THE SUPREME COURT OF APPEAL
OF SOUTH AFRICA
Case number : 38/03
Reportable
In the matter between :
MAN TRUCK & BUS (SA) (PTY) LIMITED APPELLANT
and
DORBYL LIMITED t/a DORBYL TRANSPORT
PRODUCTS AND BUSAF RESPONDENT
CORAM : MPATI DP, ZULMAN, FARLAM, CLOETE, LEWIS JJA
HEARD : 17 FEBRUARY 2004
DELIVERED : 25 MARCH 2004
Summary: Contractual obligations held to be reciprocal. A decision to refer motion
proceedings to evidence held not to be appealable.
__________________________________________________________
JUDGMENT
CLOETE JA/
2
CLOETE JA:
INTRODUCTION
[1] The factual matrix against which th is appeal falls to be decided is the
following. Africa Truck & Bus (Pty) Limited (‘ATB’), whose rights ultimately
devolved upon the appellant, entered into a lease agreement with Dusbus
Leasing Co CC (‘Dusbus’). In terms of the lease agreement ATB leased 12
buses to Dusbus for a period of 60 months and for a total consideration in
excess of R11 million, payable in instalments. ATB had manufactured the
chassis of the buses and a division of the respondent had supplied the
bodies, which had been purchased from it by ATB for over R3 million. ATB
further undertook to Dusbus, in terms of a maintenance agreement also
concluded with Dusbus, to maintain the buses for an agreed fee; and
Dusbus agreed to make the buses av ailable to ATB to enable this to be
done.
[2] As ATB’s exposure in terms of the Dusbus lease was significant, it
concluded what has in these proc eedings appropriatel y been termed a
‘risk sharing agreement’ with the res pondent. It is the terms of that
agreement, and in particular, clauses 4 and 5 thereof, which lie at the heart
of the dispute between the parties. (T he references in the agreement to
‘DTP’ are references to a division of the respondent.) Clause 4 provides:
‘ATB will maintain, service and repair the 12 buses under the terms of a maintenance
agreement entered into by and between ATB and the debtor as far as the bus chassis
3
are concerned. ATB will further make sure that DTP can inspect the condition of the
buses from time to time but at least every six months at the premises of ATB.
Necessary other repairs will be carried out at a workshop dedicated by DTP, for the
account of the debtor.’
Clause 5 provides inter alia:
‘In the event of AT B being required to re-possess the 12 buse s under the lease
agreement because the Debtor fails to pay the deposit, the accelerated instalment
or/and any of the monthly instalments or for any other reason DTP hereby undertakes
to make payment of the guaranteed amount as defined per Par.6) to ATB within 7 days
of written notice to that effect being delivered by ATB on DTP.’
[3] Dusbus defaulted by failing to pay instalments due in terms of the
lease agreement and the buses were repossessed. The appellant, as the
successor in title to ATB’s rights, sued the respondent for payment of the
guaranteed amount. That amount was defined in accordance with a
formula set out in clause 6 of the agreement.
[4] The guaranteed amount was calcul ated by the appellant at over
R1,4 million and the appellant, as applicant, instituted motion proceedings
against the respondent for payment of this amount, interest and costs. The
court of first instance (Jordaan AJ) granted such an order. On appeal, the
full court of the Witwatersrand Local Division (Cachalia J, Marais J and
Jajbhay AJ concurring) set the order aside and referred the matter for the
hearing of oral evidence. The formul ation of the issues was, by
agreement, left to the parties and the full court required this formulation to
4
be referred back to it by a fixed date. Special leave to appeal further was
subsequently granted by this court.
THE ISSUES
[5] The dispute between the parties has essentially three facets:
(a) Did ATB, in terms of clause 4 of the risk sharing agreement,
undertake vis-à-vis the respondent to maintain the buses in terms of the
maintenance agreement between ATB and Dusbus?
(b) If so, was this undertaking recipr ocal to the respondent’s obligation
to pay ATB the guaranteed amount if Dusbus defaulted in its obligations in
terms of the lease agreement between ATB and Dusbus?
(c) If so, should the full court’s dec ision to refer the matter for the
hearing of oral evidence, be set aside?
I shall deal with each question in turn.
OBLIGATION TO MAINTAIN
[6] It was submitted on behalf of the appellant that the first sentence of
clause 4 of the risk sharing agreement was merely a recital similar to the
recitals in clauses 1 to 3 of that agreement and that it imposes no
obligation on ATB to maintain the buses in terms of the maintenance
agreement. There are three reasons why this argument is fallacious.
[7] First, there is a clear change in language in clause 4 when
contrasted with the language used in clauses 1 to 3. Those latter clauses
begin:
5
‘1. ATB has entered into 12 Lease Agreements with “Dusbus Leasing cc…
2. ATB purchased the adequate 12 bus bodies from BUSAF, a division of “DTP”…
3. DTP is aware of the contents of the lease agreement…’
Clauses 1 to 3 are obviously recorda ls. But the language of clause 4 is
different. It does not begin ‘ATB has undertaken to Dusbus to maintain’. It
begins ‘ATB will maintain’. These latter words are indicative of an
obligation undertaken to the respondent to be performed in the future, not
a recordal of an obligation already undertaken by ATB to Dusbus. There
was some discussion during argument as to the content of the obligation
undertaken by ATB to the respondent. I do not appreciate the difficulty.
Clause 10 of the risk sharing agre ement expressly conferred the right on
the respondent, in the event of ATB breaching any of the terms of that
agreement, and provided seven days written notice was given, to enforce
the agreement by way of specific performance or to cancel the agreement
and institute damages for its breach. ATB’s obligation to the respondent
was to comply with the contract it had with Dusbus. It is for that very
reason that the second sentence of clause 4 of the risk sharing agreement
imposes an obligation on ATB to make sure that the re spondent could
inspect the condition of the buses from time to time.
