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[2008] ZAFSHC 82
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NVM Beliggings & Versekerings v ACT Computers (A301/2007) [2008] ZAFSHC 82 (14 August 2008)
IN THE HIGH COURT
OF SOUTH AFRICA
(ORANGE FREE STATE
PROVINCIAL DIVISION)
Appeal No.: A301/2007
In the appeal between:
NVM BELEGGINGS &
VERSEKERINGS
Appellant
and
ACT
COMPUTERS
Respondent
_____________________________________________________
CORAM:
BECKLEY, J
et
RAMPAI, J
_____________________________________________________
JUDGEMENT:
RAMPAI, J
_____________________________________________________
HEARD ON:
28 JULY 2008
_____________________________________________________
DELIVERED ON:
14 AUGUST 2008
_____________________________________________________
[1] This appeal
originated from the Kroonstad District Magistrate Court. The
appellant as the plaintiff sued the respondent as
the defendant. The
claim of the appellant was based on two causes of action.
[2] As regards the first
claim the appellant alleged in the particulars of claim that the
parties concluded an agreement during
August 2003. The respondent
supplied and installed certain equipment at the request of the
appellant. Among others, the equipment
consisted of an antenna,
called WiFi, and connective cables which linked the antenna to the
appellant’s computers. The WiFi
system replaced the
appellant’s existing internet access system. The WiFi
connection was supposed to give the appellant
access to internet
round the clock. The appellant paid to the respondent an amount of
R3 687,90 for the provision and installation
of the antenna.
[3] The appellant further
alleged that notwithstanding the WiFi, it never had reliable internet
access because the said equipment
was either improperly installed or
assembled. The malfunctioning of the equipment led to a dispute
between the parties. Because
of such dispute, the respondent
unilaterally removed the antenna from the appellant’s business
premises.
[4] On account of the
respondent’s breach, the appellant repudiated the agreement and
demanded the refund of the amount of
R3 689,90 and other ancillary
relief. This completes the appellant’s pleading in respect of
the first claim.
[5] In its plea the
respondent admitted the agreement but denied that the costs of
supplying and installing the equipment amounted
to R3 687,90.
Respondent specifically averred that the equipment supplied and
installed remained the property of the respondent.
The respondent
admitted that it removed the antenna and took it back but averred
that it was entitled to cancel the agreement
and to take the
equipment back seeing that the appellant had failed to make payments
in terms of the agreement. The respondent
denied the appellant’s
allegation to the effect that the equipment did not properly
function. It was the respondent’s
case that it cancelled the
agreement on account of the appellant’s breach. Therefore the
respondent pleaded that the appellant
was not entitled to a refund of
any amount. Accordingly the respondent prayed that the appellant’s
first claim be dismissed
with costs. This completes the respondent’s
pleading in respect of the first claim.
[6] As regards the second
claim the appellant alleged that during August 2003 the respondent
wrongfully removed certain computer
programmes and equipment from the
premises of the appellant.
[7] As a result of the
respondent’s actions, the appellant alleged that it suffered
damages in the amount of R8 725,00 which
represented a reasonable and
equitable costs of replacing the computer discs and programmes.
Before the proceedings were instituted
the appellant received an
amount of R4 350,00 from its comprehensive insurers. In the
circumstances the appellant demanded payment
of the balance of R4
375,00 plus ancillary relief from the respondent.
[8] In its plea the
respondent denied all the allegations relating to the appellant’s
second claim as if each allegation had
been specifically traversed.
This in brief completes a summary of the pleadings. I now proceed to
summarise the evidence.
[9] The matter served
before Mr. I Redelinghuys, District Court Magistrate on the 24
th
March 2006. On behalf of the appellant appeared Mr. Grimbeek and on
behalf of the respondent Mr. R C van Rooyen.
[10] The version of the
appellant was narrated by Christoffel Petrus Booysen. He testified
that the WiFi equipment was in actual
fact an antenna which had been
mounted against the wall in the appellant’s building. After
the respondent had installed
the antenna it also installed certain
programmes on the appellant’s computers. The appellant was
obliged to pay a certain
monthly fee to the respondent in respect of
the computer programmes. These programmes together with the antenna
were supposed
to give the appellant access to the internet. However,
the equipment did not function properly. On several occasions the
computers
and programmes were removed from the appellant’s
premises to the respondent’s premises for repairs.
