this matter.
[23]
As stated in para [7] above the defendant raised another ground of
appeal which does not appear in the notice of appeal. In
Leeuw v FNB
2010 (3) SA 410
(SCA) where the appellant persisted with an argument
that the respondent’s initial notice of appeal was fatally
defective
as it did not specify all the grounds of appeal, the court
rejected the argument and found that the object of a concise and
succinct
statement on the main points addressed in the notice of
appeal is also achieved by the heads of argument.
[24]
In her heads of argument the defendant raised an issue that does not
appear in the notice of appeal. The issue as highlighted
in para [7]
above is that the plaintiff does not have locus standi to issue
summons against the defendant. The defendant contends
that the
invoices that were issued by the plaintiff to her were issued in the
name of the close corporation. Counsel for the defendant
submitted
that it is trite law that a close corporation is a legal entity on
its own, it can only sue and be sued as a close corporation.
It is
common cause between the parties that this issue was never raised in
the notice of appeal and in the pleadings before court.
!t also
appears nowhere in the record of the court a quo. Counsel for the
defendant also submitted that in Leeuw v FNB it was held
that an
issue that was not raised as a ground of appeal in the notice of
appeal can be raised in the heads of argument. Counsel
for the
plaintiff disagrees and contends that the Leeuw matter is
distinguishable from the present matter in that all the issues
that
were raised in the Leeuw matter which were not included in the notice
of appeal but only in the heads of argument were ventilated
in the
court below and in the pleadings. He further submitted that the issue
of locus standi of the plaintiff was never raised
in the plea
although he conceded that the invoices were issued in the name of the
close corporation. I agree with the plaintiff’s
counsel that
indeed this issue was never raised in the pleadings and the court
below was also not aware that this was an issue
to be determined
before it. Counsel for the defendant also conceded that this issue
was never raised in the pleadings. This issue
can therefore not be
entertained for the reasons given above. It is therefore dismissed.
[25]
The next issue is whether the plaintiff contracted with the close
corporation or the defendant personally when the orders were
made.
The defendant in her plea to the plaintiff’s particulars of
claim denies that she trades as Warriors and alleges that
the close
corporation, Warriors Skills CC, contracted with the plaintiff as an
independent contractor. It is common cause between
the parties that
when the orders were made the plaintiff was requested to issue out
the invoices to Warriors and Warriors’
box number was given to
the plaintiff. The plaintiff was not requested to issue out the
invoices to the defendant trading as Warriors
and neither did it do
the same. The defendant’s evidence is that the defendant
herself is not a member of Warriors Skills
CC and neither is she
employed by the close corporation. Although the defendant concedes
that people in their area know them as
Warriors and not as a close
corporation, they only use the full name when they complete
documents. A CK2 form proves that Warriors
is a close corporation and
that the defendant’s husband, Rudolph Viljoen, is its only
member. The defendant testified that
she has never indicated to the
plaintiff that she traded as Warriors.
[26]
The plaintiff did not file a reply to the defendant’s plea. In
paragraph 10 of the plaintiff’s opposing affidavit
to the
defendant’s rescission application, the plaintiff alleges that
at all times it had been dealing with the applicant
(defendant) and
not with the close corporation. All dealings in this regard and on
previous occasions were done with the applicant
(defendant) directly
and personally. The applicant should be estopped to use this defence
as she created the impression that she
was trading as a firm. The
plaintiff’s opposing affidavit does not, however, form part of
the pleadings.
[27]
It is trite law that in order to rely on a defence, same must be
pleaded. The plaintiff failed to plead estoppel in any of
its
pleadings. It cannot therefore rely on estoppel. The fact that the
plaintiff issued out invoices in the name “Warriors"
is a
clear indication that it was not contracting with the defendant in
her personal capacity. The plaintiff has therefore failed
to
discharge its onus of proving that the defendant traded as Warriors
when the orders were made.
[28]
I now turn to deal with the merits of this claim. The reason why the
defendant is not paying the plaintiff for the work done
and the
materials supplied is according to the defendant that the plaintiff
failed to perform in accordance with the agreement.
In her plea the
defendant denies that the plaintiff performed fully and precisely in
accordance with the agreement and states that
the garments had not
been enbroidered with the correct Warriors logo. She further raises
the exceptio non adimpleti contractus
and pleads that the plaintiff
is not entitled to any remuneration unless and until she has remedied
the defective performance,
either by substituted performance or by an
adjustment to the contract price.
[29]
In her evidence-in-chief Karin, on behalf of the plaintiff testified
that when the goods and the embroidery were ordered, she
was
instructed to put the logo in front on the t-shirts and on the
overalls at the back. Further that previously she did a design
for
the front and the back. The logo was not changed and she put the same
logo on. Her further evidence was that she embroidered
the t-shirt
and the overalls with a feather instead of a Warriors logo because
that is what she did with the previous order. Under
cross-
examination she testified that the logos embroidered on the garments
were the same as the logos she had previously. She
further testified
that her instructions were to put the logo at the front on the
t-shirts and at the back and front on the overalls.
