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[2014] ZAWCHC 185
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Airports Company of SA Ltd v BP Southern Africa (Pty) Ltd and Others (27626/13) [2014] ZAWCHC 185 (10 March 2014)
IN THE HIGH COURT OF SOUTH AFRICA
(GAUTENG LOCAL DIVISION,
JOHANNESBURG)
CASE NO: 27626/13
DATE: 10 MARCH 2014
In the matter between
AIRPORTS COMPANY OF SA
LTD
.....................................
Plaintiff
And
BP SOUTHERN AFRICA (PTY)
LTD
...........................
1st
Defendant
CHEVRON SA (PTY)
LTD
.........................................
2nd
Defendant
ENGEN PETROLEUM
LTD
.......................................
3rd
Defendant
EXEL PETROLEUM (PTY)
LTD
................................
4th
Defendant
SHELL SA MARKETING (PTY)
LTD
........................
5th Defendant
TOTAL SA (PTY)
LTD
...............................................
6th
Defendant
J U D G M E N T
C. J. CLAASSEN J:
[1] This is an exception to the
plaintiff’s particulars of claim. The exception is taken by
the first, third, fourth, fifth
and sixth defendants. I shall refer
to the excipients as the defendants for ease of reference.
[2] The respondent of course is the
plaintiff but I shall also refer to that party as the plaintiff.
[3] The plaintiff issued summons
against the defendants arising from a written contract concluded
between the parties. The plaintiff
relies on the provisions of the
contract and in fact attaches the entire contract as annexure to the
particulars of claim.
[4] In short, the plaintiff claims a
penalty of R15 million arising from what it alleges to be a shortfall
in the fuel supply by
the defendants at the Oliver Tambo
International Airport. It relies basically on two clauses namely
clause 15 dealing with minimum
volumes and clause 21 dealing with
force majeure.
[5] The relevant provisions of clause
15 state that the defendants are to maintain a minimum amount of
aviation fuel each day.
The minimum amount is described in the
clause as being three times the daily average and then states that if
it falls below two
days’ supply then a penalty threshold is
reached causing certain consequences.
[6] It is necessary to refer to the
particular clauses in some detail. Clause 15.3.3 of the contract
reads as follows:
“Without prejudice to any of
ACSA’ rights under this agreement and/or at law, should the
useable aviation fuels stored
at the bulk fuel site be less than two
times the daily average (as calculated in terms of 15.3.1.2) for
useable aviation fuels
at the airport (“the penalty
threshold”), then the managing participant shall forthwith give
written notice thereof
to ACSA and the participants shall (to the
extent that such shortfall in useable aviation fuels does not result
from any act of
force majeure as defined in 21) pay ACSA on demand an
amount of R5 million per day from the day that such useable aviation
fuels
are less than the penalty threshold for as long as the
participants fail to comply with 15.3.1.2. It is expressly recorded
that
any amount payable under this 15.3.2 constitutes the penalty and
that ACSA will, notwithstanding anything to the contrary in the
agreement be entitled to recover its direct damages only (and not its
indirect or consequential damages) in lieu of such penalty.”
[7] Clause 21 reads as follows:
“21.1 Subject to 20 and the terms
of this agreement, if any party is prevented from performing all or
any of its obligations
under this agreement as a result of an act of
God, fire, riot, warning (whether declared or not) embargos, export
control, its
national restrictions, shortage of transport facilities
not caused by such party, any oral or any international authority,
any
court order, any requirements of any governmental authority or
other competent authority, any theft, interruption of electrical
power or destruction of equipment due to any cause beyond the
reasonable control of such party or any other circumstances whatever
which are not within the reasonable control of such party
(collectively “acts of force majeure”) (but specifically
excluding any matters and/or occurrences referred to in 20.1 and 20.2
and the failure to obtain or renew any governmental approval,
consent, licence or the like), such party will be deemed to have been
released from such obligations (but only to the extent and
for so lon
g as it is so prevented from performing
such obligations). If any such act of force majeure continues for
more than 180 consecutive
days then either ACSA or the participant
concerned shall be entitled, by written notice to the other, to
forthwith terminate this
agreement as between them.
21.2 As soon as a party becomes aware
that an act of force majeure is likely to occur, it shall give notice
in writing to the other
parties estimating the approximate duration
of such act of force majeure. The estimate shall not be binding and
the party claiming
force majeure shall forthwith give written notice
to the other parties as soon as the act of force majeure ceases to
operate.
21.3 Notwithstanding anything to the
contrary contained herein, the party relying on an act of force
majeure shall use its best
endeavours to mitigate and remedy its non
performance due to such act of force majeure.”
