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[2013] ZAGPPHC 295
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Zalenco Plant CC v Trollpe Mining Services 222 (Pty) Ltd (47580/11) [2013] ZAGPPHC 295 (16 October 2013)
NOT
REPORTABLE
GAUTENG
DIVISION OF THE HIGH COURT OF SOUTH AFRICA,
PRETORIA
CASE
NUMBER: 47580/11
DATE:16/10/2013
In
the matter between:
ZALENCO
PLANT
CC
.......................................................................................
PLAINTIFF
and
TROLLPE
MINING SERVICES 222 (PTY) LTD
......................................
RESPONDENT
JUDGMENT
HIEMSTRA
AJ
[1]
The plaintiff sued the defendant for damages flowing from the
defendant s alleged breach of contract.
[2] The plaintiff’s business is
the letting and operating of mining equipment to mining contractors.
The defendant is a mining
contractor with a number of operations on
the Mpumalanga Highveld.
[3]
The parties concluded an oral agreement during May 2010 in terms of
which the plaintiff would supply a water truck to the defendant
for
use at the defendant’s mining operations at the Kangra Mine
near Piet Retief, against payment of R270 per hour.
[4]
The sole member of the plaintiff is Mrs Shannon Kleynhans. In
concluding the agreement, the plaintiff was represented by Mr
Len
Kleynhans, the husband of Mrs Shannon Kleynhans. The defendant was
represented by Mr Fan- ie van Dyk, the area manager of the
defendant.
He was responsible for the mining operations at Kangra Mine and other
mines to which the defendant had been contracted.
The contract was
concluded telephonically.
[5]
At the commencement of the trial, the parties agreed that the issues
of quantum of damages and liability should be separated.
I
accordingly made such an order. The trial therefore concerned
liability only.
[6]
In issue in this matter is the duration of the agreement, the
plaintiff contending that it was for five years and the defendant
contending that it was a month-to-month contract, terminable on
reasonable notice.
[7]
Ten months into the agreement, during March 2011, Mr van Dyk, on
behalf of the defendant, gave notice of the termination of
the
contract to Mr Kleynhans by the end of May 2011. The reasonableness
of the notice period is not in issue. Accordingly it is
only the
duration of the contract that it in dispute. The plaintiff’s
claim is for damages equal to the loss of income for
the remainder of
the five years, or until he found an alternative lessee.
[8]
Mr Kleynhans testified on behalf of the plaintiff. He said that he
had purchased the water truck on behalf of the plaintiff
for R1 500
000 in terms of an instalment sale agreement over a term of five
years. In order to pay the instalments the plaintiff
needed a steady
monthly income for five years. He was emphatic that he had therefore
agreed with Mr van Dyk on a five-year contract,
to coincide with the
period of the instalment sale agreement. He further testified that he
had agreed to provide the water truck
for two 12-hour shifts per day,
which were later reduced to 10 hours per shift. For this purpose he
employed two drivers.
[9]
During November 2010, Mrs Shannon Kleynhans wanted to buy a motor
vehicle in the name of the plaintiff. In order to obtain finance,
the
bank required proof of income. Mr Kleynhans testified that Mrs
Kleynhans had then telephoned Mrs Celest Moller (then van Wyk),
the
personal assistant to Mr van Dyk, and requested a letter from the
defendant to confirm the monthly income from the water
truck.
Mrs Moller told her that she had no authority to issue such a letter
and suggested that she contact Mr van Dyk. She asked
her husband to
speak to Mr van Dyk. Mr Kleynhans duly phoned Mr van Dyk and
asked
for such a letter. Mr van Dyk gave permission and said that Mrs
Kleynhans should speak to Mrs Moller to make the arrangements.
It is
common cause that Mr van Dyk had authorised Mrs Moller to prepare
such a letter. She then drafted the following letter:
“
26
November 2010
To
whom it may concern
We
would herby like to confirm that Zalenco Plant CC, Reg No.
2009/206944/23, are currently working for Trollope Mining Services.
We have been using their services for the last year and we intend to
make use of their services for at least the next four years
or as
long as our projects allow thereafter.