[8] Secondly, it was, correctly, c onceded on behalf of the appellant in
argument that the second and third sentences of clause 4 impose
obligations on respectively ATB and the respondent ─ in the case of the
6
former, to ensure that the respondent could inspect the buses from time to
time; and in the case of the latter, to carry out ‘necessary other repairs’
(which obviously means repairs other than the repairs to be performed by
ATB in terms of the maintenance agreement. That obligation was owed to
ATB, not to Dusbus as is suggested in para [35] of the judgment of my
learned colleague Lewis JA). The language is the same in each case: the
word ‘will’ is used. It would therefore be strange if the first sentence, which
uses the same language, was merely a recordal of a past event and the
two sentences which follow impose positive obligations for the future. But
what is decisive in the language used is that the second sentence, which
clearly imposes an obligation on ATB, begins ‘ATB will further’. The plain
meaning is that an additional obligation is being undertaken. The question
‘additional to what?’ receives an obvious reply: additional to the obligation
in the first sentence.
[9] Thirdly, the creation of an obligation on the part of ATB vis-à-vis the
respondent to comply with its obligation to Dusbus would make
commercial sense. The respondent was obliged to pay the guaranteed
amount if the buses were repossessed. If this took place, the buses were,
in terms of clause 7 of the agreement, to be sold and the profit or loss was
to be shared as to 29,5 per cent by the respondent and 70,5 per cent by
ATB. The exposure of the respond ent was therefore significant. If the
cause of Dusbus’s default was lack of maintenance of the buses by ATB,
7
the respondent would in effect be guaranteeing ATB’s default and
agreeing to bear part of the c onsequences of that default ─ unless ATB
undertook vis-à-vis the respondent to maintain the buses in accordance
with the maintenance agreement.
[10] I therefore conclude that ATB, in terms of clause 4 of the risk sharing
agreement, did undertake vis-à-vis the re spondent to maintain the buses
in terms of the maintenance agr eement between ATB and Dusbus.That
brings me to a consideration of th e next question, namely, whether the
obligations in the first sentence of paragraph 4 are rec iprocal to the
obligations in paragraph 5 of the risk sharing agreement.
RECIPROCITY OF OBLIGATIONS
[11] The appellant’s counsel advanc ed an argument as to the reciprocity
of the obligations which it would be convenient to dispose of at the outset.
The argument was that the lease ag reement contained a clause which
provided that Dusbus would not be entitled to withhold payment of any
rentals for any reason whatsoever; and that the maintenance agreement
provided that Dusbus had to pay the charges due in terms of that
agreement without deduction or set off. The suggestion was that, because
of these clauses, Dusbus was not entitled to raise the exceptio non
adimpleti contractus against the appellant fo r payments due under either
the lease or the maintenance agreement. It is not necessary to analyse the
effect of these clauses. Assuming that counsel is correct, any limitation of
8
the rights of Dusbus in terms of its contracts with ATB cannot enure to the
benefit of ATB or its successor in ti tle, the appellant, in terms of its
separate contract with the responden t. Put conversely, the fact that the
risk sharing agreement made ATB’s obligations owed to Dusbus in terms
of the maintenance agreement enforceable against ATB at the suit of the
respondent, does not mean that the respondent’s rights were limited in the
same way that Dusbus’s rights may have been. Any limitations on
Dusbus’s rights in its contracts with ATB were, so far as ATB’s contract
with the respondent is concerned, res inter alios acta.
[12] The essential question in this part of the inquiry is whether the
respondent’s obligation to pay ATB the guaranteed amount was reciprocal
to ATB’s obligation to the respondent to maintain the buses under the
maintenance agreement. In contracts which create rights and obligations
on each side, it is basically a ques tion of interpretation whether the
obligations are so closely connected that the principle of reciprocity
applies: B K Tooling (Edms) Bpk v Scope Precision Engineering (Edms)
Bpk 1979 (1) SA 391 (A) at 418B and authorities there quoted. Where a
contract is bilateral the obligations on the two sides are prima facie
reciprocal, unless the contrary in tention clearly appears from a
consideration of the terms of the contract: Rich and Others v Lagerwey
1974 (4) SA 748 (A) at 761 in fine ─762A; Grand Mines (Pty) Limited v
Giddey NO 1999 (1) SA 960 (SCA) at 971C─D. (The reference to Grand
9
Mines is to the minority judgment of Schutz JA but it is not in conflict with
the majority on this point ─ cf 966C.) But reciprocit y of debt in law does
not exist merely because the obligations which are claimed to be
reciprocal arise from the same contract and each party is indebted in some
way to the other. A far closer, and more immediate correlation than that is
required: Minister of Public Works and Land Affairs and Another v Group
Five Building Ltd 1996 (4) SA 280 (A) at 288E ─F. The overriding
consideration is the intention of the parties; and the question whether the
performance of respective obligatio ns was reciprocal, depends upon the
intention of the parties as evident from the terms of their agreement seen
in conjunction with the re levant background circumstances: Grand Mines
at 966C─E and authorities there quoted.
[13] In the risk shari ng agreement, the obligati on on the respondent at
issue is to make payment of t he guaranteed amount if the buses are
repossessed. That was the whole p urpose of the agreement; clause 1
says so, in terms:
‘It is the purpose of this agreement to record the shared risk to be borne by the parties
in relation to the lease agreements pertaining to the buses in the instance of any
default by the “Debtor” on any or all of the leases and/or upfront payments.’
Maintenance of the buses was important to the respondent. If they were
not maintained properly, they could not be used to best advantage by the
lessee, Dusbus, and this would adv ersely affect their revenue earning
10
capacity ─ so increasing the possibilit y of a default by Dusbus, a
repossession by ATB and the consequent obligation on the respondent to
pay the guaranteed amount. Maintenanc e of the buses was equally
important if the repossession had nothing to do with lack of maintenance
of the buses by ATB. As I have already said, in the event of repossession,
the amounts recoverable by the responden t in terms of clause 7 of the
agreement would be adversely affected or the respondent’s loss would be
increased, if the buses had no t been maintained. As a matter of
commercial reality it is therefore overwhelmingly probable that the parties
intended that the respondent’s obligation to pay the guaranteed amount
would be in exchange for, and therefore reciprocal to, ATB’s obligation to
maintain the buses in terms of the maintenance agreement. Indeed, ATB’s
obligation to maintain the buses (and the ancillary obligation to make the
buses available to the respondent for inspection) was the only obligation it
owed the respondent in terms of the risk sharing agreement. I respectfully
point out that the contract does not, as the appellant’s counsel contended,
provide that the obligation on the respondent to pay the guaranteed
amount was undertaken in return for t he financial outlay made by ATB in
paying for the buses. It is also important to emphasize that, for the reasons
given in paras [6] to [9] above, ATB owed a duty enforceable by the
respondent to maintain the buses in terms of ATB’s contract with Dusbus.