[11] For months the
appellant could not access any internet services. The appellant
withheld payment of the monthly fee because
there was simply no
internet access available. Notwithstanding its failure to provide
internet services the respondent continued
to debit the appellant’s
account with the monthly fee. With the passage of time, the
continued debiting of the appellant’s
account by the respondent
and the continued withholding of the payment by the appellant led to
a dispute. The dispute was about
payment of the monthly fee relating
to the computer programmes and not payment relating to the purchase
price of the WiFi. The
appellant queried a number of debits on its
account. Such queries were by agreement reduced to writing as set
out in annexure
“C”.
[12] Booysen testified
further that the WiFi installation meant that an antenna was mounted
against the wall of the appellant’s
building and that he
purchased such an antenna from the defendant for R3 687,90. The
internet access fee was R570,00 per month.
The appellant had to pay
this fee for the use of the internet services which the appellant was
supposed to receive regularly from
the respondent. He confirmed that
there were no problems relating to the antenna and that the
installation of the software in
the computers created all sort of
problems. In addition to the payment of the purchase price in
respect of the antenna the appellant
also paid the monthly fee for
the first month in respect of the internet access services rendered
from November 2003 to March 2004
both inclusive.
[13] The respondent
frequently removed appellant’s computers in an attempt to
properly install the programmes in the computers.
The dispute which
arose concerned the accounts which the respondent delivered to the
appellant in respect of the internet access
services which services
the respondent had failed to make available to the appellant. He
also testified that the parties discussed
the problem, resolved it
and agreed as to what the correct account for the internet access
services should be. Such an agreement
was reached on the 19
th
of March 2004 and reduced to writing.
[14] Still on the 19
th
March 2004 the appellant sent an e-mail to the respondent in which
the terms of the agreement were spelled out. After doing so
Booysen
went home for lunch. After lunch he returned to his office and
discovered that all the appellant’s computers were
dead and the
screens blank. Booysen heard from his secretary what happened to the
computers and why. After the discussion with
his secretary Booysen
went outside and inspected the building. He discovered that the
antenna, which had been mounted against
the wall, had physically been
ripped off and removed. He immediately telephoned Harry Knepscheld,
a representative of the respondent.
In a rather rude and hostile
manner Knepscheld informed him that the equipment had been removed
because the appellant did not
pay for the services rendered.
[15] Booysen told his
secretary that, contrary to what she was told, he did not send any
request to the respondent to remove anything.
He realised that the
respondent had made false and fraudulent representations to his
secretary in order to remove the programmes
from the computers, to
wipe off such programmes and also to remove the antenna from the wall
in the absence of Booysen. From his
workplace Booysen went to his
place of residence. There he discovered that the computer discs had
been removed and the programmes
wiped off from the computer. From
his domestic worker he heard a similar story as the one he had heard
from his secretary. Everything
had been removed by false pretences.
His impression was that the respondent removed the equipment from the
appellant’s office
and from Booysen’s home because he was
probably unaware that the appellant had paid the amount as agreed on
the 19
th
March 2003.
[16] During
cross-examination it was put to Booysen that the appellant did not
purchase the antenna that the appellant only paid
for the
installation of the equipment and the connection of the internet
access services. Booysen denied the suggestions. He
answered that
the unit referred to was the antenna and that he had purchased it
from the respondent. He added that subsequent
to the removal of the
antenna by the respondent, the appellant purchased a similar antenna
from another supplier for precisely
the same amount. Booysen
repeatedly stated that he gave no one the right to remove the goods
for which he had paid or to suspend
the internet access services for
which he had also paid.
[17] He denied that he
ever received any email which Spidey, on behalf of the respondent,
had sent to the appellant on the 19
th
March 2004. He doubted whether the alleged email was ever sent since
it did not have any details of its source and destination.
Booysen
denied the suggestion that the email which the appellant sent to the
respondent on the 19 March 2003 could, by any stretch
of the
imagination, be regarded as an invitation which authorised the
removal of the discs from the computers and the antenna from
the
wall. Booysen confirmed in conclusion that he, on behalf of the
appellant, bought a replacement antenna from Johan Geldenhuys
who
carried on business under the name E3. He repeated that he paid the
same price for the replacement antenna as he had paid
for the
original antenna supplied by the respondent. In both instances he
became the owner of the antenna.
