REPUBLIC OF SOUTH AFRICA
THE SUPREME COURT OF APPEAL
OF SOUTH AFRICA
REPORTABLE
Case number: 593/04
In the matter between:
CELL C (PTY) LIMITED Appellant
and
GERVAS MPANDLANA BHEKISISA ZULU Respondent
CORAM: MPATI DP, ZULMAN, NUGENT, JAFTA JJA and
MAYA AJA
HEARD: 11 NOVEMBER 2005
DELIVERED: 29 NOVEMBER 2005
Summary: Contract – interim agreement – parties performing obligations before written
document intended to regulate their relationship fully executed – cancellation
of – reasonable notice to be given in absence of agreement as to how to be
effected.
____________________________________________________________
JUDGMENT
____________________________________________________________
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MPATI DP:
[1] On 14 January 2004 and pursuant to a written application and
subsequent payment by the respondent of an agreed sum, the appellant, a
cellular phone service provider, delivered to the respondent a community
service container (the container) with telephones and other equipment. The
appellant provided a cellular phone signal (the signal) to the container, which
enabled the respondent to make available to the public a telecommunication
service at a fee. Delivery of the container and the provision of the signal took
place before signature, by an authorised representative of the appellant, of a
written document which was to regulate the contract between the parties. For
reasons that will become apparent later in this judgment, the appellant
deactivated the telephones in the container on 3 February 2004 by terminating
the signal. This appeal concerns the questions (as formulated by counsel in
their heads of argument):
(1) whether an enforceable agreement was concluded between the parties
and, if so, whether the appellant had lawfully cancelled it; and (2) whether
termination of the cellular phone signal to the container constituted an act of
spoliation.
[2] On 5 February 2004 the respondent applied for, and obtained, from the
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Natal Provincial Division, a rule nisi in terms of which the appellant was
ordered, inter alia, ‘to restore the telecommunication line’ to the container. In
addition, the appellant was interdicted from ‘unlawfully terminating and/or
suspending’ such service. The appellant, in turn, ‘instituted’ motion
proceedings against the respondent, seeking an order discharging the rule
and, inter alia, directing the respondent ‘forthwith to return to the [appellant],
against repayment of the amounts paid by the [respondent] (reduced to the
extent of the use of airtime), the container, telephones and all other equipment
supplied to the [respondent] by the [appellant]’. On 7 May 2004 the matter
was adjourned for the hearing of oral evi dence and determination of certain
specific issues.
[3] Subsequently, however, the partie s agreed that the issues between
them be determined on the following set of agreed facts:
‘. . .
10. On the 19 th of September 2003 the Applicant made application to the Respondent
for a community service facility.
11. The application was received by Jabu Mary Sekete.
12. At the relevant time Sekete was em ployed by the Respondent as a regional sales
and training coordinator.
13. The application was signed respectively by the Applicant and Sekete and consisted
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of annexure “H” to the application papers.
14. At the time when annexure “H” was delivered to Sekete, the Applicant also delivered
to her a site consent form in terms of annexure “I” to the application papers, which
bears the signatures of Sekete, the Applicant and Counsellor Ndlovu.
15. Sekete was not authorised to conclude t he agreement (in terms of annexure “B”) or
any other agreement and could only provisionally approve any application, subject to
it being approved or rejected by Allen Maphumulo and reduced to writing and signed
in terms of the agreement (annexure “B”).
16. Only Jose da Santos and Allen Maphum ulo were authorised to represent the
Respondent in the conclusion of any agr eement concluded in respect to a
community service facility rendered by the Applicant prior to the suspension of those
services.
17. The Respondent does not c onclude agreements in terms of which such services are
rendered by Service Providers such as those in casu, except in the terms contained
in the agreement (annexure “B”).
18. Pursuant to receipt of the application and the site consent (annexures “H” and “I”),
the Applicant paid the following amounts to the Respondent:
(a) On the 28 th October 2003, R28 400-00;
(b) On the 5 th November 2004, R100-00;
19. On the 13 th of January 2004 Sekete provided t he Applicant with a copy of the
agreement and invited him to sign the agreement and to return it to the Respondent.
20. The Applicant undertook to consider the contents following consultation with his
attorney and, thereafter, to sign the agreement and return it to the Respondent, if he
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was satisfied with the contents and the advice given by his attorney.
21. The agreement was thereafter signed by the Applicant but not returned to the
Respondent, but tendered in the Applicant’s Founding Affidavit, which tender was
refused (In the circumstances neither Maphumulo or Dos Santos signed the
agreement).
22. On the 14 th of January 2004 a container with telephones and equipment arrived for
delivery to the Applicant.
23. On that day there was a di spute between the parties as to the site identified by the
Applicant and provisionally approved by Sekete, on the basis that:
(a) The Applicant claimed that he was ent itled to have the container delivered to
2526 Sinkwazi Road, Imbali;
(b) Sekete claimed that the container had to be delivered at or near Zizamele
Tuckshop (about 2km away).
24. By way of compromise the parties agr eed for the container, in the interim, to
be delivered to the Applicant’s place of residence (at another location,
altogether).
(After delivery the respondent activat ed the telephone lines and the applicant
commenced trading.)
25. On the 26 th of January 2004, the Applicant gave notice to the Respondent of
his intention to move the container to 2526 Sinkwazi Road, Imbali, in terms of
annexure “C” to “D” to the application papers.