It
is our intention to extend their services if business continues
beyond this time and projects and economy allow the use of their
services.
We
trust that you will find this in order.
Kind
regards
JS
VAN DYK PROJECT MANAGER”
[10]
Mrs Moller sent the letter to Mrs Kleynhans per e-mail to make sure
that it meets her requirements. Mrs Moller said that she
had not been
in her office, but that she was carrying her laptop computer with her
in order to make changes if necessary. Mrs Kleynhans
found the letter
in order and thanked Mrs Moller profusely. Neither Mrs Moller nor Mr
van Dyk signed the letter. Mrs Kleynhans
collected the letter from
the office of Mrs Moller. A signed copy of the letter was presented
to the bank. Both Mrs Moller and
Mr van Dyk denied that they had
signed it. The suspicion looms large that Mrs Kleynhans had signed on
the letter in an illegible
contrived handwriting. However, as it
turned out, nothing turns on this issue. The contents of the letter,
as drafted by Mrs Moller,
had not been changed. Upon a question by
the Court, Mrs Moller said that she had read the letter to Mr van Dyk
on the telephone
and that he had approved it. Any possible
skulduggery on the part of Mrs Kleynhans was probably in order to
satisfy the bank’s
requirements. The contents had been agreed
by Mr van Dyk.
[11]
Mr van Dyk and Mrs Moller testified on behalf of the defendant. Mr
van Dyk said that he had never agreed to a five-year contract.
He
said he could not have agreed to such a contract because the contract
of the defendant with Kangra Mining was for only 30 months
or until
the coal had been depleted. He admitted, however, that the defendant
had other projects where a water truck could be used.
He further
testified that the defendant only required the water truck because
the defendant’s own water truck had broken
down and for as long
as it took to repair it.
[12]
He further denied that he had instructed Mrs Moller to write the
letter of 26 November 2011 in the form that she did. He had
merely
authorised her to write a letter for the purpose that Mrs Kleynhans
required. He said that he did not know where Mrs Moller
had obtained
the facts set out therein. Mrs Moller said that Mrs Kleynhans had
told her what had to be in the letter and that she
had drafted it
according to Mrs Kleynhans’s request. However, she said that
she confirmed the contents with Mr van Dyk.
[13]
Mr Kleynhans testified that when he had arrived at the site during
May 2010, the foreman told him that the defendant had “stopped
the water truck”. He immediately phoned Mr van Dyk to ask him
about it. Mr van Dyk then told him that the defendant had acquired
its own water truck and that they no longer required the plaintiff’s
water truck. He said he had seen the water truck of
another company,
Phakaniso Logistics on the site. This company belongs to a certain
Gawie, who, it is common cause, had been in
a relationship with Mrs
Moller at one stage before her current marriage. Any insinuation that
Mrs Moller had somehow manipulated
the appointment of Gawie’s
company was not pursued by Mr de Klerk, appearing on behalf of the
plaintiff.
[14]
Mr van Dyk testified on behalf of the defendant. He admitted that he
had concluded the contract with the plaintiff. He said,
however, that
Mr Kleynhans had never mentioned the financing of the water truck to
him. He said that Mr Kleynhans had merely told
him that he had a
water truck available and offered its services to the defendant. He
said that the defendant’s own water
truck had broken down and
that they had to hire another one until their own water truck had
been repaired. He was thoroughly cross-examined
on the period that he
had envisioned for the repair of the defendant’s water truck,
but he could not give a satisfactory
answer. He did not know what was
wrong with the truck, and did not enquire as to how long it would be
out of operation. He remained
adamant that he could not have agreed
to a period of five years because of the limited duration of the
defendant’s contract
with Kangra.
[13]
After the defendant had closed its case, Mr De Klerk applied to
re-open the plaintiff’s case in order to call Mrs Kleynhans
to
testify. Mr Daniels, for the defendant, had no objection and I
therefore granted such permission. This application was made
at the
end of the first day of the trial and the court adjourned to the next
day. On the next day Mr de Klerk informed me that
he had decided not
to call Mrs Kleynhans.
