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REPUBLIC OF SOUTH AFRICA

OFFICE OF THE CHIEF JUSTICE

(GAUTENG DIVISION, PRETORIA)

 

CASE NO: 79910/2014

20/11/2017

 

(1)           NOT REPORTABLE.

(2)           NOT OF INTEREST TO OTHER JUDGES.

(3)           REVISED.

 

In the matter between:

 

CHRISTIAN ERASMUS.VILJOEN                                           Applicant

 

And

 

LOUW & HEYL ATTORNEYS                                                  Respondent

JUDGMENT

MOTEPE AJ:

[1]      The applicant lodged this application during October 2014 in which he sought an order for the respondent to repair "the outside of the dwelling, house and buildings situate at 15 Church Street, Florida, Johannesburg to a state of good order and repair, including roofs, walls and .outside doors of the premises, to the extent that they are objectively of an equivalent appearance and soundness to that of the other homes in the immediate environment, and so that they are suitable for the purposes of housing a medical practice of a general practitioner... "

[2]      It is common cause that when the application was lodged, the respondent was the owner and the landlord of the property in question and the applicant was the lease. It is further common cause that the respondent did effect some repairs after the lodging of this application. The applicant is unhappy with the said repairs and contest that they were done in the most superficial and unsatisfactory manner and that it is unacceptable to him.

[3]    In the light of this disagreement, both parties have now agreed that there is a genuine dispute of fact that cannot be resolved on paper. The applicant contend that this application should now be referred for oral evidence whereas the respondent contend in limine that I must dismiss the application on account of the application being moot. This contention is opposed by the applicant.

[4]     The basis of the respondent's contention that this application is moot is because it has sold the property in issue to the applicant. The respondent specifically bases its argument on clauses 11(b) and 17 of the written sale agreement. Clause 11 (b) of this agreement provides as follows:

"The Purchaser shall be deemed to be acquainted with the situation, boundaries, nature, condition, area and the surroundings of the property and the Seller are release (sic) from all responsibilities in respect thereof."

[5]     Clause 17 provides as follows:

“The parties hereby agree that the lease agreement shall be terminated on the day of signing of this deed of sale."

[6]     As a foresaid, the respondent contends that on the basis of the above quoted clauses, the sale agreement superseded the lease agreement with the results that the applicant, by agreeing to the cancellation of the lease agreement, unreservedly waived his rights flowing from the lease agreement. According to the respondent, it has been absolved from any and all obligations flowing from the lease agreement and consequently that this application has become moot.

[7]     The applicant disagrees. He mobilizes clause 15 of the written sale agreement in defense. This clause reads as follows:

"The purchaser reserves all his rights to proceed against the seller under case number 79910/2014 after day of registration hereof."

[8]     According to the applicant this clause indubitably records and expresses an intention by the parties to keep this application alive in spite of the conclusion of the written sale agreement. The respondent contends otherwise. This then becomes a matter of interpretation.

[9]     In Natal Joint Municipal Pension Fund v Endumeni Municipality,,[1]Wallis JA authoritatively decreed as follows with regard to the new approach in interpretation:

"[18] ...The present state of the law can be expressed as follows: Interpretation is the process of attributing meaning to the words used in a document, be it legislation, some other statutory instrument, or contract, having regard to the context provided by reading the particular provision or provisions in the light of the document as a whole and the circumstances attendant upon its coming into existence. Whatever the nature of the document, consideration must be given to the language used in the light of the ordinary rules of grammar and syntax; the context in which the provision appears; the apparent purpose to which it is directed and the material known to those responsible for its production. Where more than one meaning is possible each possibility must be weighed in the light of all these factors. The process is objective not subjective. A sensible meaning is to be preferred to one that leads to insensible or unbusinesslike results or undermines the apparent purpose of the document. Judges must be alert to, and guard against, the temptation to substitute what they regard as reasonable, sensible or businesslike for the words actually used. To do so in regard to a statute or statutory instrument is to cross the divide between interpretation and legislation. In a contractual context it is to make a contract for the parties other than the one they in fact made. The 'inevitable point of departure is the language of the provision itself', read in context and having regard to the purpose of the provision and the background to the preparation and production of the document.