[18] The version of the
respondent was narrated by two witnesses, of whom Hermanus Johannes
Knepscheld was the first. He confirmed
that he was also known as
Spidey. He testified that the “
mounting
and the unit installation”
was indeed an antenna as described by Booysen. Such an antenna was
physically attached to the roof of the building at the request
of the
appellant. He testified that when the services were described as
“
mounting
an unit installation”
such
services represented items which the respondent was entitled to
remove. The respondent remained the owner of the antenna.
The
appellant paid only for the services and not for the antenna. He
referred to clause 8 of the quotation, “exhibit a”,
and
said that the WiFi 100 MB equipment in that clause referred to a
radio antenna which the respondent had provided to the appellant.
It
was the hardware component of the system which provided internet
link. The hardware was never sold to the appellant.
[19] Contrary to the
testimony of the appellant’s witness he testified that the
software data stored on the computers of the
appellant was not erased
but merely rolled back and that it was still stored on the computers.
The respondent’s agents never
removed the data from the
appellant’s computers, he said. He confirmed that the
so-called
“mounting
and unit installation”
was in reality the physical equipment, namely the equipment which was
installed at the roof of the customer’s building.
The cost of
the antenna, the box and the cables that linked the antenna to the
computers was R7 000,00.
[20] During
cross-examination Knepscheld denied that the respondent removed the
antenna under false pretext. He could not explain
why another
supplier who sold and supplied the appellant with an antenna as the
respondent had done did not remove such an antenna
when the contract
expired. He supposed that E3, the respondent’s competitor, did
not remove the antenna as the respondent
had done because the way it
did business was different from the way the respondent did. He
conceded that if they acted as the
appellant said they did, then they
acted in a completely wrong manner.
[21] It was suggested to
him that the respondent could not have sent an email to the appellant
on account of the private cassettes
that were removed from the
computers early that morning. He admitted that there was no proof
that the email was indeed sent to
the appellant and received. He
confirmed that he was present on the premises of the appellant when
the things were removed. He
was assisted by two technicians to
remove the equipment. Although they removed the antenna and the box
they did not remove the
connective cables.
[22] He volunteered to
say that he told Booysen at the time they made the oral agreement
that Booysen should remember that the equipment
belonged to the
respondent. He added that Booysen even acknowledged that the
equipment did not belong to him. Although it was
earlier suggested
to the appellant’s witness that the respondent was invited to
go and remove the equipments from the appellant’s
premises,
Knepscheld admitted that he and his companions went to the
appellant’s business premises on their own, took the
law into
their own hands and removed things. He also admitted that they did
not do so in terms of the contract. They did so on
their own, but
again he repeated that he told Booysen that the equipments did not
become the property of the appellant, the contract
notwithstanding.
He answered that the timing of the removals both at Booysen’s
office and home was unfortunate. But he
immediately changed the tune
and denied that he and his companions were ever at the home of
Booysen.
[23] Johan Geldenhuys
also testified as the respondent’s second witness. He
testified that he was an internet service provider
in 2004. The
appellant was one of his customers. As time went on he received a
number of complaints from the appellant. Booysen,
on behalf of the
appellant, often complained about the services which Geldenhuys’s
company was rendering. Sometimes the
appellant’s complaints
related to his account. Business relationship between him and
Booysen broke down. He paid an amount
of R1 000,00 to the appellant
in order to avoid a legal action which the appellant was threatening
to take against his business
enterprise.
[24] During
cross-examination Geldenhuys conceded that some of the complaints of
the appellant were valid. The complaints related
to the computer
software. Usually his business enterprise rented out radio antennas
but, in this instance, they sold the antennas
to the appellant. On
behalf of the appellant, Booysen purchased the antennas and the
appellant became the owner thereof because
his business enterprise,
E3, no longer required such antennas. The appellant bought two
antennas from E3 and paid R4 000,00 for
each. By paying for the
antennas the antennas became the property of the appellant. The
appellant’s complaint was that
the internet with a new WiFi
system off-loaded data slower than it did while it was using the old
system he had replaced with the
new system.