That vital fact is, with respect, not accorded sufficient weight by Lewis JA
11
in para [53] of her judgment. To paraphrase the reasoning of Colman J in
Rich (753 in fine) approved by this court (762A), this does not appear to be
a contract whereunder the respondent undertook, unconditionally, to part
with a substantial sum of money merely because ATB had made a
promise to it. I accordingly respectfu lly disagree with the approach of
Lewis J in para [38] of her judgment.
[14] To sum up: the risk sharing agreement was a bilateral agreement.
The obligations of the parties were th erefore prima facie reciprocal. No
contrary intention appears from t he terms of the contract read in
conjunction with the relevant background circumstances ─ indeed, the
probabilities are that that is precisely what they intended. I accordingly
conclude, to use the words of Corbett J in ESE Financial Services (Pty)
Limited v Cramer 1973 (2) SA 805 (C) at 809D─E, that the first sentence
of clause 4 of the risk sharing agreement and clause 5 thereof do
constitute ‘such a relationship between the obligation to be performed by
the one party and t hat due by the oth er party as to indi cate that one was
taken in exchange for the performance of the other’.
[15] In view of the considerable reliance placed by the appellant’s
counsel on the decision of the majority in Grand Mines and in particular,
the phrase ‘reciprocal obligations in the strict sense’ used by Smalberger
JA at 967D, it would be appropriate to analyse that decision in a little detail.
The facts are adequately set out in the headnote as follows:
12
The respondent, as the liquidator of B, had sued the appellant in terms of a contract
between B and the appellant. In terms of the contract B mined coal from a site owned
by the appellant and delivere d it to the appellant. The am ount to be paid to B was
calculated on the 25 th of each month and paid one month later. It was a term of the
contract that B was obliged to rehabilitate the site, which was an opencast mine, during
the course of the mi ning. There had been no programme of re habilitation agreed
between the parties nor had one been laid down by the Inspector of Mines. Prior to its
liquidation B had fallen behind with the rehabilitation, such that it had not complied with
its obligations in this regard. In defence to the respondent’s action for payment for coal
already mined and de livered the appellant had raised the exceptio non adimpleti
contractus, averring that B’s obligation to rehabilitate the site was reciprocal to its
obligation to pay.
Both judgments in the case restated t he general rule that the principle of
reciprocity would normally apply to a contract of letting and hiring (966C;
971D). The majority found that t he intention of the parties was
nevertheless that B’s obligation to r ehabilitate was not reciprocal to the
appellant’s obligation to pay. The reasons for this conclusion appear from
the passage at 966H─967D as follows:
‘Clause 2 of the agreement provided for measurement and the payment clause (clause
5) stipulated that “month-end will be the 25th of each month and payment is to be made
by the 25th of the following month”.
The effect of the agreement was that Grand Mines was obliged, on the 25 th of
each month, and on presentation of an invoice, to pay, at the stipulated rate, for all coal
mined, measured and delivered by the 25
th of the preceding month. Its obligation to
13
pay was fixed both in relation to a date and a formula, an d the amount payable by it
was readily ascertainab le. Payment due was calculated according to the tonnage of
coal delivered ─ the extent to which rehabilitation had taken pl ace did not enter into
the equation in determining payment. By c ontrast, rehabilitatio n was an ongoing
process permitting of a degree of flexibility and latitude, to be c onducted in phases,
with no dates, schedules or any other specific criteria laid down for or regulating its
performance. The circumstances of opencast mining are such that, to the knowledge
of the parties, rehabilitation of the area in respect of which coal was removed and
delivered, and payment called for, could not always have preceded or occurred
simultaneously with the time fixed for payment. Furtherm ore, given the nature and
requirements of rehabilitation, practical difficulties could be anticipated in attempting to
establish from month-end to month-end (as defined) whether rehabilitation was up to
date. In short, while there was an agreed formula correlating mining and delivery of
coal with payment, there wa s no corresponding formula go verning the relationship
between rehabilitation and pa yment suggesting that the performance of the one was
intended to be in return for the other.’
Smalberger JA then continued at 967D:
‘Having regard to these considerations I am of the view that the parties,
notwithstanding the bilateral nature of their contract and the degree of
interdependence between paymen t and rehabilitation, coul d not have intended that
they would be reciprocal obligations in the strict sense.’
This latter passage must not be taken as laying down a new test for
reciprocity. All that the dictum means is that, although there were bilateral
obligations, the obligation to rehabilitate was not reciprocal to the
obligation to pay.
14
[16] Counsel representing the appella nt submitted that there were four
similarities between the facts in the present matter and those in Grand
Mines. The first was formulated as follows:
‘Payment of the guaranteed amount is fixed both in relation to an event (i.e.
repossession, inter alia, “for any reason”) and a formula. This event and formula take
no account of whether ATB has performed its obligation to maintain the buses. No
specific penalty is prescribed for failure to comply with the obligation to maintain the
buses other than the ability of the Respondent to invoke the general breach clause,
something which it never did.’
But Grand Mines did not hold that the oblig ation to rehabilitate was not
reciprocal to the obligation to pay, simply because there was no formula
regulating payment in respect of the obligation to rehabilitate. Grand
Mines held that because there was a mont hly obligation to pay for coal
mined, measured and delivered, which was fixed in relation to a date and a
formula, whereas there was no such formula in respect of the obligation to
rehabilitate, the partie s could not have int ended the obligation to
rehabilitate to be reciprocal to the obli gation to pay. It was the contrast
which was vital to the decision of th e majority. In the present matter the
facts are entirely different. The respondent was obliged to make a one-off
payment if the buses were repossessed. The appellant was obliged, over
a period of time, to maintain the buses in accordance with the
maintenance agreement. There is simply no basis for holding that the
obligations are not reciprocal. And the absence of a penalty clause begs
15
the question: if the respondent’s obligation to pay the guaranteed amount
was reciprocal to the appellant’s obligation to maintain the buses in terms
of the maintenance agreement, there would be no need for such a clause
─ the respondent could resist a demand for payment on the basis of the
exceptio non adimpleti contractus.