 

[19]   All this is consistent with the 'emerging trend in statutory construction'. It clearly adopts as the proper approach to the interpretation of documents the second of the two possible approaches mentioned by Schreiner JA in Jaga v Donges NO and another, namely that from the outset one considers the context and the language together, with neither predominating over the other. This is the approach that courts in South Africa should now follow, without the need to cite authorities from an earlier era that are not necessarily consistent and frequently reflect an approach to interpretation that is no longer appropriate..."(own emphasis)

[10]   In Dexgroup (Pty) Ltd v Trustco Group International (Pty) Ltd and Others[2] the SCA restated the principles in Endumeni and emphasized that "context, the purpose of the provision under consideration and the background to the preparation and production of the document in question are not secondary matters introduced to resolve linguistic uncertainty but are fundamental to the process of interpretation from the outset."

[11]    The SCA in Bothma-Batho Transport (Edms) Bpk v S Bothma & Seun Transport (Edms) Bpk [3] had the following to say:

"Whilst the starting point remains the words of the document, which are the only relevant medium through which the parties have expressed their contractual intentions, the process of interpretation does not stop at a perceived literal meaning of those words, but considers them in the light of all relevant and admissible context, including the circumstances in which the document came into being. The former distinction between permissible background and surrounding circumstances, never very clear, has fallen away. Interpretation is no longer a process that occurs in stages but is essentially one unitary exercise..."

[12]   When the sale agreement was prepared and concluded, the parties were already engaged in this litigation. The applicant had already made it plain that he was unhappy with the renovations by the respondent. With this context, clause 15 was inserted, even recording the case number to leave the reader in doubt as to which case was being referenced.

[13]    In my view, taking into account the express wording of this clause and the context under which it was made, its purpose was clearly to preserve the applicant's the right to pursue this application in spite of the sale agreement. This clause could not have been any clearer in this regard. It is disingenuous of the respondent to argue to the contrary. I am consequently unable to agree with the respondent that the application is moot.

[14]    A further point raised by the counsel for the respondent was that the prayer sought by the applicant in prayer 1 of the notice of motion is incompetent. Counsel for the applicant disputed this. He argued most importantly that because of the genuine dispute of facts prevalent, I should rather refer the matter for trial and not decide this point since the applicant may decide to amend its prayer. I agree with this proposition.

[15]   The parties agree that there are genuine disputes of facts which are irresoluble on paper. They both agree that the matter should be referred for oral evidence if the respondent does not prevail in its points in limine. Counsel for the applicant invited me to refer the entire matter to trial in that event, with the notice of motion standing as simple summons and the answering affidavit as a notice of intention to defend. Counsel for the respondent did not suggest otherwise.

[16]   I was initially hesitant to refer the entire matter for trial. I intended to rather limiting the issues that should be referred for oral evidence. However, it is clear that the repairs complained off are wide-ranging and it will be impossible to limit the issues in the circumstances of this case[4]

[16]    I consequently make the following order:

1.  The points in limine raised by the respondent are dismissed;

2.  This matter is referred to trial in its entirety;

3.  The notice of motion shall stand as simple summons and the answering affidavit as a notice of intention to oppose;

4.  The respondent will deliver its declaration within 20 days of this order;

5.  The Uniform Rules dealing with further pleadings, discovery and the conduct of trials shall thereafter apply;

6.  The costs of this application shall be costs in the cause.

 

 

 

JA Motepe

Acting Judge of the High Court

 

 

Matter heard on:     16 August 2017

Judgment reserved on:   16 August 2017

 

Counsel for the applicant:           Adv B Geach SC

Attorneys for the applicant:         M Schoeman Attorneys, Pretoria

 

Counsel for the respondents:    Adv J H VD Lubbe

Attorneys for the respondents: Louw & Heyl Attorneys, Roodepoort

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