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[2013] ZAFSHC 171
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Valodia v Cooper Bezuidenhout Inc and Others (2387/2013) [2013] ZAFSHC 171 (26 September 2013)
FREE STATE HIGH
COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Case No. : 2387/2013
In the matter between:-
HASSAN MAHOMED
VALODIA
..................................................
.Applicant
and
COOPER BEZUIDENHOUT
INCORPORATED
...............
First
Respondent
DONOVAN THEODORE
MAJIEDT N.O.
.....................
Second
Respondent
BRIAN ITUMELENG
NAKEDI N.O.
.................................
Third
Respondent
NORMAN KLEIN N.O.
...................................................
Fourth
Respondent
JAICHAND HARIPERSAD
N.O.
.......................................
Fifth
Respondent
VIDHIAWATHIE
HARIPERSAD N.O.
..............................
Sixth
Respondent
THE MASTER OF THE
FREE STATE
HIGH COURT
..............................................................
Seventh
Respondent
_______________________________________________________
HEARD ON:
20 SEPTEMBER 2013
_______________________________________________________
JUDGMENT BY:
DE WET, AJ
_______________________________________________________
DELIVERED:
26 SEPTEMBER 2013
_______________________________________________________
[1] The second, third and
fourth respondents apply for leave to appeal against the judgment
dated 29 August 2013 on numerous grounds
as set out in their notice
of application for leave to appeal dated 3 September 2013.
[2] I considered each and
every one of the grounds, but deals only with the ones explicitly
relied on by respondents’ counsel
during argument.
[3] In argument
respondents’ counsel without abandoning any of the grounds of
appeal concentrated mainly on the applicability
of the non-variation
clause in the written agreement between the parties (clause 22) and
referred the court
inter alia
to the cases of
Nyandeni
Local Municipality v Hlazo
2010 (4) SA 261
(ECM),
GF v
SH and Others
2011 (3) SA 25
(GNP),
Steyn and Another v
Karee Kloof Melkery (Pty) Ltd
(unreported) SGJ case number
2009/45448,
Nedbank Bpk v Pickor Thirty One Bk and Others
(unreported) FSB case number 6137/2009 and
Absa Bank Ltd v
Malherbe
(unreported) FSB case number 5077/2012.
[4] The Free State High
Court cases above are distinguishable from the present matter as both
deal with summary judgment which is
a remedy with its own unique
attributes. Van Zyl J states in the
Nedbank Bpk
matter,
supra
, that the oral amendment of the written agreement has to
be accepted as a defence “for purposes of summary judgment
procedure”.
[5] The cases of
Nyandeni
Local Municipality
, heavily relied on by counsel for
respondents and the cases of
GF v SH and Others
and
Steyn and Another
,
supra
, all dealt with
circumstances where the demands and the requirements of public policy
justified a departure from the Shifren-principle
(according to the
judges).
[6] In
Brisley v
Drotsky
2002 (4) SA 1
(HHA) the majority of judges dealt
fully with an argument that the Shifren-principle could not be
enforced “omdat dit in
die omstandighede onredelik, onbillik en
in stryd met die beginsels van
bona fides
(goeie trou) is”.
[7] The learned judges
dealt fully with good faith and came to the conclusion “goeie
trou is ‘n grondbeginsel wat in
die algemeen onderliggend is
aan die Kontraktereg en wat uiting vind in die besondere reëls
en beginsels daarvan”. The
learned judges then proceed to point
out that “’n ander waarde onderliggend aan die
Kontraktereg is dat kontrakte wat
vrylik en in alle erns deur
bevoegde partye aangegaan is, in die openbare belang afgedwing word.
Die taak van die howe is om hierdie
waardes wat soms met mekaar in
botsing kom teen mekaar op te weeg en om by geleentheid wanneer dit
nodig blyk te wees… aanpassings
te maak”. See also
De
Villies v McKay NO and Another
[2008] ZASCA 16
;
2008 (4) SA 161
(SCA) 163 C –
D.
[8] I found on the
evidence no conduct by the applicant that justify a departure from
the firmly entrenched Shifren-principle and
I am satisfied that the
parties were bound by the terms of their written agreement.
[9] The judgment was
further criticised by counsel for respondents stating that the
court’s finding that the evidence relied
on by respondents,
namely that applicant and the Haripersad Family Trust were in
cahoots, was not sufficient to allow the court
to make such a
finding, was wrong and that it in fact imposed an onus on the
respondents to prove the allegations.
[10] The argument is not
correct. The court placed no onus whatsoever on the respondents. What
the court tried to convey in the
judgment was only that there were no
facts in the opposing affidavits on which the court could find that
applicant was in cahoots
with the respondents. The suspicion referred
to is a deduction from the facts made by counsel for respondents in
argument not supported
by facts in the opposing affidavit and nothing
more than speculation at its best.
[11] I carefully
considered the facts in the affidavits, the judgment and the
arguments of counsel and I also bear in the mind the
remarks of
Cloete J in
Janit v Van den Heever and Another NNO (No 2)
2001 (1) SA 1062
(WLD) 1065:
“
If the
decision against which leave to appeal is sought is wrong, leave to
appeal can be granted on petition; but it is not for
a lower Court to
sanction appeal proceedings unless there are reasonable prospects
that the appeal might succeed.”
[12] I came to the
conclusion that there are no reasonable prospects of success on
appeal and I according make the following order:
1. The
application for leave to appeal is dismissed.
2. The
second, third and fourth respondents are ordered to pay the costs of
the application.
________________
P.J.T. DE WET, AJ
On behalf of applicant:
Adv P.U. Fischer
Instructed by:
Lovius Block Attorneys
BLOEMFONTEIN
On behalf of second,
third
and fourth respondents:
Adv Steyn
Instructed by:
Christo Dippenaar
Attorneys
BLOEMFONTEIN
/spieterse