About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: South Gauteng High Court, Johannesburg
SAFLII
>>
Databases
>>
South Africa: South Gauteng High Court, Johannesburg
>>
2009
>>
[2009] ZAGPJHC 23
|
|
Powell v Roux (A5028/08) [2009] ZAGPJHC 23 (29 May 2009)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN THE SOUTH
GAUTENG HIGH COURT
(JOHANNESBURG)
APPEAL CASE NO: A5028/08
CASE NO: 2005/26341
In the matter between:
POWELL: OLIVER
MICHAEL
Appellant/Plaintiff
and
ROUX: LYNETTE
Respondent/Defendant
______________________________________________________________
JUDGMENT
SALDULKER, J:
A. INTRODUCTION:
[1] This is an
appeal
against the judgment and order delivered by his Lordship Acting
Justice De Jager on 8 July 2008.
[2] The
appeal involves the interpretation of letters written by the
appellant to the respondent and the respondent’s reply thereto.
The appeal is with the leave of the court a quo.
B. BACKGROUND:
[3]
The appellant instituted an action against the respondent for
damages, for alleged defamatory statements contained in a report
written by the respondent, a clinical psychologist. The report was
submitted to the Family Advocate in a litigation between the
appellant and one Linda Petzer, who became embroiled in a custody/
access dispute concerning B, a minor child born from their
relationship. The respondent was appointed as a clinical psychologist
to perform forensic work and to furnish a report to the family
advocate concerning access. The respondent furnished the family
advocate with a report which she supplemented during March 2005.
[4
]
The respondent defended the action and the matter was set down on the
trial roll for 30 January 2007. During December 2006, the
appellant
wrote a letter to the respondent. The interpretation of the contents
of that letter and the reply thereto became a bone
of contention
between the parties. The dispute centres around their respective
interpretations.
[5] The material
terms of the undated letter (the first letter
1
),read
inter alia as follows:
“
For a
number of reasons and in view of the fact that I have been satisfied
by more than one independent expert that your diagnosis
of me is
flawed and misdirected,
I
do not intend pursuing the action against you.
I have taken this decision for a number of reasons including the fact
that I wish to get on with my life and address those post
traumatic
stress disorder issues that may be impacting on me in my daily
“functioning”. Consequently, no useful purpose
will be
served to waste any more time and resources joining issue with you on
your unsupported , flawed and malicious mis-diagnosis
of me.
In the
result, I shall not be proceeding with my action against you
.
The Medical and Dental Council must take such action against you as
it deems meet.
My proposal
is that each party pays his/her own costs and the matter be withdrawn
from the roll.
Please
revert to me on your attitude to the proposal”.
(my underlining)
[6] The respondent
replied
2
(the
second letter) inter alia as follows:
“
We do not
intend to respond to any of the allegations made in that telefax save
for the proposal which is contained in the last
paragraph of your
telefax. In not responding to the allegations which you make in the
telefax our client is not to be deemed to
have conceded that any of
those allegations are correct.
Without being
too technical, the settlement to which our client is willing to agree
is not that the matter be withdrawn from the
roll(which would simply
remove it from the trial roll for hearing) but that the action itself
must be withdrawn.
Our
client is willing to settle the action on the basis that the action
is withdrawn, and that each party pays his/her own costs.
On the
assumption that this is the basis of the settlement which was
intended to be conveyed in your telefax, please could you arrange
for
the action to be withdrawn by delivery of the appropriate Notice of
Withdrawal.”
(my underlining)
[7] After the
exchange of these letters , the appellant wrote to the respondent
advising her that he had been urged to proceed
with the action
3
and that in the circumstances he would be applying for a postponement
of the action.
[8] There was an
exchange of correspondence
4
between the parties before the respondent agreed to the postponement
of the action at the appellant’s cost on the 23 January
2007.
However the respondent’s rights were at all times reserved.
During May 2007, the appellant amended his claim to introduce
two
further claims and the respondent then introduced a special plea.
[9
]
The Respondent’s special plea
5
read as follows:
“
1. On or
about the 7
th
day of December 2006, the Plaintiff advised the Defendant that he
would not be proceeding with his action against her and proposed
that
the action be settled by each party bearing their own costs in the
action (“the notification”).
2. The notification was in writing
and a copy thereof is annexed hereto marked “LR1”.
3. ON 11 December 2006, the
Defendant duly represented by Bowman Gilfillan Attorneys accepted the
settlement agreement and agreed
to bear her own costs in the action
(“the acceptance”).
4. The acceptance was in writing
and a copy thereof is annexed hereto marked “LR2”.
5. The action
has accordingly been settled between the parties
.”
[10
]
The special plea was upheld by the court a quo which found that a
settlement agreement had been concluded and that the appellant
had
failed to prove a waiver
6
or an estoppel as raised in the appellant’s replication to the
defendant’s plea.
[11
]
It is against these findings that the appellant appeals. It is the
appellant’s contention that the court a quo ought to
have found
that no settlement had been reached and that the special plea should
have been dismissed with costs.
[12
]According
to the respondent, the letter formed the basis of a settlement
agreement between the parties.
[13
]
Advocate Sutherland for the appellant argued that on a plain reading
of the first letter there was no agreement of settlement
but an
enquiry. It was not an offer and all that the letter suggested was
that the matter be removed from the roll. He contended
that the
appellant did not offer to withdraw the action. Had the respondent
believed that the matter was settled from the contents
of the first
letter, then the respondent should have filed a special plea to this
effect, instead of agreeing to a postponement.
