Shoprite Checkers (Pty) Ltd v Bumpers Schwarmas CC and Others (231/2002) [2003] ZASCA 57; [2003] 3 All SA 123 (SCA) (30 May 2003)

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[2003] ZASCA 57
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Shoprite Checkers (Pty) Ltd v Bumpers Schwarmas CC and Others (231/2002) [2003] ZASCA 57; [2003] 3 All SA 123 (SCA); 2003 (5) SA 354 (SCA) (30 May 2003)

IN THE SUPREME COURT OF APPEAL
OF SOUTH AFRICA
Case number : 231/2002
REPORTABLE
In
the matter between :
SHOPRITE
CHECKERS (PTY) LTD
Appellant
and
BUMPERS
SCHWARMAS CC
First Respondent
RUDOLF
JACOBUS KLOPPER
Second Respondent
MADELAINE
JOHANNA KLOPPER
Third Respondent
CORAM
: MARAIS and CLOETE JJA and HEHER AJA
DATE
: 20 MAY 2003
DELIVERED
: 30 MAY 2003
Summary: The court below erred on the facts in granting
rectification.
____________________________________________________________
JUDGMENT
____________________________________________________________
CLOETE JA
/
CLOETE
JA
:
[1] The essential question in this appeal, which comes
before this court with the leave of the court below, is whether that
court
was correct in granting the rectification sought by the
respondents. The judgment is reported in
2002 (6) SA 202
(C) and the
references which follow will be to that report.
[2] It is unnecessary to repeat the facts in any detail
as they are exhaustively set out in the judgment of the court below.
For
present purposes it suffices to emphasize the following. In
terms of a written agreement the appellant, represented by Van
Tonder,
sold a business undertaking as a going concern to the first
respondent, a close corporation represented by the second respondent.
It is this agreement which the respondents sought to rectify. The
terms of the rectification appear from 206C-E: in essence, the
respondents sought to have inserted in the agreement of sale an
obligation on the part of the appellant to negotiate a lease for
the
first respondent with the owner of the premises where the business
was conducted; and the respondents averred that the terms
of that
lease were to be the same as the lease which the owner had previously
concluded with its previous tenant Palmer, save for
the period and
the rental.
[3] The crux of the
finding of the court below is to be found at 217J-218F. That court
considered the ‘essential question’ in
the dispute to be ‘which
party was obliged to arrange for the conclusion of the lease’. In
adopting that approach, the court
failed to appreciate the
significance of both the terms of the lease for which the respondents
contended and the evidence of Hirschfield
and Fine, both of whom
testified on behalf of the appellant.
[4] Hirschfield was a
representative of the owner of the premises where the business which
the first respondent purchased from the
appellant, was conducted.
Van Tonder and the second respondent went to see Hirschfield
immediately before the second respondent
signed the agreement of
sale. The meeting took place at the insistence of the second
respondent, who was concerned to ensure, before
he signed the
agreement of sale, that the owner of the premises would grant a lease
to the first respondent. The Palmer lease was
available at the
meeting and was discussed. That lease contained a clause which read
as follows:
‘Die Verhuurder verleen ook aan
die Huurder die reg om na verstryking van die opsieperiode in die
jaar 2004, die bestaande huurperseel
te koop indien die Verhuurder
bereid sou wees om dit te doen. Indien die eiendom herontwikkel
word, kom die partye ooreen dat die
Huurder ook 'n opsie verkry om
die nuut ontwikkelde perseel te bekom op terme en voorwaardes soos
mettertyd ooreengekom.’
At the risk of stating
the obvious, I point out that the clause conferred an (unenforceable)
option on the tenant to acquire the
leased premises were the building
to be renovated; it did not, and nor did any other clause, oblige the
tenant to vacate the leased
premises either temporarily or
permanently should such renovation take place.
[5] Hirschfield, on his
version which was supported in this regard by Van Tonder, said that
he had made it quite clear to the second
respondent during the
meeting that there would be two differences between the previous
lease with Palmer and any lease with a new
tenant: firstly, the
rental would be increased; and secondly, there would be a
‘development clause’. According to Hirschfield,
he stressed this
latter aspect because it was potentially contentious.
[6] On Hirschfield’s
evidence, he indicated to the second respondent that the ‘development
clause’ which the owner of the premises
would require, would be a
clause which would oblige the tenant, on twelve months’ notice, to
vacate the premises for several months
should the premises be
renovated; and he gave some indication to the second respondent that
the tenant would be given an option
to continue the business in a
shop forming part of the redevelopment, once it was completed. Such
an option was, however, not included
in the ‘development clause’
in the lease ultimately submitted on behalf of the owner to the
second respondent. That clause was
in the following terms:
‘6.1 Should the
LANDLORD elect to redevelop the building, the LANDLORD shall at its
sole discretion be entitled to terminate the
agreement of lease
provided that the LANDLORD has given the TENANT 12 (TWELVE) MONTHS
written notification to vacate the premises.
6.2 Should the LANDLORD terminate the agreement of
lease as aforesaid, then the TENANT shall have not [sic] claim of any
nature whatsoever
against the LANDLORD as a result of such
termination.’
