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[2009] ZAKZPHC 12
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Wassenaar v Alupicket CC and Another (AR 498/08) [2009] ZAKZPHC 12 (31 March 2009)
IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
PIETERMARITZBURG
APPEAL
NO. AR 498/08
In
the matter between:
R.
WASSENAAR
APPELLANT
and
ALUPICKET
CC
FIRST RESPONDENT
F.A.
SHARMAN CC
SECOND RESPONDENT
APPEAL
JUDGMENT
Delivered
on 31 March 2009
SWAIN
J
[1]
The appellant raised two defences in the Court
a
quo
to resist a claim for
payment of the sum of R10,130.00 by the second respondent, for the
supply and installation of aluminium lattices,
at the home of the
appellant, namely :
a)
The lattices did not conform to the agreement concluded between the
appellant and the second respondent
and
b)
the lattices were not properly secured and installed.
[2]
The Magistrate upheld the claim of the respondents, granted judgment
in their favour for the amount
claimed, resulting in the present
appeal.
[3]
It was common cause that the installation was not properly done.
The case of the second respondent
was that it had tendered to rectify
the defective installation, which tender was rejected by the
appellant. A great deal
of evidence was directed in the Court
a
quo
to establishing
whether, and if so what, had been tendered by the respondents to
rectify the defective installation, and whether
the appellant was
justified in rejecting such tender.
[4]
In the light of the conclusion I have reached however, on the primary
issue raised, namely what the terms of the contract between
the
parties were and the performance by the second respondent of such
terms, I do not intend entering this debate. This is
so because
the remedial work proposed by the second respondent, to bring the
lattices into conformity with what the appellant alleges
was agreed
as to their shape and size, was to be done at an extra cost to the
appellant of R2,360.00. In other words, if
the lattices
supplied did not conform to the agreement in these respects, a tender
by the second respondent to render them so,
at an additional cost to
the appellant, would constitute a repudiation entitling the appellant
to cancel the agreement. In
such an event, the second
respondent would not have been entitled to payment and judgment ought
to have been entered in favour
of appellant, in the Court
a quo
.
[5]
The dispute between the parties was whether terms of the agreement
were that the lattices:
a)
should
extend from the floor to the ceiling of the verandah situated at the
appellant’s home and
b)
should
be constructed with cut away concave corners in conformity with the
so-called
“
Mount
Edgecombe style”.
[6]
The second respondent who sought to enforce the agreement against the
appellant, bore the onus of proving
the terms of the agreement it
sought to enforce
McWilliams
v First Consolidated Holdings (Pty) Ltd.1982 (2) SA 1 (A)
which
may involve proving a negative, namely, that the parties did not
agree on the additional terms alleged by the appellant.
Kriegler
v Minitzer
1949 (4) SA 821
(A)
[7]
Mr. Shepstone, who appeared for the respondents on appeal, submitted
that the contract concluded between
the parties, was evidenced by the
quotation dated 05 May 2005. This constituted the offer made by
the second respondent,
which was accepted by the appellant.
[8]
He submitted that the appellant in pleading that the disputed terms
formed part of the agreement, sought
to deny that the quotation
formed the contract. The argument then proceeded that these
terms which the appellant sought to
be incorporated into the
contract, were irreconcilable with the specifications contained
therein and consequently, could not form
part of the contract.
The appellant had accepted the quotation and was bound by its
contents, on the basis of the doctrine
of
quasi-mutual
assent.
[9]
In the case of
Goldblatt
v Freemantle
1920 AD 123
at 128 – 129
the
Appellate Division adopted the principle that the burden of proof is
on the party who asserts that an informal contract was
not intended
to be binding until reduced to writing, in the following words
“
Subject
to certain exceptions, mostly statutory, any contract may be verbally
entered into; writing is not essential to contractual
validity.
And if during negotiations mention is made of a written document, the
Court will assume that the object was
merely to afford facility of
proof of the verbal agreement, unless it is clear that the parties
intended that the writing should
embody the contract.”
[10]
On the evidence it is clear that the type of screens to be installed,
their location at the appellant
’
s
house, and their purpose, were discussed between the appellant and
Mr. Garrard of the second respondent, on at least two occasions.
After the first discussions, the second respondent submitted the
quotation dated 12 April 2005, which set out the measurements
of the
lattices to be supplied, their cost, as well as the delivery time.
After a further visit to the site, to cater for
a change the
appellant required in the location of the lattices on the verandah, a
second quote dated 05 May 2005, was submitted
to the appellant.
In this quote the dimensions of the lattices and their costs were
varied.
[11]
In neither quote is any mention made of the precise location of the
lattices to be installed, save that in the
second quote the following
is stated:
“
Further
to our meeting regarding amending your requirements to protection one
corner of the stoep”.
[12]
It is self evident that it was not the parties’ intention that
the second quotation should embody the whole
of their contract.