[17] Lewis JA in para [48] of her judgment quotes a passage from Ese
Financial Services and concludes:
‘One would have expected the risk-sharing agr eement in this case likewise to have
spelled out in clear terms that, in the event of ATB failing to maintain the buses, it would
not be entitled to payment of the guaranteed amount.’
With respect, I disagree. In Ese Financial Services there were two
obligations on the defendant: to pa y a fee to the plaintiff for the
management of the defendant’s investment portfolio; and to pay a bonus
equivalent to one-sixth of the capital appreciation of the portfolio in excess
of ten per cent. The f ormer obligation was obviously dependent on the
plaintiff’s performance of its obligation to manage the portfolio. The latter
was held not to be so dependent. It was in this context that Corbett J made
the remarks at 810H─811A quoted by Lewis JA, namely:
‘Had the parties intended the payment of the bonus to depend, as a precondition, not
only upon the achievement of the required capital appre ciation but also upon the
satisfactory performance by plaintiff of its duty of management, then one would have
expected the contract to have reflected this in clear terms.’
The present is not an analogous case . As I have already pointed out, the
16
obligation which ATB undertook vis-à-vi s the respondent to maintain the
buses in terms of the maintenanc e agreement was the only obligation
undertaken by ATB to the respondent in terms of the risk sharing
agreement.
[18] The third similarity between the facts in Grand Mines and the
present appeal relied upon by the appella nt’s counsel was formulated as
follows:
‘Maintenance of the buses is by definition not someth ing which can take place
simultaneously with payment of the guaranteed amount u pon repossession of the
buses. In theory, repossession of the buses could occur even before any bus has been
brought in for its first service.’
But it is trite that the mere fact that one party has to perform first and in full,
does not mean that the other party’s obligation cannot be reciprocal. And if
a bus were to be repossessed before it had been brought in for its first
service, that would mean that there would be no room for the exceptio. It
does not mean that the obligation to maintain in terms of the maintenance
agreement cannot be reciprocal to the obligation to pay.
[19] The second and fourth similarities relied upon by the appellant’s
counsel were said to be the following (the italicised quotations are from the
passage in Grand Mines set out in para [15] above):
‘The obligation to maintain the buses (to the extent that it can be interpreted as an
obligation owed to the Resp ondent and not to the lessee, Dusbus) is an obligation
required to be performed as an “ongoing process permitting a degree of flexibility and
17
latitude “ over a protracted period of time. The obligation to pay the guaranteed amount
is not.’
And:
‘As in the Grand Mines’ case, “given the nature and requirements” of bus maintenance
“practical difficulties could be anti cipated in attempting to establish ” at the time when
payment of the guaranteed amount is demanded that maintenance is “up to date”….
Will a failure to effect a proper oil change enable th e Respondent to escape an
obligation in excess of R1 million?.... If a service is conducted two days late, does that
trigger the exceptio?’
These arguments are also without merit. In Grand Mines the majority did
not hold that the obligation to reh abilitate was not reciprocal to the
obligation to pay simply because of p ractical difficulties. It held that the
difficulties in ascertaining whether the obligation to rehabilitate was up to
date, in contrast with the fixed and definite formula correlating mining and
delivery of coal with payment, militated against a finding that the obligation
to rehabilitate was reciprocal to the obligation to make payment. If the
appellant’s argument were correct, it would mean that the majority
decision in Grand Mines would be authority for the proposition that, in a
contract of locatio conductio operis where A undertook to maintain B’s
fleet of motor vehicles and B undertook to pay A each month for doing so,
the obligations of the parties are not reciprocal because it would be difficult
to ascertain whether the maintenance was up to date at the end of each
month ─ which plainly is not the law.
18
[20] In conclusion on th is aspect: the attempt by the appellant’s counsel
to find similarities between the facts in Grand Mines and the facts in the
present matter overlooks the reasoning of the majority, which was that
obligations contained in a contract of locatio conductio operis are prima
facie reciprocal; but that on the particular facts of that case the intention of
the parties was that the obligation to rehabilitate was not to be reciprocal to
the obligation to pay. In the presen t matter, for the reasons given in
paragraph [13] above, the intenti on of the parties as a matter of
commercial probability must have been that the obligation on the
respondent to pay the guaranteed amount was reciprocal to ATB’s
obligation to maintain the buses in terms of the maintenance agreement. I
agree, with respect, with Lewis JA’s statement in para [52] of her judgment
that the materiality of an obligation does not render it per se reciprocal. But
where, as here, both parties know that it is important to a party who may
be called upon to perform an obligation th at the other party should have
performed its obligation, the probabilities must be that the parties intended
the latter performance to be reciprocal to the former.
REFERRAL TO EVIDENCE
[21] It was submitted on behalf of the appellant that there was not a
sufficient dispute of fact to warrant the full court referring the matter for the
hearing of oral evidence. The short answe r to this submission is that this
direction is not appealable. It is not a ‘judgment or order’ within the
19
meaning of those words in s 20(1) of the Supreme Court Act, 59 of 1959.
This court held in Zweni v Minister of Law and Order 1993 (1) SA 523 (A)
at 532J─533B:
‘A “judgment or order” is a decision which, as a general principle, has three attributes,
first, the decision must be final in effect and not susceptible of alteration by the Court of
first instance; second, it must be definitive of the rights of the parties; and third, it must
have the effect of disposing of at least a substantial portion of the relief claimed in the
main proceedings ( Van Streepen & Germs (Pty) Ltd [v Transvaal Provincial
Administration 1987 (4) SA 569 (A)] at 586I ─587B; Marsay v Dilley 1992 (3) SA 944
(A) at 962C─F). The second is the same as the oft-stated requirement that a decision,
in order to qualify as a judgment or order, must grant definite and distinct relief ( Willis
Faber Enthoven (Pty) Ltd v Receiver of Revenue and Another 1992 (4) SA 202 (A) at
214D─G).’
