REPUBLIC OF SOUTH AFRICA
          
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG LOCAL DIVISION, JOHANNESBURG

                                                                                CASE NO:

(1)	REPORTABLE: NO
(2)	OF INTEREST TO OTHER JUDGES: NO
(3)	REVISED. 

          26 MARCH 2018		………………………...
                   DATE			        MODIBA J

  32185/2017

In the matter between:

DYNAMIC OFFICE TECHNOLOGIES (PTY) LIMITED
t/a DO TECH								            Applicant

and

KNOWLEDGE NETWORK (PTY) LIMITED			       Respondent
______________________________________________________________ 

J U D G M E N T

MODIBA J:

[1] 	The applicant seeks judgment in the amount of R397 187.20 for goods sold and delivered.

[2] 	The basis for the applicant’s claim is a written agreement of sale entered into with the respondent in July 2017 in terms of which the applicant sold to the respondent 64 Samsung Galaxy Tablets (“the goods”) and on 31 July 2017, delivered them to Bojelong Primary School (“the school’) in terms of the said agreement. Payment was due in 5-7 working days, later extended to a maximum of 14 days from date of delivery of the goods. The applicant would retain ownership of the goods until payment is made. On 3 August 2017, the applicant delivered a tax invoice to the respondent in the amount claimed. The invoice has an annotation that should legal costs be incurred to collect payment, the respondent shall be liable for such costs on a scale as between attorney and client. The respondent remains in default of payment despite demand.

[3] 	The respondent is opposing the application. It alleges that motion proceedings are inappropriate in this case because of the presence of a foreseeable dispute of fact which is incapable of resolution on the papers. It contends that the application ought to be dismissed with costs for this reason alone. The dispute, it further contends arises from the fact that in terms of the agreement between the parties, payment would only be due to the applicant after the respondent receives payment from the Department of Education (“the Department”). The applicant denies that such a term exists or that a variation of the terms of the agreement between the parties to that effect was ever agreed upon.

[4] 	The principles applicable to the determination of the relevant facts when final relief is sought on motion were set out in Plascon Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd where the court applied Stellenbosch Farmers’ Winery Ltd (Pty) Ltd and held as follows:
‘… Where there is a dispute as to the facts a final interdict should only be granted in notice of motion proceedings if the facts as stated by the respondent together with the admitted facts in the applicant’s affidavits justify such an order… Where it is clear that facts though not formally admitted cannot be denied they must be regarded as admitted.’

[5]	Our courts are required to robustly approach disputes of fact.  In Soffiantini v Mould, the court outlined this approach and stated as follows:
“In the case of Room Hire Co (Pty) Ltd v Jeppe Street Mansions (Pty) Ltd Murray, then AJP, said:

‘A bare denial of the applicant’s material averments cannot be regarded as sufficient to defeat applicant’s right to secure relief by motion proceedings in appropriate cases. Enough must be stated by respondent to enable the Court to conduct a preliminary examination… and to ascertain whether denials are not fictitious intended merely to delay the hearing.’

[6]	The respondent denies it is indebted to the applicant in the amount claimed. It also denies liability for legal costs as claimed by the applicant. It pleads that it is rather the Department which is indebted to the applicant. The respondent was a mere go-between the two. It (the respondent), did not accept liability for the department’s indebtedness to the applicant. Further, the respondent did not derive any benefit from the transaction. It contends that payment is only due after it has received payment for the goods from the department. The applicant pleads that only the variation to the extent expressed in the following WhatsApp message exchanged between the deponents to the parties affidavits who are central players in the transaction was agreed upon:
“Hello – message received from our project head – our paperwork is good – purchase order should be released next week – check stock, reserve stock – payment process is – purchase order, invoice, signed delivery note, payment to company on the invoice between 7 and 14 days.” 

[7]	Natal Joint Municipal Pension Fund v Endumeni Municipality, the Supreme Court of Appeal articulated the approach to the interpretation of text 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 businesslike 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 reasonably 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 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.’