[14]
Should I find that the parties had entered into a five-year contract,
the consequence is that the defendant had breached it
and the
plaintiff must succeed on the merits.
[15]
It is my task to attempt to resolve the issue by using the well-known
techniques, such as described in Stellenbosch Farmers’
Winery
Group Ltd & Another v Martell et Cie and Others
2003 (1) SA 11
(SCA). If, after examining the credibility of the witnesses and the
probabilities, I am unable to find the one version more probable
than
the other, then the plaintiff will not have succeeded in discharging
its onus of proof and I must absolve the defendant from
the instance.
THE
CREDIBILITY OF THE WITNESSES
[16]
Mr Kleynhans acquitted himself well in the witness box. His version
is logical and not improbable. The reason that he gave
for insisting
on a five-year contract appears compelling. The water truck had to
generate income in order for the plaintiff to
maintain the
instalments. It could be argued that it had been a mere expectation
and that the defendant had not actually agreed
to a five-
year
term. That is possible, but I must first decide whether the
defendant’s version passes muster.
[17]
Mr Daniels on behalf of the defendant urged me to draw a negative
inference from the fact that the plaintiff had not called
Mrs
Kleynhans. She could have shed light on the signature on the letter,
but that is not a crucial issue.
[18]
Mr van Dyk gave two versions as to why he could not grant the
plaintiff a five-year contract. The first is the limited duration
of
the defendant’s contract with Kangra, which was 30 months.
There is nothing inherently implausible about that. He admitted
however, that the defendant had other operations in the area where
water trucks were also being used and that his area of
responsibility
comprised such other operations. Moreover, the
letter of 26 November 2010 also refers to projects (plural). He
approved the contents
of the letter and it is not unreasonable to
infer that Mr van Dyk had at that time envisaged that the water truck
could be used
at any of projects where it might required. It was
therefore not impossible for the defendant to have agreed to a
five-year contract.
[19]
Mr van Dyk’s second reason why he could not have concluded a
five-year contract is that the defendant only required the
water
truck for the period that the defendant’s own water truck was
disabled. I find that unconvincing. He could give no
estimation of
the time it would take to repair it and appeared evasive. He said he
did not know what had been wrong with the truck,
that he had not
enquired about the extent of the breakdown and that he had no idea
how
long it would take to repair. He would not even venture a vague
estimation. It could have been a few days or a few weeks. As
it
turned out, it took ten months. However, during November 2010, when
the defendant had been using the plaintiff’s water
truck for a
period of about seven months, Mr van Dyk was prepared to inform the
plaintiff’s bank that the defendant intended
to use the
plaintiff’s services for at least the next four years or for as
long as their projects allow thereafter. If the
contract had only
been for the period that the defendant’s own water truck was
disabled, Mr van Dyk could not have given
the bank that assurance.
Not only did the defendant inform the bank that it would continue
using the services of the plaintiff
for at least the next four years,
but that they intended to extend the plaintiff’s services
beyond that time if their business
continues and the economy allows
the use of its services.” It can be inferred from the letter
that the defendant would use
the services of the plaintiff
indefinitely or for as long as the defendant remains in business.
[20]
For the above reasons, I am satisfied that on the probabilities, the
plaintiff has discharged its onus of proof.
In
the result I make the following order:
1.
The defendant is liable to pay to the plaintiff the amount damages
that the plaintiff may prove that it had suffered;
2.
The determination of the plaintiff’s damages is postponed sine
die;
3.
The defendant is ordered to pay the plaintiff’s costs.
J. HIEMSTRA
ACTING
JUDGE OF THE HIGH COURT OF SOUTH AFRICA
Date
heard:11 & 140ctober 2013
Date
of judgment: 18 October 2013
Counsel
for the plaintiff: Adv J.P.F. De Klerk
Attorney
for the plaintiff: Van Zyl Smith & Associates Inc
Counsel
for the defendant: Adv Jasper Daniels
Attorneys
for the defendant:Webber: Wentzel,
c/o
MacRobert Attorney