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[2009] ZAGPJHC 118
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Vip Industrial Cleaning CC v Furniture City (07/25471) [2009] ZAGPJHC 118 (9 November 2009)
SOUTH GAUTENG HIGH COURT,
JOHANNESBURG
Case No. 07/25471
Date:09/11/2009
In the matter between:
VIP INDUSTRIAL CLEANING CC
Plaintiff
and
FURNITURE CITY Defendant
MEYER, J.
[1] The plaintiff claims damages from
the defendant resulting from an alleged breach of a written agreement
that was concluded between
the parties on 10 September 1996 and in
terms whereof the plaintiff was engaged to supply cleaning services
at the defendant’s
various Furniture City stores (‘the
agreement’). The defendant notified the plaintiff of the
termination of the agreement
with effect from 10 September 2006. The
plaintiff considers the notification to be premature in respect of
certain stores and
accordingly, insofar as those stores are
concerned, a breach of the agreement. The defendant considers that
its termination accords
with the provisions of the written agreement.
[2] The agreement that the parties
concluded on 10 September 1996 is not in issue. It reads as follows:
‘
MEMORANDUM
OF AGREEMENT
ENTERED
BY AND BETWEEN’
the plaintiff (the supplier) and the
defendant (the client)
‘
For
the cleaning services on a five yearly contractual basis on the
premises at Furniture City Stores as laid down in Annexure A
to C
which forms an integral part of this Agreement.
It
is therefore agreed as follows:
The
supplier undertakes to supply the cleaning services as laid down in
Annexure A to C, in all the stores existing and future.
The
contract will remain in force for five Years and will renew itself
for a further five years if it is not cancelled in writing
three
months in advance. The contract will escalate with not less than
inflation Yearly. The Client hereby accepts the mentioned
services
and costs laid down in Annexure C.’
Annexure A stipulates the nature of
the cleaning services to be provided and the working hours. Annexure
B stipulates the cleaning
materials and labour to be provided and the
consumables and areas that are excluded. Annexure C stipulates the
contract price,
which is R1 500.00 per cleaner per month.
[3] Sub-paragraph 5.2 of the
plaintiff’s particulars of claim, which is denied in paragraph
6 of the defendant’s plea,
reads:
‘
5. The relevant material
express,
alternatively
,
tacit,
further
alternatively
, implied
terms of the agreement were:
5.2 the agreement would endure,
in
respect of each individual store from the date of opening thereof
,
for an initial period of 5 years and would automatically be renewed
for a further 5 years in the event of the agreement not being
cancelled in writing three months prior to the expiration of the
first 5 year period;’ (
emphasis
added)
[4] Adv. EJ Ferreira, who appeared for
the plaintiff, submitted in the first instance that the ordinary
meaning of the contractual
term relating to the duration of the
agreement is the one ascribed to it in paragraph 5.2 of the
plaintiff’s particulars
of claim. I refer to the term in issue
as ‘the duration term’. The plaintiff’s
alternative contention is that
the language of the document is on the
face of it ambiguous and the contractual term in issue should be
interpreted in accordance
with the plaintiff’s contention with
reference to the content of the document and to the extrinsic
evidence of the plaintiff’s
sole member, Mr. Human. The
plaintiff’s further alternative contention is that the term
contended for by it should be implied
as a tacit term.
[5] Adv. JJC Swanepoel, who appeared
for the defendant, took issue with each one of the plaintiff’s
contentions. It is common
cause that a Mr. Smith represented the
defendant in the conclusion of the agreement and that he now resides
overseas. The defendant
closed its case without calling any witness.
[6] The parol evidence rule applies in
this instance. The plaintiff does not seek rectification of the
written agreement. It is
trite that ‘interpretation is a
matter of law and not of fact and, accordingly, interpretation is a
matter for the court
and not for witnesses’. Per: Harms DP
in
KPMG v Securefin Ltd
2009
(4) SA 399
(SCA), at p 409G - H. The evidence of the plaintiff’s
sole member, Mr. Human, on what the agreement and particularly the
relevant term means are irrelevant. The approach to interpretation
was summarised by Joubert JA in
Coopers
& Lybrand v Bryant
[1995] ZASCA 64
;
1995
(3) SA 761
(A) at pp 767E – 768E.