The latter conduct of
the respondent cast a doubt on the respondent’s belief that the
matter was at an end.
[14]
Did
the first letter convey sufficiently that the action had become
settled? In my view this question must be answered in the
affirmative.
There is nothing whatsoever in the terms of the letter
that suggests the contrary. The terms of the first letter clearly
indicate
in unequivocal terms that the appellant was no longer
proceeding with the action against the respondent and made settlement
proposals
on the basis that the action is withdrawn and each party is
to pay its own costs. This was the offer put on the table.
[15] The intention
behind the words
“My
proposal is that each party pays his/her own costs
”..,
can only be interpreted to mean
that the appellant was concerned about the issue with regard to the
costs now that he no longer intended pursuing the action.
His offer
to the respondent was that in such circumstances, the respondent was
to bear her own costs, and that “the matter
be withdrawn from
the roll”.
[16
]
The respondent responded as follows in the second letter :
“
Our
client is willing to settle the action on the basis that the action
is withdrawn, and that each party pays his/her own costs.
On the
assumption that this is the basis of the settlement ….”
was
an acceptance of the settlement proposal of the appellant. This is a
clear and unequivocal response and an acceptance of the
appellant’s
offer.
[17
]
Did the appellant abandon his action against the Respondent in
writing?This question must be answered in the affirmative. The
appellant put up an offer after saying that he was not proceeding
with the action. The offer was that each party was to pay its
own
costs and the matter be removed from the roll. He clearly proposed
an end to the litigation. The offer was reasonably understood
by the
respondent to mean that the matter was over. The Appellant made his
intention clear in the words “
I
do not intend pursuing the action, I shall not be proceeding with my
action against you, my proposal is that each party pays its
on costs
and the matter be removed from the roll”.
[18] The terms of
the first letter is clear and unambiguous. It is in plain English
conveyin
g
more than adequately the appellant’s intentions that the
appellant does not intend pursuing the action against the respondent:
“
I shall
not be proceeding with my action against you”
,
means in plain language exactly that, conveying the nub of the
detailed letter to the respondent. The purport of the letter clearly
reveals the intention of the appellant. It is not written in vague or
ambiguous terms but in explicit and candid language thereby
conveying
its ordinary grammatical meaning. There is in my view no doubt as to
its literal significance. The interpretation of
these words finds
support in the body of the letter which on close scrutiny intimated
the appellant’s reasons not to proceed
with the litigation
against the respondent and must therefore be understood in that
context. I am not persuaded that the letter
was an enquiry written in
a “tentative tone.” It clearly alerted the respondent to
what the appellant had in mind which
was a settlement of the action.
C. WAIVER/ESTOPPEL:
[19
]
The appellant has contended that the respondent’s subsequent
conduct in consenting to the postponement of the matter after
she
claimed that the matter was settled, and taking further steps in the
proceedings, all constituted representations that she
intended to
continue with the litigation.As a consequence of this conduct the
respondent was estopped, alternatively had waived
her rights to raise
the settlement in the proceedings. In my view, there is no ambiguity
in what was being conveyed in writing
by the appellant to the
respondent and vice versa.
[20
]
The respondent clearly viewed the matter as at an end and settled
when she received the first letter. Her response clearly conveyed
this. What occurred was that a proper offer was made and accepted
resulting in an agreement of settlement of the action between
the
appellant and the respondent.
[21
]
In all the subsequent correspondence and the pleadings filed on her
behalf, the Respondent conveyed that the matter had been settled
and
her right to contend that the action had been settled was
reserved.
7
In
fact the respondent’s attorneys contended in their subsequent
correspondence with the appellants attorney that
“our
client accepted your proposal”..
and
that they
“accordingly contend that the matter is at an end”.
8
The respondent’s attorney furthermore warned the appellant
that should the appellant
“wish
to take the matter any further our client will raise the plea that
the matter has become settled”.
9
[22
]
Clearly from the aforegoing, her subsequent conduct indicated that
she intended pursuing litigation with the firm belief that
the matter
had become settled , and would plead this, electing to rely on the
settlement agreement. At the first opportunity the
respondent raised
her special plea and in no manner led the appellant to believe she
had waived or abandoned this defence which
always featured as a
special plea in bar.
[23
]
In view of all the aforegoing, the court a quo did not err in
upholding the special plea. Accordingly the appeal falls to be
dismissed.
[24
]
In the result, I propose the following order:
The appeal is dismissed with costs.
_______________________
H K SALDULKER
JUDGE OF THE HIGH COURT
I AGREE:
_______________________
L GOLDBLATT
JUDGE OF THE HIGH COURT
I AGREE:
________________________
C NICHOLLS
ACTING JUDGE OF THE
HIGH COURT
For the Appellant
: Advocate R Sutherland SC
Advocate D Vetten
Instructed by
: Darryl Furman & Associates
For the defendant
: Advocate PM Beltramo
Instructed by
: Bowman Gilfillan
Incorporated
1
Record, p 18-19
2
Record, p 20
3
Record, p41
4
Record, p42;44;46;49
5
Record, p11
6
Record,p30-34; Judgment, Record- 80-81
7
Record, p 39;42;44;49
8
Record, p42
9
Record, p44