The direction of the full court that evidence be led, has none of these
attributes. The position is, for practical purposes, identical to that dealt with
in Union Government (Minister of the Interior) and Registrar of Asiatics v
Naidoo 1916 AD 50. In that matter, a single judge of the Transvaal
Provincial Division directed an application made upon motion to stand
over for the production of oral evidence. Both parties consented in writing
to an appeal being had direct to the Appellate Division. The court held that
special leave to appeal was necessary , but, as no order had been made
upon the motion, an application for such leave was premature and should
be refused. Innes CJ said at 52:
20
‘There has been an application for re lief, but no decision upon it. The prayer of the
petition falls under nine separate heads, and in regard to none of them has any order
been made. The application has merely been postponed for further ev idence. When
the enquiry is resumed the judge may decide in favour of the present applicants on the
facts; or he may possibly, th ough very improbably, revise his view of the law upon
further argument. But if he do es neither; if he finds against the applicants on the law
and the facts, and grants the relief prayed for, it will then be competent for them to
appeal and to raise every point upon which they now wish to rely. The fact is that the
present application is for leave to appeal not against the order of the learned judge ─
for he has made none ─ but against his reasons. It is entirely premature, and must at
this stage be refused.’
CONCLUSION
[22] The appeal is dismissed with costs, including the costs of two
counsel.
_______________
T D CLOETE
JUDGE OF APPEAL
Concur: Mpati DP
Zulman JA
Farlam JA
21
LEWIS JA
[23] The central issue in this appe al is whether obligations undertaken by
the parties under a so-c alled ‘risk-sharing agreement’ were reciprocal,
such that malperformance by the appellant entitled the respondent to raise
the exceptio non adimpleti contractus as a defence against a claim for
payment in terms of the contract. If the obligations are found to be
reciprocal, the second issue arises, namely whether there are factual
disputes between the parties whic h preclude the matter being decided
without the hearing of evidence.
[24] The court of first instance, alt hough finding that the obligations were
reciprocal, such that the exceptio would avail the respondent in the event
of malperformance on the part of the appellant, considered that there was
not clear evidence before it that the appellant was guilty of a failure to
perform, and granted the application. On appeal with the leave of the
court, a full bench (Johannesburg High Court, per Cachalia J, Marais J
and Jhajbhay J concurring) agreed with the court below on the issue of
reciprocity, but referred the matter to oral evidence for the determination of
what it considered to be disputes of fact on the nature of the appellant’s
performance. Special leave to appeal against these findings was granted
by this court.
22
Background
[25] The appellant is the cessionary of rights under the risk-sharing
contract originally between Africa T ruck & Bus (Pty) Ltd (‘ATB’) and the
respondent. That contract was one of several concluded between various
parties at much the same time, and which formed part of what was
essentially one commercial transaction. Those germane to the dispute
between the parties included a co ntract of lease between ATB and
Dusbus Leasing CC (‘Dusbus’), under which ATB let to Dusbus 12 buses
for a period of 60 months. ATB entered into a further contract with Dusbus
undertaking to maintain the buses du ring the currency of the lease. ATB
was the manufacturer of the bus chassis. The respondent supplied the bus
bodies. The risk-sharing contract was concluded because of the exposure
to risk of ATB in terms of the lease. I shall deal with this aspect later.
[26] The buses were delivered to Dus bus, which in due course failed to
make two monthly payments, in February and in May 1999. The lease was
accordingly cancelled in May 1999, and the buses re possessed, by a
finance company in which the rights vest ed at the time. The appellant, in
whom the rights under the lease a nd the risk-sharing agreement vested
pursuant to cessions from the finance company and ATB, demanded
23
payment of the sum guaranteed by the respondent under the risk-sharing
agreement. The exceptio was raised by the respondent as its principal
defence: ATB had failed to maintain the buses in accordance with the
terms of the maintenance agreem ent, and in accordance with an
obligation undertaken to the respondent in the risk-sharing agreement so
to do. It could thus not claim performance from the respondent.
The salient terms of the agreements
The lease
[27] Dusbus hired the buses on the basis that it would pay rental to ATB
in accordance with a schedule attached to the lease. Clause 8.1 provided:
‘The Lessee shall pay the Lessor as rental for the use of the Goods
[the buses], the amounts specified in the First Schedule at the time or
times therein stipulated. All paymen ts in terms of this Agreement
shall be made without deductions of any kind . . . .’
Clause 8.2 stated:
‘As long as this Agreement remains in force the Lessee shall not be
entitled to withhold payment of any rentals for any reason
24
whatsoever. Without derogating from the generality of the aforegoing
the Lessee shall not be entitled to withhold payment of any rental by
reason of the fact that the Goods are defective, have been damaged
or cannot be operated or used or have been lost or stolen or that the
Seller [the definition in the contract includes the manufacturer of the
goods or the seller of the goods to the lessor] or anyone else has
failed to make good any breach or fulfil any warranty or
representation and in the event of any dispute arising between the
parties, the Lessee shall, pending settlement of or a decision in such
dispute, continue to pay all rentals and other amounts payable in
terms hereof on their due dates for payment as set out in the First
Schedule on the basis however that no such payment shall derogate
from any liability of the Lessor.’ (My emphasis.)
The maintenance agreement
[28] This contract, also betwe en ATB and Dusbus, imposed on ATB
obligations to maintain and to service the buses at regular intervals during
the currency of the lease. In turn, Dusbus was liable to make the buses
available for inspection and repair and to use the buses in a fashion
regulated by the contract. Clause 4.5 of the contract provided that Dusbus
would pay to ATB the charges calc ulated in terms of the agreement
25
monthly ‘without deduction or set-off’.
The risk-sharing agreement
[29] Although the contract was referred to by the appellant, during the
course of the litigati on, as a ‘risk-sharing agreement’ counsel for the
appellant submitted at the hearing of the appeal that it was more
appropriately termed a ‘guarantee agreement’. In my view, nothing turns
on the label of the agreement and I shal l refer to it as the ‘risk-sharing
agreement’. It is this agreement that is the crux of the dispute.