The object of submitting a quote was simply to reach agreement as to
the price. The purpose for
which the lattices were to be
installed, their precise location and their appearance had previously
been negotiated between the
appellant and Mr. Garrard. The
agreement quite clearly consisted of the oral terms, being the
antecedent discussions, together
with the written terms, being the
written quotation. The specifications contained in the
quotation simply constituted a translation
into physical dimensions
of the requirements of the appellant, which had been discussed and
agreed upon. Whether the physical
dimensions accurately
reflected what was agreed upon, depends upon a determination of
whether the terms contended for by the appellant,
as referred to in
paragraph 5
supra
, formed part of the agreement, or not.
[13]
I therefore do not agree with Mr. Shepstone’s submission that
the quotation dated 05 May 2005 constituted
the exclusive memorial of
the parties’ agreement, or that the second respondent
discharged the onus resting upon it to show
that the prior oral
agreement was not intended to be binding upon the parties.
[14]
Turning to the issue of whether the second respondent discharged the
onus of proving that the terms contended for
by the appellant, did
not form part of the agreement.
[15]
Mr. Garrard conceded that the lattices were to perform the dual
function of screening the verandha of the appellant
visually, as well
as from the effects of the wind. When asked whether he honestly
thought that the lattices provided would
provide protection in both
respects he replied
“
certainly
visually”. When asked
“
but
not from the wind?”
he
replied as follows:
“
No,
you asked for clarity and I am giving it you, certainly visual.
In terms of the balance, because of those, as I recall
there was some
intention to put pots or such like underneath, yes, with hindsight it
should have been lower”.
[16]
Garrard stated that he had no recollection of any specific discussion
of the height requirements of the appellant
and stated that
“
My
understanding was that there would be a small gap at the top and it
would run down to approximately the slope of where it joins
the
timber, because both of those are approximates.”
[17]
A conspectus of the evidence of Garrard indicates that:
a)
His understanding was that
there was to be a small gap between the top of the lattice and the
ceiling.
b)
The bottom of the lattice was
to reach to where the timber pillars ended on top of the brick
pedestals.
c)
The bottom of the lattices
supplied should have been lower and did not effectively provide
protection against the wind, which was
one of the two objectives to
be achieved by installing the lattices.
[18]
It is quite obvious that in order to effectively achieve the agreed
practical objective of acting as windbreak,
the lattice should
stretch from the ceiling to the floor. It should not be
necessary to screen the gap at the bottom with
pot plants to achieve
the desired objective. If Garrard believed that a narrow gap
was needed at the top of the lattice to
screen the wind, why was a
much larger gap acceptable at the bottom of the lattice, which would
effectively negate the need for
the narrow gap at the top?
[19] The
evidence of the appellant was however that he requested a lattice
from the ceiling to the floor. This
would obviously be the most
effective way of screening out the wind.
[20]
When the evidence of Garrard as set out above, is considered, I am
satisfied that it does not discharge the onus
of proving on a balance
of probabilities that it was not a term of the agreement, that the
lattices would extend from the floor
to the ceiling. In
reaching this conclusion I do not overlook the inherent improbability
of the second respondent manufacturing
a lattice, which did not
extend from the ceiling to the floor, if this was specified by the
appellant. Weighed against this
improbability however is the
equally inherent improbability of the appellant ordering a lattice of
lesser dimension than this,
which would not achieve the object he
desired of effectively screening out the wind.
[21]
This finding renders it unnecessary to consider the further issue of
whether it was a term of the agreement that
the lattices would be
constructed with cut away concave corners in conformity with the so
called
“
Mount Edgecombe
style”. This is so because the appellant was entitled to
reject the performance tendered by the second
respondent of the
supply of lattices which did not extend from the ceiling to the
floor, even if it was not a term of the agreement
that they would be
constructed with cut away concave corners. I will do so
however, for the sake of completeness.
[22]
The following evidence is relevant to an assessment of the inherent
probabilities of this dispute. On the
one hand, Garrard says
that if this requirement was specified he would have walked away from
the job, because it is impossible
to manufacture aluminium lattices
with such a feature. In this view he is supported by Steyn of
the first respondent, who
manufactures the lattices. On the
other hand, appellant says that he showed Garrard the lattice work on
houses nearby
“
in the
valley”
and
that he specifically told Garrard that he wanted cornices cut out of
the trellisses in accordance with the
“
theme
of the
whole of Mount
Edgecombe”.
In
response, Garrard said that he would go back to Steyn and discuss it
with him.
[23]
When regard is had to the evidence that Garrard was in need of work
at the time and Steyn allowed him
“
to
pick up”
on the
appellant’s enquiry, that when problems arose with the
installation Garrard asked Steyn to assist by visiting the appellant
because
“
there were
elements involved in the discussion that required a sense of
understanding of the product greater than my own”
and this job
was the first aluminium lattice he had ever installed, (although he
had seen them in the shop and had some understanding
of the
manufacturing process), and maintained he had discussed this specific
detail problem of concave mouldings on the corners
of the lattice
with Steyn before he did this job, I do not regard the appellant’s
version as inherently improbable.
This is because it would be a
natural reaction on the part of Garrard when faced with such a
request to say he would check with
Steyn, to see whether it was at
all possible rather than simply walk away from the job. It is
clear that Garrard needed the
work, because he had been retrenched
from the engineering field and was looking to create a profession for
himself and was offered
this sub-contract work.
