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[2005] ZASCA 17
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Seven Eleven Corporation of SA (Pty) Ltd v Cancun Trading No 150 CC (108/2004) [2005] ZASCA 17; [2005] 2 All SA 256 (SCA); 2005 (5) SA 186 (SCA) (24 March 2005)
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Last Updated: 8 June 2005
THE SUPREME COURT OF APPEAL
OF SOUTH AFRICA
CASE NO:
108/2004
Reportable
In the matter between
SEVEN ELEVEN CORPORATION OF SA (PTY)
LTD Appellant
AND
CANCUN TRADING NO 150
CC Respondent
Coram: Mpati DP, Farlam, Lewis, Heher, Ponnan JJA
Heard: 21 February
2005
Delivered:
Summary: On a proper construction of a
franchise agreement in respect of a Seven Eleven convenience store, the
franchisee is not entitled
to the benefit of rebates or early settlement
discounts received by the franchisor from suppliers of goods: appeal against
the decision
to allow the benefit of rebates to a franchisee upheld and
cross-appeal against decision not to allow benefits of early settlement
discounts to a franchisee refused.
JUDGMENT
LEWIS JA
Introduction
[1] The dispute between the parties in this appeal
turns on a franchise agreement. The appellant is a company that has operated
‘convenience’
stores, known as ‘Seven Eleven’ stores,
primarily in the Western Cape, for many years. Most of the stores are operated
by franchisees to whom the appellant has sold the business of a store and has
given the right to manage the store subject to the
franchise agreement in issue.
The respondent is a close corporation, the sole member of which is Mr Herman
Fouché.
[2] In July 1999 the respondent, represented by
Fouché, purchased a store in Parow from the appellant and entered into a
franchise
agreement in respect of it. Some years later, the respondent sold the
store back to the appellant and purchased another, bigger,
store in Table View,
entering into a new, and different, franchise agreement with the appellant. The
respondent remains the franchisee
in respect of the Table View
store.
[3] The dispute relates to various discounts that the respondent
claims should have been passed on to it by the appellant over the
period when he
operated the store in Parow. In the court below (the Cape High Court) the
respondent claimed the sum of R353 396.08,
plus interest, representing such
discounts, on four different, alternative, grounds. The court (per Mitchell AJ)
found for the respondent
on one basis, but, in terms of an agreement between the
parties, referred the determination of the quantum payable to the respondent
to
a referee in terms of s 19bis of the Supreme Court Act 59 of 1959. The
appellant appeals against the finding of liability, and the respondent cross
appeals against
the finding that one particular class of discount (‘early
settlement discounts’) should not have been afforded to the
respondent.
The background to the contract in dispute
[4] The
background to the conclusion of the sale and franchise contracts is briefly
this. Early in 1999 Fouché was about to
retire from public service and
considered starting a business of his own, in particular to give employment to
his son who is disabled.
He consulted various documents available about
franchise operations and investigated, amongst others, the franchise business
run
by the appellant. He contacted the public relations officer of the
appellant, Ms Geraldine McConnagh, and met her to discuss the
possibility of
becoming a franchisee with the appellant. She described the business operation
of the appellant to Fouché.
At a subsequent meeting, having concluded
that Fouché was seriously interested in becoming a franchisee, she gave
him what
was termed a ‘disclosure document’.
[5] The
disclosure document is important to the respondent’s action. It tells the
prospective franchisee that it is not a contract,
and cannot be relied upon to
determine all the terms of the contract. It also advises that the contract
itself should be carefully
considered and referred to an attorney for advice. It
describes, inter alia, the history of the appellant and of Mr George Hadjidakis,
the managing director and founder of the appellant. It also gives details of the
staff members responsible for different spheres
of the operation; of the
benefits of the franchise system (one being that maximum discounts are passed on
to the franchisee, and
which forms a significant element of the dispute to which
I shall return); the training given to franchisees; the financial arrangements
and requirements; trademark registrations; and the respective obligations of the
parties. In short, it tells a prospective franchisee
how the system operates.