[30] This contract was concluded between ATB and the respondent. It
records, in clause 1, that ATB had ent ered into the lease with Dusbus in
respect of the 12 buses with an ‘aggregate net asset value’ of R7 385 832,
payable over six months. The clause continues:
‘It is the purpose of this agreement to record the shared risk to be borne by
the parties in relation to the lease agreements pertaining to the buses in
the instance of any default by the “D ebtor” [Dusbus] on any or all of the
leases and/or upfront payments.’
[31] Clause 2 records that ATB had purchased the buses from BUSAF, a
division of the respondent, for the sum of R3 111 721.20; that sum
represented 42,13 per cent of the ‘total net asse t value of the buses’.
26
Clause 3 set out the details of the payment schedule. It is clause 4 that is
central to this dispute. It reads
‘ATB will maintain, service and repair the 12 buses under the terms of
a maintenance agreement entered into by and between ATB and the
debtor as far as the bus chassis is concerned. ATB will further make
sure that DTP [the respondent] can inspect the condition of the buses
from time to time but at least ev ery six months at the premises of
ATB. Necessary other repairs will be carried out at a workshop
dedicated by DTP, for the account of the debtor.’
[32] Clause 5 provides that in the event of ATB having to repossess the
buses because of Dusbus’s failure to pay the deposit or any instalment
due in terms of the lease, on the receipt of written notice to this effect, the
respondent will pay to ATB a ‘guaranteed amount’ determined in
accordance with clause 6. Clause 6 sets out a formula for the
determination of the amount, and it is this sum that the appellant claims
from the respondent. Clause 10 sets out the remedies of the parties in the
event of breach: on notice to the other party to remedy any breach, either
party may demand specific performance or cancel and claim damages for
the breach.
27
[33] The respondent relies on the breach of the obligation to maintain the
buses said to have been imposed on ATB by clause 4 in asserting that the
appellant cannot claim the guarant eed amount. At no stage did the
respondent call upon ATB to remedy any breach, nor did it seek to cancel
the contract, in terms of clause 10.
The meaning of clause 4 of the risk-sharing agreement
[34] The appellant argues that clause 4, or at least the first sentence of
the clause, is no more than part of a preamble to the contract, recording
the contractual arrangements between ATB and Dusbus. An examination
of the contract does indeed reveal t hat the first three clauses recite the
background against which the contract is concluded. But the fourth clause
is more difficult to classify as introduc tory, or as a simple recital. The first
sentence states that ‘ATB will maintain, service and repair the 12 buses
under the maintenance agreement’. The second sentence reads ‘ATB will
further make sure that DTP can inspect the condition of the buses from
time to time but at least every six months at the premises of ATB’. The
third sentence is of a different ilk: ‘Necessary other repairs will be carried
out at a workshop dedicated by DT P, for the account of the debtor
[Dusbus]’.
[35] The respondent argues that the wording of the first sentence clearly
28
indicates that ATB is undertaking an obligation not only to Dusbus but also
to the respondent to maintain the buses in terms of the maintenance
agreement. The second sentence, it contends, is even clearer: ATB
undertakes to make the buses available for inspection. The third sentence,
on the other hand, seems to impose an obligation on the respondent to
Dusbus: other repairs will be done at a workshop ‘dedicated by DTP, for
the account of the debtor’. The na ture of this undertaking was not the
subject of any debate and is not in dispute.
[36] The first sentence, the resp ondent contended, could not have been
intended simply as a recital, wh en the second clearly imposes an
obligation on ATB to make the buses available for inspection, and the third
can be read as imposing an obligati on on the respondent. It would be
strange, contended the re spondent, to include in one clause a recital of
background relating to the mainte nance agreement, as well as two
undertakings. The presence of the two undertakings was further indicative
of the conclusion that the first sentence also amounted to an undertaking.
[37] Counsel for the appellant conc eded that the second sentence does
embody an obligation. And it was no t disputed that the third sentence
likewise required the resp ondent to effect ‘other repairs’ to the buses –
presumably those not covered by the maintenance agreement.
29
[38] The clause is cert ainly not a model of clarity. The context, and a
reading of the three agreements together, suggest in my view that the first
sentence was probably intended to mean no more than that ATB had
undertaken the obligation to maintain the buses to Dusbus, and that it
would honour that undertaking. Its obligation to the respondent was not to
maintain the buses, but to comply with the contract with Dusbus. But
whatever the intention may have been, the language used is not
appropriate to a recital, and is different from the first three clauses which
are clearly recordals.
[39] If clause 4 imposed an undert aking on ATB to the respondent to
maintain the buses, and if Dusbus had not defaulted in the payment of
rentals, but ATB had failed to mainta in the buses, or done so in an
unacceptable fashion, could the respondent, rather than Dusbus, sue ATB
for performance or to remedy the defective performance? What would the
content of the obligation be? Is it simp ly an obligation to comply with the
contract with Dusbus? The respondent argues that in effe ct the ‘relevant
clauses’ of the maintenance agreement are incorporated in the agreement
between ATB and itself. The respondent would, on that basis, have been
entitled to claim performance in terms of the maintenance agreement
between ATB and Dusbus.
30
[40] In my view this is a very strai ned interpretation of the provision. It is
highly improbable that the parties, when reaching the agreement, intended
that the respondent, rather than Dusbus, could enforce ATB’s obligation to
Dusbus to maintain the buses. It is not necessary, however, to decide this
point. For even if the first sentenc e of clause 4 is construed as an
undertaking to the respondent, can it be said that the respondent’s
obligation to pay to the appellant the guaranteed amount is dependent on
the appellant’s having maintained the buses?
Are the obligations of the parties reciprocal?
[41] The court below, confirming the decis ion of the court of first instance
in this regard, held that the risk-shari ng contract between the parties was
such as to impose reciprocal obligations. Taking into account the wording
of clauses 1, 2 and 3 of the contract , the court concluded that the parties
had intended that ATB be indemnified only if it had fulfilled its obligations
to Dusbus under the maintenance agreement. It would not make
commercial sense, said the court, for Du sbus to enter into the lease if it
had no guarantee that the buses woul d be maintained. Thus, concluded
the court, because the obligations of the parties were reciprocal, failure to
perform in terms of clause 4 – that is , failure to maintain the buses in the
respects alleged – entitled the respondent to raise the exceptio non
31
adimpleti contractus.