She also
testified that she knew what the logo was as she did it before and
she could remember exactly what logo to put on.
[30]
The principle of exceptio non adimpleti contractus was set out in the
case of Thompson v Scholtz
[1998] ZASCA 87
;
1999 (1) SA 232
(SCA) as follows:
“
There
are two major propositions in the judgment in BK Tooling (Edms) Bpk v
Scope Precision Engineering (Edms) Bpk
1979 (1) SA 391
(A). The first
is that the exceptio is available as a defence to a party from whom
performance is demanded by the other contracting
party whose
reciprocal performance has not been rendered precisely or in full;
the exceptio non adimpleti contractus accordingly
applies even if the
defect in the plaintiff's performance (short of being de minimis) is
not so serious as to justify its rejection
or the cancellation of the
contract by the defendant. Implicit in this proposition is the notion
that a plaintiff is precluded
from recovering any remuneration if his
performance falls short of perfection, even when the defendant,
notwithstanding its shortcomings,
accepts and utilises it.
[31]
Karin was shown the logo that she allegedly did previously and cross-
examined on it. It came out that the front logo was not
the same as
the one at the back.
[32]
The previous logo was as follows: There is a back and a front logo.
The back logo is a feather tied to the word “warriors.co.za
‘for the adventure of being alive”'. The word Warriors
looks like it is by way of sticks tied together with a string
and
what purports to be an elephant. The front logo is the name “Rene”
with a date with sticks "2006”. The
name “Rene"
is written in the normal black letters, the logo is a stick with a
feather.
[33]
It was put to her that the embroidery that she did only had a stick
and a feather meaning that it did not have the logo with
the word
"Warriors” in front and at the back. Her response was that
according to her knowledge and the way she did it
previously the
feather was the front logo and the bigger logo as instructed as for
the back. She further said her client told her
to make the logo
smaller for the front when she ordered more overalls.
[34]
When told that she did not put the Warriors logo anywhere, she
responded as follows:
“
On
the overalls yes because they said I must put the logo in front on
the t-shirts and on the overall on the front and at the back,
and
that is how I did it."
[35]
She conceded that there was no Warriors logo on the front of the t-
shirts. It was only a stick and a feather.
[36]
She also conceded that previously she did put the full Warriors logo
on the t-shirts.
[37]
It was revealed under cross-examination that the incorrect logo that
Karin used which did not have the word “Warriors”
was the
logo that she allegedly saved on her computer when the logos were
first designed.
[38]
On the other hand the defendant’s evidence was that her
instructions to Karin were for her to put the Warriors logo on
the
front centre of the t-shirts and on the overalls she wanted the
Warriors logo on the front left-hand side and the centre back
as big
as possible. According to her the same logo would have appeared on
the t-shirts and on the overalls. She also testified
that Karin asked
her to give her the logo and she did it correctly on the overalls.
[39]
Her further evidence was that when Rowena brought the garments home,
she opened them and found that on the overalls not all
the logos were
right. Some were missing. There was one with a red logo on the front
and the other did not have the logos at all.
The t-shirts had the
incorrect feather on and the incorrect embroidery on the front. The
t-shirts did not have the Warrior logo
at all.
[40]
On the probabilities it is clear that there was something wrong with
the embroidery that Karin did for the defendant. It is
common cause
that after the work was done the defendant sent her children to fetch
the garments. When she opened them she found
that an incorrect logo
was embroidered. Even Karin concedes that the t-shirts did not have
the Warriors logo at all although she
contends that that was the logo
that she used previously. From her own evidence it was clear that
what she regarded as the previous
logo was not the same as the logo
that she had put on the garments. This means that even the logo that
she regarded as the previous
logo that she used was not the correct
logo of the defendant. The defendant’s husband, Rudi, explained
the importance of
their logo to them when they market themselves and
when they do business with the outside world. The fact that the
garments were
taken back twice to the plaintiff for corrections, is a
clear indication that indeed the plaintiff had not performed
precisely
and fully in accordance with the agreement.
[41]
The plaintiff has therefore failed to discharge its onus of proving
that it has fully performed in accordance with the agreement.
[42]
In the circumstances I agree with the defendant that the exceptio
adimpleti contractus is applicable in this matter. Accordingly
the
plaintiff is precluded from recovering any remuneration if his
performance falls short of perfection, even when the defendant,
notwithstanding its shortcomings accepts and utilises it (Thompson v
Scholtz referred to supra). The plaintiff is therefore not
entitled
to remuneration unless and until it has remedied the defective
performance, either by substituted performance or by an
adjustment to
the contract price (Thompson v Scholtz).
[43]
A further issue that required determination by the trial court was
whether the goods were returned to the plaintiff.