[24]
At the very least I cannot find that the version of Garrard on this
issue is more probable than not and thereby
reject the version of the
appellant, particularly as appellant wanted the lattices to conform
to the objective standard of the
“
Mount
Edgecombe theme”.
[25]
The second respondent has accordingly failed to discharge the onus of
proving that it was not a term of the contract
that the lattices
should be constructed with cut away concave corners, in conformity
with the
“
Mount Edgecombe
style”.
[26]
It is apparent that the Magistrate approached these issues simply on
the basis that it was improbable that the
second respondent would
construct the lattices in a manner which ignored the appellant’s
requirements, without considering
the other evidence, set out above,
which was relevant to an assessment of the probabilities and without
apparently appreciating
that the second respondent bore the onus of
showing that the terms contended for by the appellant, did not form
part of the agreement.
[27]
The Magistrate appears to have placed a great deal of emphasis on the
demeanour of the witnesses when testifying,
in coming to the
conclusion that she did. She found that the manner of the
representatives of the respondents
“
impressed
the Court positively” whereas the appellant
“
was
much too
belligerent and
unyielding in his account. His demeanour on the whole did not
evoke any confidence that his version was a
true account of events
prior to his acceptance of the quotation”.
[28]
It is however trite law that demeanour
“
that
vague and indefinable factor in estimating a witness’s
credibility”
R
v Lekaota
1947 (4) SA 258
(O) at 263
can be most
misleading.
S
v Kelly
1980 (3) SA 301
(A) 308 B - G
The
correct approach is that demeanour should be allowed only to
reinforce a conclusion reached by an objective assessment of the
probabilities, or possibly to turn the scale when the probabilities
are evenly balanced.
Zeffert
et al – The South African Law of Evidence page 141
[29]
As pointed out above, the Magistrate failed to properly examine all
of the evidence relevant to an assessment of
the probabilities and
placed undue weight upon her assessment of the demeanour of the
witnesses. I find it difficult to understand
why an assessment
of the evidence of the appellant as
“
much
too belligerent and unyielding in his account” should affect an
assessment of his credibility. Surely, this could
equally be
interpreted as an indicator of a firm belief in his version. In
making this remark I am acutely aware of the advantages
the trial
Court possessed in assessing the demeanour of the witnesses, but as
stated by the Constitutional Court in the case of
President
of the Republic of South Africa vs South African Rugby Football Union
2000 (1) SA 1
(CC) at paragraph 78
an
over emphasis on the advantages of the trial court, can make an
appellant’s right of appeal “illusory” and
the
truthfulness or untruthfulness of a witness can rarely be determined
by demeanour alone, without regard to other factors, including,
especially the probabilities.
[30]
The Magistrate also rejected the contention of the appellant that he
had contracted with the second respondent
alone, on the basis that
there was sufficient evidence that the second respondent was
representing both respondents in the discussions
that were held, as
well as the quotations. The evidence however was clear that the
first respondent was the manufacturer
of the lattices and had no
contractual
nexus
with
the appellant. In addition, the quotes simply reflect the
second respondent as being
“
in
association with”
the
first respondent, which does not constitute the second respondent as
a contracting party. Mr. Shepstone fairly conceded
on appeal
that the first respondent should not have been a party to the action,
nor the appeal.
[31]
As regards costs, Counsel representing the appellant in the Court
a
quo
asked for an order that
costs be awarded according to a reasonable fee on brief in respect of
Counsels’ fees and although
the appellant did not call the
expert, Mr. Ellis, the appellant should be awarded the preparation
costs of this expert. I
regard both of these submissions as
reasonable and I will accede to them on appeal.
[32]
The appeal record was not properly prepared, with the result that
there was a great deal of confusion where reference
was made to
exhibits in the record. This was the responsibility of the
appellant, and my displeasure will find expression
in the costs order
I make in this regard.
In
the result the order I make is the following:
A.
The
appeal succeeds and the first and second respondents are ordered to
pay the appellant’s costs of the appeal jointly and
severally,
save that the costs of preparing the record are not to form part of
the costs of the appeal.
B.
The judgment of the Magistrate is
altered to read as follows:
Judgment is granted in
favour of the defendant and the first and second plaintiffs are
ordered to pay the defendant’s costs,
jointly and severally,
such costs to include the reasonable costs of employing Counsel on
brief, as well as the preparation costs
of the expert, Mr. Ellis.
__________________
I agree
_______________
SWAIN
J.
MOTALA A J
Appearances: /
Appearances:
For
the Appellant
:
Adv. A. Stokes, S.C.
Instructed
by
: Knight Turner
c/o
Tatham Wilkes Pietermaritzburg
For the
Respondent
: Adv.
S.M. Shepstone
Instructed
by
: Macrae Bath & Batchelor
C/o Austen Smith
Attorneys Pietermaritzburg
Date
of Hearing of Appeal : 13
March 2009
Date
of Filing of Judgment :
31 March 2009