[42] The general principles governin g the determination whether
obligations of parties to a contra ct are reciprocal, such that the exceptio
may be raised, have been set out most recently by this court in Grand
Mines (Pty) Ltd v Giddey NO 1999 (1) SA 960 (SCA), a case relied upon
extensively by both the courts bel ow, and by counsel for the appellant.
Smalberger JA, delivering the judgment of the majority of the court (Schutz
JA dissenting on the facts) stated (at 965E-I):
‘Where the common intention of parties to a contract is that there
should be a reciprocal performance of all or certain of their respective
obligations the exceptio operates as a defence for a defendant sued
on a contract by a plaintiff who ha s not performed, or tendered to
perform, such of his obligations as are reciprocal to the performance
sought from the defendant. Interdependence of obligations does not
necessarily make them reciprocal. The mere non-performance of an
obligation would not per se permit of the exceptio; it is only justified
where the obligation is reciprocal to the performance required from
the other party. The exceptio therefore presupposes the existence of
mutual obligations which are intended to be performed reciprocally,
the one being the intended exchange for the other . . . Furthermore,
32
for the exceptio to succeed the plaintiff’s performance must have
fallen due prior to or simultaneously with that demanded from the
defendant. . . . Whether or not obli gations in terms of a contract
satisfy these requirements and are reciprocal in the above sense . . .
is ultimately a matter of interpretation. Provided the requirements for
the exceptio are met, it may equally be invoked in a contract where
provision is made for periodic performance or performance in
instalments.’
(My emphasis.)
See also ESE Financial Services (Pty) Ltd v Cramer 1973 (2) SA 805 (C)
especially at 808G-9G and Motor Racing Enterprises (Pty) Ltd (in
liquidation) v NPS (Electronics) Ltd 1996 (4) SA 950 (A) at 961E-H.
[43] Thus while bilateral contra cts are generally presumed to embrace
reciprocal obligations, the parties may determi ne otherwise. In general,
contracts of sale, lease and service are reciprocal: the seller must deliver
the goods before the buyer pays the price; the lessor must provide vacant
possession of the goods or the premises before the lessee pays the rental;
and the builder or any ot her service-provider must do the work before
claiming payment. If there is no performance then nothing is payable. But
parties very often do change the us ual consequences of the contract.
Accordingly, even though there is a presumption that fully bilateral
33
contracts impose reciprocal obligations, in determining whether the
exceptio will avail a defendant one must c onstrue the contract itself in
order to determine the parties’ intent ion. And for the obligation to be
reciprocal in the strict sense ‘there must be such a relationship between
the obligation to be performed by the one party and that due by the other
party as to indicate that one wa s undertaken in exchange for the
performance of the other and, in cases where the obligations are not
consecutive vice versa . . .’ (per Corbett J in Ese Financial Services above
at 809D-E).
[44] The appellant contends that if it has an obligation to the respondent
to maintain the buses, imposed on it by the risk-sharing agreement, it is
not given in exchange for, and is not dependent on, the obligation to pay a
guaranteed amount on the repossession of the buses. The essence of the
contract is that the respondent agrees to bear a share of the risk
undertaken by the appellant in terms of the lease agreement with Dusbus.
It does so, argues the appellant, in return for the financial outlay made by
ATB in paying for the buses (as rec orded in clause 2 of the risk-sharing
agreement). That is reinforced by the statement in clause 1 that the
‘purpose of this agreement’ is to ‘record the shared risk to be borne by the
parties in relation to the lease agreement . . . in the event of any default’ by
Dusbus.
34
[45] Any obligation to maintain the buses imposed on it, the appellant
argues, is reciprocal only to the ob ligation imposed in clause 4 on the
respondent to effect ‘other repairs’. In Grand Mines above, which counsel
for the appellant submitted was particularly instructi ve in this case, this
court found that the obligations of the parties were not, in the strict sense,
reciprocal, and thus that performanc e from the one could be claimed
despite the failure to perform by the other. The obligations of one party,
Bercon Mining, were to mine coal from a site, and, because the mine was
opencast, to rehabilitate the site during the course of mining. The
obligation of the appellant was to pay a monthly sum to Bercon calculated
on the basis of what had been mined the previous month. Bercon had
fallen behind with its rehabilitation (no programme for rehabilitation had
been agreed) and was thus in breach of an obligation. When the liquidator
of Bercon sued for paym ent the appellant raised the exceptio. In
concluding that the obligations to pay and to rehabilitate were not
reciprocal, Smalberger JA said (at 966H-967E):
‘The effect of the agreement was that Grand Mines was obliged,
on the 25th of each month, and on presentation of an invoice, to pay,
at the stipulated rate, for all c oal mined, measured and delivered by
the 25th of the preceding month. Its obligation to pay was fixed both in
relation to a date and a formula, and the amount payable by it was
35
readily ascertainable. Payment due was calculated according to the
tonnage of coal delivered – the ex tent to which rehabilitation had
taken place did not enter into the equation in determining payment.
By contrast, rehabilitation was an ongoing process permitting of a
degree of flexibility and latitude, to be conducted in phases, with no
dates, schedules or any other specific criteria laid down for or
regulating its performance. The ci rcumstances of opencast mining
are such that, to the knowledge of the parties, rehabilitation of the
area in respect of which coal was removed or delivered, and payment
called for, could not always have preceded or occurred
simultaneously with the time fixed for payment. Furthermore, given
the nature and requirements of rehabi litation, practical difficulties
could be anticipated in attempting to establish from month-end to
month-end (as defined) whether rehabilitation was up to date. In
short, while there was an agreed formula correlating mining and
delivery of coal with payment, there was no corresponding formula
governing the relationship between rehabilitation and payment
suggesting that performance of the one was intended to be in return
for the other. Having regard to these considerations I am of the view
that the parties, notwithstanding the b ilateral nature of their contract
36
and the degree of interdependence between payment and
rehabilitation, could not have int ended that they would be reciprocal
obligations in the strict sense. This would be in keeping with what
would seem to have been the main purpose of the parties in entering
into the agreement, viz, the mining and delivery of coal for resale by
Grand Mines and payment to Bercon for the quantities of coal
delivered by it.’