[44]
According to the plaintiff’s evidence the garments are with the
defendant and the defendant is utilising them. She testified
that she
saw a certain gentleman wearing a golf-shirt. That evidence was not
taken any further. Nothing has been said with regard
to this person,
whether the person has any connections with the defendant. On the
other hand the defendant’s evidence is
that the last time she
spoke with Karin was after she had sent her mother-in-law, Anna
Katrina van den Heever, to return the garments
to her when she phoned
her and told her that she cannot handpick the embroidery on the
t-shirts as the t-shirts would have holes.
At the time she made some
suggestions which were not acceptable to the defendant. Finally
realising that the defendant was not
accepting any of her
suggestions, she requested her to ask the children to sell the
t-shirts to cover the costs. Karin disputes
this evidence and alleges
that since the garments were taken to the defendant she never spoke
to the defendant. The only person
she spoke to was the defendant’s
mother-in-law when she brought the garments to her and complained
that she had embroidered
the incorrect logo. She testified that she
told her to return the garments to the defendant and tell her that
she cannot handpick
the embroidery on the t-shirts as they would have
holes. From there she never heard anything from the defendant. Mrs
Van den Heever
disputes that she was given the garments back by Karin
to return to the defendant. She further testified that she would not
have
taken them back because her instructions were for her to take
them to Karin because she had embroidered an incorrect logo and that
Rudi would not have accepted them with the incorrect logo. The
defendant denies being in possession of the goods and contends that
they could not wear the garments which do not have their logo on.
She also testified that Karin knows that she did not accept
the work.
[45]
If one takes the evidence in its entirety one wonders why would the
defendant who has shown her dissatisfaction about the work
that was
done and supplied to her by the plaintiff take the same work back to
her possession if the defective performance was not
rectified. The
probabilities favour the defendant that she would surely have taken
back the garments which did not have their correct
logo if the work
that she complained about was not corrected. Karin testified that she
performed as agreed and the defendant accepted
the work. This
evidence is contradicted by the defendant’s evidence that she
was not happy about the work done and she returned
the garments to
the plaintiff twice. Even the plaintiff through Karin’s
evidence conceded that the defendant’s mother-in-law,
Mrs Van
den Heever brought the garments to them and complained that the work
was not properly done. This contradicts plaintiff’s
earlier
evidence that the work was done in accordance with the agreement and
that the defendant accepted it. Initially in her evidence
Karin
testified that the goods were not returned to her. Later on she
conceded that Mrs Van den Heever returned the goods and asked
her to
take them back to the defendant. It is strange for Karin to give the
goods to Mrs Van den Heever to take back to defendant
without talking
to the defendant. It is probable that while the goods were with Karin
after they were left by Mrs Van den Heever,
Karin phoned the
defendant and negotiated with her as alluded to by the defendant in
her testimony. I am therefore persuaded that
the goods were returned
to the plaintiff by the defendant through Mrs Van den Heever and
they
were never taken back to the defendant. There is absolutely no reason
why the goods could be with defendant if she could not
use them and
the purpose for which they were made was not achieved.
[46]
In her judgment the learned magistrate did not deal with the issue of
who were the contracting parties when the order was made.
[47]
The learned magistrate based her judgment on the fact that Mrs Van
den Heever in her evidence testified that she did not open
the parcel
and check the goods when she was sent by the defendant to take it
back to the plaintiff. She accordingly held that because
Mrs Van den
Heever did not know what was contained in the parcel, the exceptio
non adimpleti contractus was not applicable and
that defendant’s
defence must fail. This finding is indeed misplaced if one takes the
evidence in its entirety. The plaintiffs
evidence was to the effect
that Mrs Van den Heever brought the goods to Karin and Karin told her
take them back to the defendant
and tell her that she cannot handpick
the t-shirts as they would have holes. It was therefore common cause
between the parties
that Mrs Van den Heever took the garments back to
the plaintiff for correction of the logo. The learned magistrate has
therefore
misdirected herself in this regard and had erred in
granting judgment in favour of the plaintiff for the reasons given
above. The
appeal must therefore succeed under the circumstances.
[48]
In the result I make the following order:
48.1
The appeal is upheld with costs.
48.2
The order of the court below is set aside and replaced with the
following order:
“
The
action is dismissed with costs."
M
J TEFFO
JUDGE
OFTHE NORTH GAUTENG HIGH COURT, PRETORIA
I
agree:
J
F VAN SCHALKWYK
JUDGE
OF THE HIGH COURT
GAUTENG
/HIGH COURT, PRETORIA
HEARD
ON: 7 FEBRUARY 2013
FOR
THE APPELLANT: SAVISSER
INSTRUCTED
BY:STEWART MARITZ BASSON
FOR
THE RESPONDENT: L K VAN DER MERWE
INSTRUCTED
BY:MESSRS VEZI & DE BEER