- April 27, 2023
- |Concise Law Reports (CLR), Contracts
The plaintiff issued a summons on 16 November 2018 against the defendant. The first claim was based on a contractual claim for damages resulting from a breach of contract, wherein the plaintiff alleged that the agreement was renewed as per clause 2 of the agreement on account of the defendant’s failure to notify it on or before 21 August 2016 of its intention to renew or not to renew – as a result, the plaintiff contended that the agreement renewed automatically for two years ending 21 November 2018. The plaintiff conceded that the second claim was not successfully proven as it ‘is not sustainable, not supported by contract’, thus, it abandoned the second claim. Therefore, the court dealt with the evidence of the first claim only. Similarly, the defendant withdrew claim two of its amended counter-claim with a tender of costs in respect thereof, thus evidence in rebuttal of this abandoned claim was equally not considered.
‘[86] In the current matter, the plaintiff disputed the wording of clause 2 of the contract in that it is their case that a sentence was added regarding an automatic renewal clause, to the wording of this section, and the effective term of the contract was changed from 36 months to 24 months. For these reasons, the counter-claim for rectification of the contract should also be considered.
[87] In doing so, the court must take into account the versions provided by the parties as to what happened during the meeting on 21 November 2014. Both the witnesses for the plaintiff and the defendant testified to this meeting but gave vastly different versions of the happenings.
[88] In this matter, the evidence demonstrates, that the two versions of the protagonists are mutually destructive. The approach is set out in National Employers’ General Insurance Co Ltd v Jagers as follows:
‘(The plaintiff) can only succeed if he satisfies the Court on a preponderance of probabilities that his version is true and accurate and therefore acceptable and that the other version advanced by the defendant is therefore false or mistaken and falls to be rejected. In deciding whether that evidence is true or not the Court will weigh up and test the plaintiff’s allegations against the general probabilities. The estimate of the credibility of a witness will therefore be inextricably bound up with a consideration of the probabilities of the case and, if the balance of probabilities favours the plaintiff, then the Court will accept his version as being probably true. If however the probabilities are evenly balanced in the sense that they do not favour the plaintiff’s case any more than they do the defendant’s, the plaintiff can only succeed if the Court nevertheless believes him and is satisfied that his evidence is true and that the defendant’s version is false.’
[89] In Burgers Equipment Spares Okahandja CC V Aloisius Nepolo t/a Double Power Technical Services the court stated that:
‘In Sakushesheka & Another v Minister of Home Affairs, Muller J referred with approval to the case of Stellenbosch Farmers’ Winery Group Ltd & Another v Martell et cie & Others, where the Supreme Court of Appeal of the Republic of South Africa stated that, where there are two irreconcilable versions in a civil matter, in order to come to a conclusion on the disputed issues, a court must make findings on a) the credibility of various factual witnesses; b) their reliability; and c) the probabilities.’
[90] In Stellenbosch Farmers’ Winery Group Ltd v Martell et cie, the court unpacks these findings and described each as follows:
‘To come to a conclusion on the disputed issues a court must make findings on (a) the credibility of the various factual witnesses; (b) their reliability; and (c) the probabilities. As to (a), the court’s finding on the credibility of a particular witness will depend on its impression of the veracity of the witness. That, in turn, will depend on a variety of subsidiary factors, not necessarily in order of importance, such as (i) the witness’ candour and demeanour in the witness box, (ii) his bias, latent and blatant, (iii) internal contradictions in his evidence, (iv) external contradictions with what was pleaded or put on his behalf, or with established fact or with his own extra curial statements or actions, (v) the probability or improbability of particular aspects of his version, (vi) the calibre and cogency of his performance compared to that of other witnesses testifying about the same incident or events. As to (b), a witness’ reliability will depend, apart from the factors mentioned under (a)(ii), (iv), and (v) above, on (i) the opportunities he had to experience or observe the event in question and (ii) the quality, integrity, and independence of his recall thereof. As to (c), this necessitates an analysis and evaluation of the probability or improbability of each party’s version on each of the disputed issues. In the light of its assessment of (a), (b) and (c) the court will then, as a final step, determine whether the party burdened with the onus of proof has succeeded in discharging it. The hard case, which will doubtless be the rare one, occurs when a court’s credibility findings compel it in one direction and its evaluation of the general probabilities in another. The more convincing the former, the less convincing will be the latter. But when all factors are equipoised probabilities prevail.’
[91] In order to succeed with its claim for rectification, the defendant must prove:
i. That the written agreement does not reflect the common intention of the parties;
ii. A mistake in the drafting of the agreement;
iii. The actual wording of the agreement as rectified.
Determination
[92] Using these guidelines, if one looks at the terms of the current agreement, one must conclude that the parties intended to include all modalities related to the implementation of the SAP modules in the contract, including the SAP licensing fees and the annual maintenance fee. Upon reading the contract and the instructions to bidders, this becomes clear. The contract further provided for the SMS gateway as part and parcel of the deliverable. It is further the case that in their replication the plaintiff indicates that claim one relates to annual licensing fees whilst the evidence of the first witness indicates that it relates to annual maintenance fees. This indeed was never clarified by the plaintiff. In interpreting the contract however, one must conclude that the intention of the contracting parties, together with the bidding instructions and the template provided for the completion of the tender must be interpreted that the contract indeed provided for the payment of SAP licensing fees and annual maintenance fees. This is further supported by the evidence of the plaintiff that they indeed paid these fees on behalf of the defendant.
The court, therefore, held the following:
a) As far as the second claim is concerned, the plaintiff claims that certain services and functions which the plaintiff had to render in terms of the agreement would be deferred until the plaintiff furnished the defendant with a quotation and the defendant agreed to the works and functions reflected on it. The plaintiff was required to provide registration and supply an SMS gateway software and the subsequent SAP integration and configuration of the gateway software and disaster recovery services. It is clear from the evidence that there were only quotations requested for these services and no instructions given for them to be performed. The quotations were also not from the plaintiff but from a different entity, which according to Mr Mushonga has nothing to do with the plaintiff but is a separate entity in the same group of companies.
b) The court finds that the witness Mr Mushonga made a poor impression on the court in that he contradicted himself and had a very one-sided recollection of the happenings related to the contract. He did not give direct answers and his general demeanour did not impress the court to find him a credible witness. The second witness called by the plaintiff, Mr Nghiwilepo was vague and clearly did not remember a lot about the meeting of 21 November 2014. His evidence regarding the happenings at the said meeting also leaves a lot of unanswered questions. On the other hand, Ms. Antindi made a good impression on the court. She answered questions directly and had a very good recollection of the meeting on 21 November 2014.
c) It was indeed not the intention of the defendant to sign the contract with the automatic renewal clause and only for 24 months, but that they intended to enter into a Service Level Agreement at the end of the implementation period which would have covered the services rendered by the plaintiff after implementation and not to have the contract automatically extended.
As a result, the counterclaim of the defendant for rectification succeeded. The claims for the plaintiff were both dismissed with costs, costs to include one instructed and one instructing counsel.