[46] The appellant contends that the similarities in this case to Grand
Mines are significant. First, payment of the guaranteed amount is fixed in
relation to an event – the repossessi on of the buses for any reason. The
payment guaranteed was fixed by form ula set out in clause 6 of the
agreement. Second, the obligation of ATB to maintain the buses was
ongoing and to be performed over the period of the lease. Maintenance of
vehicles by its nature cannot take place simultaneously with payment of an
amount in the event of repossession. And it would be impracticable to
determine what maintenance was outstanding at the time of repossession.
What degree of failure, asks the appellant, would justify the refusal to pay
the guaranteed amount?
[47] The appellant relies also on Ese Financial Services (above) in which
37
it was held that the obligation to manage a share portfolio was not
reciprocal to the payment of an amount on the occurrence of a particular
event, the appreciation in value of the shares. This amount was in the
nature of a bonus and was payable in the event of ‘a planned objective
being achieved’: it was not, said the court (at 810E-G), payable as
consideration for the ‘satisfactory performance by the plaintiff of its duty of
management’. The satisfactory performance might have contributed to the
achievement of the objective, but th is was not necessarily the case.
Similarly, in this case, proper maintenance of the buses might have
precluded Dusbus’s default: but the obligation to maintain the buses could
hardly be said to have been given as consideration for payment of the
guaranteed amount.
[48] In Ese Financial Services (at 810G-H) Corbett J pointed out that the
appreciation of the investment might have been achieved despite the
‘supine inactivity’ of the plaintiff or because of its ‘perfect efficiency in
administration’. But, he continued (at 810H-811B):
‘Had the parties intended the payment of the bonus to depend, as a
precondition, not only upon the achiev ement of the required capital
appreciation but also upon the satisfactory performance by plaintiff of
its duty of management, then one would have expected the contract
to have reflected this in clear terms.’
38
One would have expected the risk-sharing agreement in this case likewise
to have spelled out in clear terms t hat, in the event of ATB failing to
maintain the buses, it would not be entitled to payment of the guaranteed
amount.
[49] A further argument adduced by the appellant is that the lease and
maintenance agreements between ATB and Dusbus both contain clauses
(set out above) requiring Dusbus to pay rental and charges without
deduction notwithstanding any failure in performance by ATB, and that
these clauses throw light on the intention of the parties to the risk-sharing
agreement. Reciprocity was expressly excluded in those contracts, it was
argued, and thus must be excluded in the risk-sharing agreement too. If
Dusbus is required to pay no matter what, why should the respondent be
in a different position?
[50] In my view, however, the risk -sharing agreement is completely
different in nature from the lease and maintenance agreements. There
were no regular payments to be m ade by any party. On ly one payment
was to be made, by the responden t, if and only if the buses were
repossessed. One cannot thus infer from the exclusion of reciprocity in the
contracts between ATB and Dusbus any intention that payment was to be
made despite the non-performance by ATB under the contract with the
39
respondent.
[51] The respondent conten ds that the reciprocity of the obligation to
maintain and the obligation to pay the guaranteed amount is to be found in
the fact that the contract is bilat eral: the respective obligations are
accordingly presumptively reciprocal. Re ciprocity is also to be found by
having regard to the commercial context. The purpose of the risk-sharing
contract was to spread the risk of the lease with Dusbus in the event of
default by Dusbus. It was fundamental to the arrangement that the buses
be properly maintained: if not, the risk would obviously be increased. That
was why the parties agreed expressly, in clause 4, that ATB maintain the
buses.
[52] This argument is flawed, in my view, for it assumes that the
materiality of an obligation renders it per se reciprocal. That is not so.
Obligations are reciprocal where the parties intend that the performance of
the one obligation be dependent on, an d given in exchange for, the
performance of the other obligation. That the obligations are important
does not make them dependent on nor given in exchange for their
respective performances.
40
[53] I also do not accept the co ntention that, because the reason – the
motive – for including the obligati on to maintain the buses in the
risk-sharing agreement was the wish to reduce the risk of default by
Dusbus, the obligation became reciprocal to the respondent’s obligation to
pay the guaranteed amount. The motive for including a term in a contract
cannot affect the meaning of the term or the ordinary consequences of the
contract. Put differently, the respondent might have assumed the risk only
because there was a maintenance agreement between ATB and Dusbus
in place. But it does not follow from that that the obligation to pay the
guaranteed amount was dependent on an ob ligation to a different party
(Dusbus) to maintain the buses.
[54] In my view, the respondent’s obligation to pay the guaranteed
amount was not dependent on ATB’s obligation to maintain the buses. The
respondent undertook to pay the guaranteed amount on repossession of
the buses on Dusbus’s default or ‘for any reas on’. The amount was
guaranteed, and was payable on the happening of an event. The
obligation to pay was absolute once the event occurred. ATB undertook to
maintain the buses in a separate and independent maintenance
agreement with another party – Dusbus. Maintenance was an ongoing
operation throughout the currency of the lease. It was required to be
41
performed irrespective of any obligati on of the respondent to ATB. The
obligations were accordingly not reciprocal in the sense required for the
successful invocation of the exceptio.
[55] The conclusion reached does not have the effect of leaving the
respondent without a remedy. P rovided that there was indeed an
obligation to the respondent imposed on ATB to maintain the buses, and if
it can prove damages as a result of the failure to maintain the buses in
terms of the maintenance agreement, then it will have a claim against the
appellant. Clause 10, referred to earlier, sets out the remedies available to
either party in the ev ent of breach of the contract. But the respondent
cannot escape payment by raising the appellant’s non-performance if any.
Accordingly, it is in my view unnecessary to determine whether there were
disputes of facts warranting a referral to evidence.
[57] I would uphold the appeal with co sts, and order the respondent to
pay the sum of R1 418 396.50; and interest on this sum at the rate of 15,5
per cent per annum from 7 July 2000 to date of payment.
C H L e w i s
42
Judge of Appeal