[7] If accepted,
Hirschfield’s evidence would constitute an insuperable obstacle to
the respondents’ case because neither of the
representatives of the
parties to the agreement of sale of the business ─ Van Tonder and
the second respondent ─ could have had
the common continuing
intention, much less have agreed, that it would be a term of the sale
agreement that the lease to be obtained
by the appellant for the
first respondent from the owner of the premises, would be the same as
the Palmer lease (save only for the
period and rental). Both Van
Tonder and the second respondent would have been aware before the
sale agreement was concluded by them
that the owner of the premises
required a ‘development clause’ obliging the tenant, the first
respondent, to vacate the premises
should they be renovated.
[8] Hirschfield’s
evidence was not rejected by the court below. Counsel representing
the respondents on appeal ─ correctly ─
conceded that a perusal
of the record does not justify its rejection. That evidence does
conflict with the evidence of the second
respondent, who said that
there was no mention of or discussion about a ‘development clause’.
There is, however, no room for
either being mistaken and no
conceivable reason why Hirschfield would lie on this aspect. None
was suggested to him in evidence.
On the contrary, the probabilities
point the other way: the property was bought as an investment and
with the intention of redeveloping
it, and without a ‘development
clause’ no development would have been possible for the duration of
the lease (which the second
respondent wished to endure for a period
of five years with an option to renew for a further period of five
years).
[9] Hirschfield’s
evidence was, as I have already said, supported by Van Tonder. The
court below roundly rejected Van Tonder’s
evidence for reasons the
adequacy of which is debatable, but it is unnecessary to make a firm
finding in this regard. As I have
said, the evidence of Hirschfield
was not, nor could it justifiably have been, adversely commented upon
by the trial judge.
[10] Hirschfield’s
evidence also fits with the evidence of Fine, another representative
of the owner of the premises, who said that
he caused a lease to be
drawn up which incorporated the development clause which I have
already quoted and that he had confirmed
inter
alia
the terms of this clause with the second
respondent before doing so. According to Fine, the second respondent
had no comment on
the terms of the clause. This evidence, if
accepted, is similarly destructive of the respondents’ version, and
for the same reason:
it establishes that the second respondent was
content to accept a lease containing the ‘development clause’ in
the form ultimately
presented to the second respondent to sign on
behalf of the first respondent, and not a lease similar to the Palmer
lease which contained
no such clause. The second respondent denied
that he had had any discussion with Fine at any time. The
respondents’ counsel was
constrained on appeal to submit that Fine
had not told the truth. But no credibility finding adverse to Fine
was made by the court
below and none is justified on appeal.
[11] Counsel
representing the respondents on appeal pointed to a contradiction
between the evidence of Hirschfield, who said that
Fine had
negotiated the terms of the lease with the second respondent; and
that of Fine, who said that he had been given the terms
of the lease
by Hirschfield and had merely confirmed the identity of the tenant,
the amount of the rental and the terms of the ‘development
clause’
with the second respondent. The contradiction is, however, more
apparent than real. What obviously happened is that neither
negotiated with the second respondent: Hirschfield told Fine what he
wanted included in the lease and Fine conveyed these terms
to the
second respondent.
[12] When the evidence
of Hirschfield and Fine, the significance of which was evidently not
appreciated by the court below, is taken
into account, it cannot in
my view be said that the respondents discharged the onus of proving
that the sale agreement should be
rectified in the terms sought: on
the appellant’s version, which is no less probable than that of the
respondents, Hirschfield
told the second respondent and Van Tonder
that the lease would be different from the Palmer lease
inter
alia
in that it would contain a ‘development
clause’; Fine informed the second respondent what the wording of
that clause would be;
and the second respondent accepted both. It
is true that the ‘development clause’ as drafted did not contain
a provision that
the tenant would be entitled to occupy premises in
the renovated building as Hirschfield had indicated to the second
respondent it
might; but the fact remains that on the appellant’s
case the second respondent (and, for that matter, Van Tonder) knew
that the
owner of the premises would require a ‘development clause’
to be inserted in the lease and that the lease would in that regard
differ from the Palmer lease.
[13] Of course it was
important to the purchaser of the business, the first respondent, as
the court below stressed (at 218D-E), that
it have security of tenure
in respect of the premises at which the business was to be conducted;
and the second respondent realised
that. But the respondents cannot
escape from the fact that, on the evidence of Hirschfield and Fine,
there cannot have been a common
continuing intention on the part of
Van Tonder and the second respondent, much less an agreement between
them, that the terms of
the lease to be granted to the first
respondent would be the same as the Palmer lease (save only for the
period and the rental) and
that there would be no ‘development
clause’.
[14] The other fact
taken into account by the court below (at 218E-F) as a major
probability in favour of the respondents, namely,
the efforts made by
the appellant’s representatives to secure a lease for the first
respondent, is of no probative significance
on the above analysis.