26. The Respondent did not respond thereto.
27. On the 3 rd of February 2004 the Applicant moved the container to 2526
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Sinkwazi Road, Imbali.
28. On the 3 rd of February 2004 the Respondent, without notice to the Applicant,
deactivated the Applicant’s cellular lines, by a computer instruction
implemented at the Re spondent’s head office in Johannesburg, which
resulted in the Applicant and his cust omers becoming unable to receive or
make any calls from the cellular phones installed in the container delivered to
him.
. . .
38. The Respondent concedes, in the event of this Honourable Court finding that
the agreement (in terms of annexure “B”) had been concluded, or if the
Applicant acquired rights to operate the telephone services, that it was not
entitled, on the 3 rd of February 2004, to deactivate the cellular telephone
lines.
. . . .’
Part ‘C’ of the application (annexure “H”) is headed: PROPOSED SITE
INFORMATION, and the site address where the telecommunication service
was to be conducted is reflected as 2526 Sinkwazi Road, suburb of Imbali in
Pietermaritzburg. Annexure “I” is a consent form on which is appended the
signature of the ward councillor for the area where the proposed site is
situated, which signifies that the respondent had obtained permission to
operate the service from the proposed site. The address of the site reflected
on annexure “I” is the same as that in part ‘C’ of annexure “H”. The ward
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councillor’s official stamp also appears next to his signature.
[4] With this factual background the parties invited the court a quo
(Msimang J) to determine the following issues:
‘(a) Whether the parties concluded a written agreement in terms of annexure “B” to the
applicant’s founding affidavit, referred to herein as “the agreement”;
(b) whether the suspension/termination of the telephone services provided to the
applicant, on the 3rd of February 2004, amounted to:
(i) an act of spoliation;
(ii) a breach of the Respondent’s ob ligations in terms of the agreement;
(c) Whether, if the agreement had been concluded, such agreement had been duly
cancelled by the Respondent in terms of the notification contained in paragraph 96
of the affidavit by Sekete;
(d) Whether, in any event, apart from the written agreement the Applicant acquired from
the Respondent any rights to operate a Cell C community service facility from 2526
Sinkwazi Road, Imbali and, if so, the nature of such rights.’
[5] Msimang J answered (a) in the negative and (b)(i) and (d) in the
affirmative. In view of those findings, the learned judge held that ‘the issues
under (b)(ii) and (c) would fall away’. As to (d) he found that the respondent’s
right to operate a Cell C community service facility ‘flowed from the
subsequent contract which was binding between the parties’.
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[6] The learned Judge accordingly confirmed the rule and dismissed the
appellant’s counter-application with costs. This appeal is with his leave.
[7] Although it was common cause in this court that when the container was
delivered to the respondent an interim agreement was entered into between
the parties, counsel for the appellant submitted that such agreement was
lawfully cancelled, ie the appellant was entitled to terminate the signal.
Counsel’s submission is inconsistent with the concession made by the
appellant in paragraph 38 of the stated case, but due to the stance he took in
this court, it is now necessary to consider the question. Counsel, however,
disavowed any reliance on paragraph 96 of the affidavit of Sekete, in which it
is stated that to the extent that the respondent’s application for a site had
been approved in circumstances which might constitute an agreement, the
appellant ‘has elected to cancel that agreement’.
[8] One of the contentions advanced by counsel was that having found that
an agreement outside of the written document had been concluded, Msimang
J should then have defined the terms of such agreement. That he did not do.
[9] That an interim agreement was concluded between the parties is
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established by an inference to be drawn from the conduct of the parties
(Golden Fried Chicken (Pty) Ltd v Sirad Fast Foods CC 2002 (1) SA 822
(SCA) 825 para 4), viz payment by the respondent of the contract price, the
subsequent delivery of the container and equipment, the provision of the
cellular phone signal which enabled the respondent to commence business,
and the compromise reached with regard to the location of the container, all
before the written agreement came into effect. As to the compromise referred
to, clearly the agreement was that the respondent would operate his business
from his place of residence until the dispute pertaining to the site had been
settled. In this regard, counsel for the appellant contended that once the
respondent moved the container from the place agreed to by compromise, the
appellant was entitled to terminate or cancel the contract and to cut off the
signal. This, counsel argued, was because the respondent had no right to
receive a signal at any place other than the one agreed to by compromise,
namely at his place of residence.
[10] There is in my view no sound basis for counsel’s submission. There is
no indication whatsoever in the stated case that it was a condition of the
interim agreement that the respondent was not to move the container from his
place of residence. Nor can such a condition be inferred from any other facts
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or from the conduct of the parties that preceded the conclusion of the interim
agreement. The question then is: how was cancellation of the contract to be
effected?
[11] Counsel accepted that there is no evidence as to how the interim
agreement could be cancelled by either party. In the absence of such a term
a reasonable notice of cancellation has to be given (cf Putco Ltd v TV & Radio
Guarantee Co (Pty) Ltd 1985 (4) SA 809 (A) 827I-828B; Golden Fried
Chicken, supra, at 825 para 5). It is not necessary to consider what period
would have constituted reasonable notice in this case. Counsel conceded
that no notice was in any event given. It follows that the appellant was not
entitled to terminate the signal at the time that it did.
[12] Counsel agreed that a finding against the appellant on the first issue
renders consideration of the second issue (of spoliation) unnecessary.
[13] The appeal is dismissed with costs.
L MPATI DP
Concur:
ZULMAN JA
NUGENT JA
JAFTA JA
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MAYA AJA