[7] The ordinary grammatical meaning
of the words used – ‘[t]he contract will remain in force
for five years and will
renew itself for a further five years if it
is not cancelled in writing three months in advance’ - is that
the agreement
remains ‘operative, binding, valid’ (See:
The New Shorter Oxford
English Dictionary
1993,
Vol. 1, at p.998 on the meaning of ‘’in force’) for
a period of five years, and, if it is not cancelled
in writing three
months before the expiration of this period, for a further period of
five years. The ordinary grammatical meaning
of the words used is as
simple as that.
[8] The agreement contains a
pre-amble. The operative terms follow. The annexures to the
agreement are incorporated into the operative
terms. The first
sentence of the operative terms imposes obligations on the plaintiff.
It is obliged to supply the cleaning services
and cleaning materials
as described in the annexures to the agreement at all the defendant’s
stores that existed at the time
of the conclusion of the agreement as
well as at those that open after the date of the agreement. The
second sentence of the operative
terms, which is the duration term,
deals with the duration of the agreement or period in which it will
be operative, binding, and
valid. The last two sentences of the
operative terms impose an obligation on the defendant to remunerate
the plaintiff for its
cleaning services.
[9] ‘The contract’
referred to in the duration term is the written agreement that was
concluded between the parties
on 10 September 1996. ‘The
contract’ obliges the plaintiff to render cleaning services in
respect of all the defendant’s
stores – the existing ones
and the future ones; it obliges the defendant to remunerate the
plaintiff for such cleaning services;
and the contract provides that
it remains valid for a fixed term of five or of ten years. The
duration of the agreement is expressed
without distinguishing between
existing and future stores or the dates of opening of individual
stores. The annual escalation
of the contract price is also not
linked to individual stores.
[10] I am also unable to agree with
the submission on behalf of the defendant that the words used in the
operative part of the agreement
and those used in the pre-amble –
‘[f]or the cleaning services on a five yearly contractual basis
on the premises at
Furniture City Stores’ - are in conflict.
The services to be rendered and the contractual period are fixed.
The only variable
is the stores at which the services are to be
rendered. The preamble does not detract from the ordinary
grammatical meaning of
the words used in the operative part of the
agreement. It should also be mentioned that a preamble is ‘generally
regarded
as subordinate to the operative portion of a contract which,
if clear, carries more weight than anything in the preamble.’
See:
Bekker NO v Total
South Africa (Pty) Ltd
1990
(3) SA 159
(TPD), at p 171 H – I. The grammatical and ordinary
meaning of the words used in the duration term is, in my view,
consistent
with the rest of the written agreement.
[11] There is also nothing strange or
unusual about the terms when one considers the agreement in its
context. Its purpose is evident.
The defendant required cleaning
services for its various stores and the plaintiff agreed to provide
them at an amount that was
determined with reference to the number of
cleaners used per store and the number of cleaners, in turn, was
determined by the size
of each store. The contract was a sizeable
one for the plaintiff. It eventually applied to about forty stores
of the defendant.
To some stores the contract applied from the
outset and to others from dates after its conclusion.
[12] There is, in my view, accordingly
no scope for the interpretation contended for by the plaintiff on the
ordinary grammatical
meaning of the words used in their extended
context. The language of the agreement is not on the face of it
ambiguous and it is
accordingly unnecessary for me to further deal
with the evidence of Mr. Human relating to the negotiations between
the parties,
their conduct subsequent to the conclusion of the
written agreement, the exchange of correspondence between them, or
other extrinsic
evidence relating to the surrounding circumstances.
[13] The plaintiff in the alternative
seeks the words that I have italicised in paragraph 3
supra
to be imported into the
agreement as a tacit term. Regard being had to the express words of
the agreement, there is, in my view,
no room for importing such a
tacit term. The question is dealt with unambiguously in the
agreement. Such a tacit term would
be in conflict with the express
duration term. ‘A tacit term cannot be imported into a
contract in respect of any matter
to which the parties have applied
their minds and for which they have made express provision in the
contract.’ See:
Robin
v Guarantee Life Assurance Co Ltd
[1984] ZASCA 72
;
1984 (4) SA 558
(A)
,
at p 567A - F.
[14] In view of the conclusions at
which I have arrived in regard to the construction of the agreement
and in regard to the importing
of a tacit term into the agreement, it
is not necessary to deal with the issue of damages.
[15] In the result the plaintiff’s
claim is dismissed with costs.
P.A.
MEYER
JUDGE
OF THE HIGH COURT
9 November 2009
8