The conduct of the appellant’s representatives may be consistent
with the existence of an obligation of
the appellant to secure a
lease for the first respondent. But such conduct is equally
explicable on the basis that, as the appellant’s
representatives
testified, it was in the appellant’s interests that the business
continue to be conducted by the first respondent
at the premises in
terms of the franchise agreement it had (in addition to the agreement
of sale) concluded with the first respondent.
This conduct does not
throw significant light on the answer to the fundamental question as
to what the terms of the lease were to
be.
[15] Counsel
representing the respondents moved for amendments to the respondents’
counterclaim to incorporate in the alternative
other prayers for
rectification. These prayers suffer from the same defect as the
existing prayer in that they also allege that
the terms of the lease
to be obtained by the appellant for the first respondent were (save
for the period and rental) to be the same
as the Palmer lease. The
amendments must accordingly be refused.
[16] The appellant was
obliged to apply for condonation for the late filing of the notice of
appeal. The delay was caused by the
non-availability of the judgment
granting leave to appeal. The application for condonation, which was
not opposed, was granted.
It was agreed that the costs of the
application should be costs in the appeal.
[17] The following order
is made:
1. The costs of the appellant’s application for
condonation for the late filing of the notice of appeal are made
costs in the appeal.
2. The respondents’ application for amendments to the
counterclaim is dismissed, and the respondents are ordered to pay the
appellant’s
costs in connection therewith jointly and severally.
3. The appeal is upheld, with costs, and the respondents
are ordered to pay the appellant’s costs of the appeal jointly and
severally.
4. The order of the court below is set aside and the
following order substituted:
‘
1. The defendants’ prayer for rectification of the
sale agreement, annexure A to the defendants’ counterclaim, is
dismissed;
2. The defendants are ordered to pay the plaintiff’s
costs of the hearing jointly and severally.’
………………
T D CLOETE
JUDGE OF APPEAL
Concur
:
Marais JA
Heher AJA
MARAIS JA:
[1] I concur in the judgment of Cloete JA. Regrettably,
it is necessary to address an issue which has nothing to do with the
merits
of the case but everything to do with appropriate decorum in
the courts. We live in an egalitarian age and modes of speech in
court
proceedings which are less than refined are to be expected. But
there are limits to what should be tolerated in a court of law. If
public respect is to exist for institutions such as courts of law
which are vital to the functioning of a free and democratic
constitutional
state, the use of coarse and lavatorial language in
court proceedings will contribute nothing towards earning and
preserving that
respect.
[2] Freedom of speech is a valuable constitutional right
but it does not extend to the use of obscene language in courts of
law. (Obviously,
I am not here referring to accounts given in court
proceedings of language used extra-curially where the giving of such
evidence
is relevant to the proceedings. That must be tolerated
because of its relevance to the issues in the case.)
[3] The rot in this case started when a witness chose to
use the expression ‘Stuff you’ and it went unremarked. The
expression
‘gatvol’ was also used. Yet another witness, despite
his professional standing, chose to say that he wished to ‘bullshit’
the lessor into believing in a certain state of affairs. Thereafter,
the word was employed again by the witness, by counsel who appeared
then, but not on appeal, for the respondent, and echoed by the trial
judge. None of them has the excuse of a limited vocabulary.
[4] An appellate court
is instinctively loath to criticise the manner in which a trial judge
allows proceedings to be conducted. Allowance
has to be made for
differences of personality and personal preference. And where the
trial judge is as conscientious and industrious
as Davis J, the
temptation to turn a blind eye is great. But I would be shirking my
duty if I did not say that the use of this kind
of language should
not have been countenanced. Permissiveness of this kind reflects
poorly upon the image of the High Court of South
Africa and the fact
that the judgment of the court
a
quo
has been
reported in the law reports, replete with quotations from the
evidence in which this offensive language was employed, aggravates
the damage.
[5] It is, of course,
not necessary when problems of this kind crop up, to fulminate and
call down fire and brimstone upon the user
of such language. All that
is necessary is a calm reminder to the witness that he or she is in a
court of law, that the solemnity
of judicial proceedings is not
consistent with the use of language of that kind, and that it should
not be repeated. If the witness
is so inarticulate that he or she
cannot readily find a less obnoxious substitute for the expression or
word used, the court should
assist in providing one. Where counsel
are responsible for the introduction of objectionable language the
response may of course
be less measured; counsel are expected to know
better.
[6] The next matter
requiring comment is this: the appellant sought leave to appeal in
the court
a quo
to the Full Bench and not to this Court. Nonetheless, leave to appeal
to this court was granted. If it was not an oversight on the
part of
the trial judge, it is a decision to be deprecated. If it was, it is
to be deprecated no less. Whatever a party or the parties
may prefer,
it remains the duty of the trial judge to consider what court is the
more appropriate in the circumstances of the case.
The issue was
purely one of fact; no controversial legal principle was involved;
and the sums of money involved are by today’s
standards not so
great as to justify the decision. The inappropriate granting of leave
to appeal to this court increases the litigants’
costs and results
in cases involving greater difficulty and which are truly deserving
of the attention of this court having to compete
for a place on the
court’s roll with a case which is not.
____________________
R
M MARAIS
JUDGE OF APPEAL
CLOETE JA)
HEHER
JA) CONCUR