[25] He answered that
like the respondent, his business enterprise was internet service
provider but that when the contract between
his business enterprise
and the appellant terminated the appellant became the owner of the
antennas. His business enterprise had
its own network and did not
share the same reception tower with the respondent. Responding to
the question by the court he stated
that the amount of R4 000,00 was
all inclusive of the cost of supplying the antenna, the cables, the
box as well as the installation.
He told the court that the cost
price of the WiFi antenna varied between R2 500,00 and R3 000,00.
However, the service providers
resold it for more in order to make
profit. This completes the evidence of the defence.
[26] On the 24
th
May 2001 the Magistrate delivered judgment. He granted absolution
from the instance with cost against the appellant in respect
of each
of the two claims. It is against this order that the appellant now
comes on appeal before us. Mr. Claasen, counsel for
the appellant,
conceded that the magistrate was correct in granting absolution in
respect of the second claim of the appellant.
Therefore the
appellant abandoned its appeal in respect of the second claim. The
judgment, therefore, concerns the order of absolution
with costs in
respect of the first claim only.
[27] As regards the
version of the appellant the magistrate found:
“
Verder is dit duidelik dat die
eiser bedoel het, en op daardie wyse kontrakteer het dat hy die
antenna gekoop het – dat hy
eienaar van die toerusting geword
nie.”
It
follows from this passage that the magistrate accepted the
appellant’s version to the effect that he bought the antenna
from the respondent, paid for it and thereby became the owner
thereof.
[28] As regards the
version of the respondent the magistrate found:
“
Die hof is ook van oordeel dat
hy seker nie, hoe laakbaar sy optrede ook mag blyk, as hy die
toerusting verkoop het, dit sou gaan
verwyder nie – hy sou dan
sekerlik net die internet-aansluiting (die diens) gestop het.”
It
is also obvious from this passage that the magistrate accepted the
evidence of the respondent to the effect that the respondent
leased
the antenna to the appellant and that the respondent remained the
owner of the antenna notwithstanding delivery thereof
to the
appellant and that the respondent was therefore entitled to reclaim
such property upon the termination of the lease contract.
[2
9] The
magistrate reasoned the matter as follows:
“
Dit wil dus blyk dat ten
opsigte van die verkoop al dan nie en die gepaardgaande eiendomsreg
ten opsigte van die toerusting daar
nie wils ooreenstemming tussen
die partye (aldus die getuienis op rekord) was nie.
Dit blyk dus dat
nie
‘n
kontrak tot stand gekom het nie – vanweë die gebrek aan
wils ooreenstemming.
Die eis van die eiser teen die
verweerder is egter nie baseer op restitusie as gevolg van ‘n
onderlinge kontrak as gevolg
van gebrek aan wils ooreenstemming nie.
Dit is ‘n eis baseer op
kontrakbreuk (volgens ie besonderhede van vordering) deur die
verweerder en dat toerusting, die eiendom
van die eiser wederregtelik
deur die verweerder verwyder is.
Ten opsigte van die eise van die eiser
teen die verweerder, soos dit ingeklee is, dra die eiser die bewyslas
om te bewys dat die
kontrak tot stand gekom het op die termes en
voorwaardes soos deur die eiser beweer.
In die omstandighede kan die hof op
die getuienis voor hom nie ‘n bevinding maak op hierdie aspek
nie.”
[3
0] The
cardinal finding of the court below was that no valid agreement came
into existence following the negotiations the parties
had at
Kroonstad on about the 25th August 2003. This was so because the
court found on the one hand that the evidence of the appellant
was
credible. It will be recalled that the evidence of the appellant was
that at the time of the negotiations the appellant honestly
believed
that the deal was about the sale of the radio antenna. That the
appellant purchased the antenna from the respondent,
that the
appellant paid the purchased price to the respondent and that the
appellant accordingly became the rightful owner of the
antenna on
delivery thereof.
[31] The
aforegoing was not the only finding the court below made. On the
other hand the finding of the court was that at the time
of the
negotiations the respondent genuinely believed: that the transaction
was about the hiring out of the radio antenna; that
the appellant
rented the antenna from the respondent; that the appellant paid for
the rental and not for the purchase of the antenna
and that the
respondent remained the owner of the antenna despite delivery thereof
to the appellant.