[8]	When regard is hard to the language used in the WhatsApp message, it introduces the following changes to the written terms: delivery is to precede payment. Payment period is 7 to 14 days after delivery of the goods. The change contended for by the respondent, that it would only pay the applicant after receiving payment from the department is not expressed in text. Counsel for the respondent contended that the variation was verbal. He further contended that oral evidence would allow cross examination of the parties to establish the content of telephonic discussions which are reflected in the WhatsApp transcript attached to the applicant’s replying affidavit. He further contended that the nature of the contract and engagement between the parties was such that a verbal variation was allowed by the context and that it did take place. The applicant denies that such a verbal variation was concluded. On the authorities cited above, these submissions hardly support the contention that a dispute of fact on the papers.  

[9]	There is a vague attempt at raising such a dispute in the answering affidavit. The answering affidavit makes no reference to a verbal variation of the contract. It is also silent as to the format the variation took, for example, whether the parties who allegedly agreed to it did so telephonically or in a contact meeting. The answering affidavit is also silent on who represented the respective parties, and when was the variation agreed to. It is for that reason the respondent’s contention fails to meet the test in Room Hire Co.

[10]	On the respondent’s version that it never accepted the department’s liability to the plaintiff, the purported variation would not have been necessary if the respondent’s version was probable. The term contended to have been varied would probably have been in the original agreement. 

[11]	The WhatsApp message quoted above clearly states that the department would make payment to the party on the invoice, being the respondent. The party named on the invoice is the respondent, not the applicant. Contrary to what the respondent states in its answering affidavit that it was a merely go-between between the department and the applicant, there is a plethora of documentary evidence that the respondent and not the applicant is party to the contract with the department. It is the respondent who solicited goods from the applicant for supply to the department. That the respondent invoiced the department and that the latter would pay directly to it is further indicative of the structure of the relationship between the parties. Save for delivering the goods to the school and attempting to retrieve them from there are the only dealings the applicant had with the department. The applicant had no other dealings with the department. Its dealings with the school were limited to delivery of the goods and attempts to retrieve them.  

[12]	Whereas, initially the applicant would release the goods on receipt of payment in terms of the written agreement between the applicant and the respondent on the one hand and the respondent and the department on the other, the WhatsApp message communicates a different process – delivery prior to payment. This is another term the parties varied. Therefore the contention from the bar by counsel for the respondent, that the applicant cannot hold the respondent liable for the consequences that flowed from its departure from its own terms when it delivered the goods to the school prior to receiving payment is also not supported by averments in the answering affidavit.
 
[13]	The respondent also relies on the fact that because ownership of the goods remained vested in the applicant; it is for the applicant to retrieve the goods from the department.  It is common cause that the applicant attempted to retrieve the goods from the department without success and then resorted to this claim. Although the applicant retains ownership of the goods until paid for, it is not precluded from enforcing the agreement as it does in this application. 

[14] 	I find that a dispute of fact unresolvable on the papers does not exist. The respondent lacks a meritorious defence to the applicant’s claim. I am satisfied that the applicant has made out a case for the relief claimed.

[15] 	I therefore make the following order:

ORDER
1.	The respondent is ordered to pay the applicant:
1.1		the sum of R397 187.20;
1.2	interest on the sum of R397 187.20 at the rate of 10.25% per annum a tempore morae;
 1.3	costs of suit on the attorney and client scale.

				________________________________________
						     MADAM JUSTICE L T MODIBA
					   JUDGE OF THE HIGH COURT
				GAUTENG LOCAL DIVISION, JOHANNESBURG

APPEARANCES
For the applicant: 				L Mtukushe
Instructed by: 				Kampel Kaufmann Attorneys
For the respondent: 			H van Beek
Instructed by: 				DM Kisch Inc t/a Kisch IP
Date heard: 					13 March 2018
Date judgment delivered: 			26 March 2018