[8] The plaintiff pleaded the contents
of clause 21 of the agreement in paragraphs 10.7, 10.8 and 10.9 of
the particulars of claim.
It then continues as follows:
“11. The managing participant
pursuant to the agreement notified the plaintiff on 15 November 2012
that Ortia was below the
penalty threshold of useable aviation fuels
as set out in the agreement.
12. The plaintiff identified the
specific days when the useable aviation fuels were below the penalty
threshold as being the three
days of 16, 17 and 18 November 2012.
13. The plaintiff demanded payment from
the defendants in the amount of R15 million calculated as R5 million
for each of 16, 17
and 18 November 2012 in penalties as contemplated
in the agreement.
14. The defendants’ claim that
the shortfall below the penalty threshold was reached as a result of
an alleged force majeure
which the plaintiff disputes.
15. Notwithstanding demand the
defendants have refused and/or failed to pay the aforesaid sum of R15
million or any portion thereof
to the plaintiff.”
[9] The exception is framed in the
following terms in the notice filed by the first, fourth, fifth and
sixth defendants, in paragraph
4 which reads as follows:
“4. The plaintiff does not allege
(a) the fulfilment of the aforesaid condition; (b) any other facts to
sustain the conclusions
that the shortfall in respect of any of the
three days in question arose under circumstances falling within the
reasonable control
of the defendants or (c) that clause 21 of the
agreement does not otherwise preclude its claims for a penalty under
clause 15.3.3.”
[10] In effect what the defendants are
saying is that the plaintiffs should have alleged a negative saying
or pleading that the
reasons for a shortfall did not fall within the
provisions of clause 21. In effect their interpretation of the
contract amounts
to the contents of clause 21 establishing a
precondition to the plaintiffs’ claim for the penalty.
[11] The plaintiffs however alleged
that a proper construction of the contract does not allow of clause
21 to be regarded as a precondition
but rather as a clause
establishing and exemption or an exception or a specific defence to
the liability of the defendants under
the contract. It alleges that
such proper construction would then perforce oblige the defendants to
plead the necessary facts
which would bring the defence within in the
four corners of the exemption contained in clause 3.2.1.
[12] I have some difficulty in agreeing
with the interpretation advanced by the defendants at this stage of
the proceedings i.e.
at the exception stage.
[13] It would seem to me that it is
possible to interpret clause 21 as read with clause 15.3.3 as
allowing a defence available to
the defendants explaining why there
was a shortfall. Simply looking at clause 21.3 of the contract it
would appear that an onus
is placed on the party relying on an act of
force majeure to use its best endeavours to mitigate and remedy its
non performance.
That sub clause forms part of clause 21.
[14] Before me, neither party argued
that the plaintiff is obliged to plead a negative by alleging that
the defendants did not use
their best endeavours to mitigate and
remedy the non performance. Such non performance seems to be common
cause on the pleadings.
[15] If that is so, I have difficulty
in understanding why clause 21.1 should be interpreted any
differently. It would seem to
me that the pleadings of the plaintiff
are sufficiently clear to enable the defendants to plead to the
allegations setting out
what force majeure or other causes prevented
them from maintaining the required levels of aviation fuel at the
airport.
[16] I am also of the view that it
could very well be that 21.1 can be regarded as a deeming clause,
supplying the defendants with
an excuse which if so construed would
oblige them to plead and prove the force majeure upon which they
rely.
[17] However I wish to stress the fact
that I do not wish to be understood as making a determinative
interpretation of this clause
at this stage. Suffice to say that the
different interpretations of the contract would preclude me from
upholding the exception
at this stage.
[18] It is trite law that different
interpretations of a contract may lead the court to refuse an
exception although that is not
a hard and fast rule. However I
cannot at this stage say that on any reasonable interpretation the
interpretation called for by
the defendants is the only possible
meaning of the contract. Once I have come to that conclusion, the
exception cannot succeed.
[19] For those reasons I am therefore
of the view that I should make the following order:
The exceptions of the first, third,
fourth and sixth defendants are dismissed with costs which include
the costs occasioned by the
employment of two counsel.
DATED THE 18th DAY OF June 2014
AT JOHANNESBURG
C. J. CLAASSEN J
JUDGE OF THE HIGH COURT
Hearing Date: 10 March 2014
Judgment given: 10 March 2014
Judgment edited and signed: 18 June
2014
Counsel for the 1st, 4th, 5th and
6th Defendants/Excipients: Adv M. Kriegler SC with Adv N. van der
Walt
Counsel for the 3rd
Defendant/Excipient: Adv J. C. Dickerson SC
Counsel for the Respondent: Adv N.
H. Maenetje SC with Adv J. A. Babamia