[
32] In
the theory of error an error is regarded as material in the case
where it pertains to a person, viz error
in
persona
,
where it pertains to a thing, viz error in
corpore
or
where it pertains to a transaction, viz error in
negotio
.
In this instance, the mistake in issue is an error in
negotio
because it is a mistake about the legal nature of the transaction
concerned. According to the law of contracts no agreement whatsoever
comes into existence in such circumstances. In a case where each
party acts under the mistaken impression of the other party’s
real intention and one is unaware of the mistake under which the
other is labouring, we have a case of mutual mistake.
DIAMOND
v KERNICK
1974 (3) SA 69
AD.
[33] It
was argued on behalf of the appellant that in view of the finding of
the court below that the parties were not
ad
idem
as to the true nature of the transaction they were concluding, the
court erred in granting an absolution from the instance instead
of
ordering restitution. On behalf of the respondent it was submitted
that the evidence was overwhelming and clear that the appellant
had
not pleaded restitution but rather contractual breach and that it had
failed to establish the alleged breach. That being the
case Mr. De
Wet counsel for the respondent submitted that the court below was
correct in granting absolution from the instance
in respect of the
first claim as well.
[34] It
was incumbent upon the appellant as the plaintiff to prove the
agreement as well as the terms thereof. The finding by the
court
below that there was no agreement between the parties and the order
it gave suggested that seeing that the appellant on whom
the onus
rested, had failed to prove the agreement there could have been no
contractual breach as averred in the particulars of
claim. Indeed
the appellant’s case was not elegantly pleaded. However it
remains the duty of the court to ensure that justice
is done.
[35] Where
the evidence is not in complete harmony with a party’s case as
pleaded, the important duty of the court was articulated
as follows
by Erasmus:
Superior
Court Practice
,
page 129:
“
However,
since pleadings
are made for the court, not the court for pleadings,
it
is the duty of the court to determine what are the real issues
between the parties and
,
provided no possible prejudice can be caused to either party,
to
decide the case on these issues
.
The court must look at the substantial issue between the parties and
not blindly follow the
ipsissima
verba
of the pleadings.”
See
ROBINSON
v RANDFONTEIN ESTATE GOLD MINING CO LTD
1925 AD 173
on 198 and
E
C
CHENIA
& SONS CC v LAMÉ & VAN BLERK
2006 (4) 574 (SCA) at 479f – 580g.
[36] The
real issues which emerged from the evidence was, the appellant claim
that it was the rightful owner of the antenna in dispute
and the
respondent’s converse claim that it was the legitimate owner of
the same thing. These were the substantive and defining
issues
between the parties. In these circumstances the appellant’s
evidence should not have been underplayed because it
did not plead
mutual mistake and flowing from that, pray for restitution.
[
37] The
finding of the court that the respondent did not intend selling the
antenna to the applicant was to a large extent based
on exhibit “C”.
This was the quotation which provided that the goods installed
remained the property of the respondent.
However, at the bottom of
the same quotation the following appeared:
“
These prices
are valid for 7 days only. Goods remain the property of Act
Computers
until
fully paid
.”
The
antenna was the major item of the goods supplied by the respondent to
the appellant.
Whereas
the first part of the quotation tends to support the version of the
respondent the second part as encapsulated in the quotation
strongly
favours the version of the appellant. According to the respondent’s
version no goods ever became the property of
the appellant. This
allegation is in direct conflict with the quotation. The quotation
fortifies the appellant’s averment
that he purchased the goods
paid for them and acquired ownership thereof. The court below did
not comment on the aforesaid aspect
of the quotation.
[38] I
deem it unnecessary to evaluate and to analyse the evidence in order
to determine whether or not the appellant as the plaintiff
had
established the breach of the agreement as averred in its particulars
of claim. The crux of the matter is that the court below
found that
the parties were not
ad
idem
and that they performed under the mutual mistaken believe as to the
true nature of the transaction they were concluding. Where
the one
party reckons he buys whereas the other reckons he leases no
agreement comes into existence.
WEINERLEIN
v GOCH BUILDINGS LTD
1925 AD 292
on 291.
[
39] The
following quotation is apposite:
“
If a
purported acceptance does not correspond with the offer there is no
contract because the parties are not ad idem. When this
non-correspondence of offer and acceptance is plain for all to see
the question of mistake does not arise, but when it is not apparent
at the time the contract is entered into but only becomes apparent
later we are in a field of mutual mistake.”
CHRISTIE:
THE
LAW OF CONTRACT IN SOUTH AFRICA
(5
TH
Edition) p. 322.
[
40] If
we accept, and I think we should, the magistrate’s finding that
there was mutual mistake as to the legal nature of
the transaction
the parties were concluding, then considerations of fairness and
equity demand that there should be mutual restoration
of performances
wherever possible so that the parties are restored to the positions
in which they were immediately prior to the
mutual mistake.
According to our law each party to such an abortive transaction is
entitled to claim back the performance he/she
or it has rendered
provided that such a party also tenders to return the performance
he/she or it has received by virtue of a transaction
that was
adversely affected by mutual mistake. In this case there was nothing
the appellant could tender to return seeing that
the respondent was
keeping both performances, viz the money and the thing.
[41] In
the instant case the appellant has mistakenly paid the money to the
respondent for the antenna which was duly delivered
to the appellant
by the respondent. Subsequently, however, the respondent wrongfully
removed the antenna from the appellant.
This was done under false
pretences. The respondent took the law into its own hands to reclaim
its performance. It is inequitable
that the respondent should be
allowed to retain both performances, namely the appellant’s
money and the respondent’s
own antenna. This is precisely the
effect of the absolution granted in the court below. It is unjust
and inequitable, if there
was no contract as the court below found.
The salient principle of our law of contracts, in the case of mutual
mistake, demands
that both parties should restore the respective
performances they received on the strength of the abortive
transaction.
[42] It
was argued on behalf of the respondent that the amount of R3 689,90
did not exclusively represent the purchase price but
that it
included, among others, the costs of labour. Since there was no
evidence as regards the breakdown of the costs of labour,
the antenna
and the cables the repayment of the global amount of R3 689,90 would
unfairly benefit the appellant at the expense
of the respondent. I
am not persuaded by this argument. The main item on the quotation
was the antenna. The respondent drew
up the quotation and chose not
to specify its various components. In any event, it would appear
that labour and cables were not
important features thereof.
According to Geldenhuys, he sold the same type of antenna to the
appellant for more or less the same
amount the appellant paid to the
respondent. The amount was exclusively a selling price.
[43] It
was also contended on behalf of the respondent that the appellant
still has the respondent’s cables in his possession
and that it
would not be equitable to order the respondent to repay the full
amount to the appellant since such amount included
the costs of the
cables. The fact that there was no evidence as to the exclusive
costs of the cables, it was argued, militated
against the argument
that the respondent be ordered to repay the full amount. This
argument has no substance. The appellant did
not return the antennas
to the respondent but chose to retain the cables. The evidence is
that the respondent went behind the
appellant’s back, removed
the antenna under false pretences in the absence of Booysen but chose
to leave the cables behind.
It is not unreasonable to assume from
Knepscheld’s conduct that the respondent chose to abandon the
cables probably because
such cables were worthless to the respondent.
[44] In
the circumstances I have come to the conclusion that the court below
erred in granting an absolution from the instance in
respect of the
first claim in this matter. The order of absolution was unfair,
unjust and inequitable to the appellant. It was
not in keeping with
the salient principle of our law. As regards the first claim I am
inclined to uphold the appeal. As always
the cost must follow
success.
[45] Accordingly
I make the following order:
45.1 The
appeal succeeds with costs.
4
5.2 The
order of the court below in respect of the second claim is upheld.
4
5.3 The
order of the court below as regards the first claim is hereby set
aside and it is substituted therefore, the order specified
below.
4
5.4 Judgment
is granted in favour of the plaintiff in the amount of R3 687,90.
The defendant is directed to pay interest on the
capital amount of R3
687,90 at the rate of 15,5% per annum, calculated from the date of
service of the summons until the date of
final payment. The
defendant is directed to pay the cost of the action.
_______________
M. H. RAMPAI, J
I
concur.
_________________
A. P. BECKLEY, J
On
behalf of the Appellant: Adv. J. Y. Claasen
Instructed
by:
Naudes
BLOEMFONTEIN
On
behalf of the Respondent: Adv. P. J. T. de Wet
Instructed
by:
Symington & De Kok
BLOEMFONTEIN
/em