Fouché received the document on 31 May 1999 and at about that date also
discussed the possibility
of buying a store and becoming a franchisee with
Hadjidakis directly.
[6] Fouché, as advised, studied the document
carefully, highlighting passages he regarded as important, as he did the
franchise
agreement. He met with Hadjidakis subsequently, and eventually made an
offer to purchase the store in Parow, which took the form
of the standard
contract then used by the appellant. Fouché’s impression created,
he said, by discussions with Hadjidakis,
and by the disclosure document, was
that he was entitled to all the benefits obtained by the appellant as a result
of bulk purchasing.
At the time of entering into the contract, however, he did
not know of any benefits other than ordinary trade discounts and what
Hadjidakis
had referred to as ‘kickbacks’.
[7] At one of the discussions
about becoming a franchisee, Hadjidakis had mentioned to Fouché that
there were a number of franchisees
who were dissatisfied with the business
because they believed they were not getting all the benefits to which they were
entitled.
Indeed there had been press coverage about the dissatisfaction before
Fouché entered into discussions with representatives
of the appellant.
And Fouché was invited to attend a meeting between the appellant and
franchisees at which the dissatisfaction
about not getting the benefit of
rebates and early settlement discounts was expressed. He did not attend the
meeting himself –
but members of his family did. Aware of such
dissatisfaction on the part of franchisees, Fouché nonetheless, on behalf
of
the respondent, entered into the contract of sale and the franchise contract
with the appellant.
[8] The disclosure document, in dealing with the
advantages of being a Seven Eleven franchisee, states that one of the benefits
of
the franchise system of the appellant was that ‘maximum
discounts’ would be passed on to franchisees. Trade discounts
were indeed
passed on to the respondent. Fouché subsequently discovered, however,
that the appellant received other reductions
in the prices payable to suppliers
of the goods sold in the store: what were termed ‘early settlement
discounts’, which
the court below decided were not payable to the
respondent, and certain rebates given to the appellant by suppliers, which the
court
held should have been passed on to the respondent. It is the
respondent’s entitlement to rebates that forms the subject of
the appeal,
and the entitlement to settlement discounts that forms the subject of the cross
appeal.
[9] Fouché did not succeed in running the store in Parow
at a profit. He testified that although he and his family worked long
and hard
the respondent was in financial difficulty. And so, he said,
despite not
getting the benefit of the discounts to which he thought the respondent was
entitled, Fouché approached Hadjidakis
to discuss the problems that he
was encountering in running the Parow store. Hadjidakis advised him to take on a
second franchise
or to buy a bigger store with a bigger turnover. Fouché
opted for the second route.
[10] In August 2001 the respondent sold the
Parow store back to the appellant, and bought a new business in Tableview. He
also entered
into a new franchise agreement. It is significant that the terms of
the franchise agreement are different: in particular, it states
that ‘the
franchisor shall in its sole and absolute discretion afford the franchisee the
benefit of trade discounts received
by it as a result of bulk purchases for
goods and merchandise purchased on the franchisee’s behalf’. The
action against
the appellant relates, however, to the first franchise agreement,
which makes no mention of any kind of discount at all.
The sale and
franchise contracts and the alternative grounds for the
claim
[11] The sale agreement between the parties is not in
contention, although it is relevant to the business scheme governing the
relationship
between the parties. The respondent purchased the business of the
store in Parow, including goodwill, fixtures, fittings, furniture,
appliances
and stock – a fully stocked convenience store. The purchase price of the
store was payable over a period of three
years and is discussed more fully
below.
[12] The franchise agreement that regulates the relationship
between the parties is central to the action. It is silent on the question
of
discounts to which the respondent might have been entitled. The respondent
claimed the discounts to which it considered it was
entitled on four alternative
grounds. The first was that it was entitled, on an interpretation of the
franchise agreement, to receive
the benefit of any discounts
‘negotiated’ with suppliers (wholesalers). The second ground was
that as a result of ‘quasi
mutual assent’ the contract provided that
the appellant would pass on to the respondent any discounts so negotiated.
Thirdly,
that there is a tacit or implied term to the effect that any discounts
would be passed on to the respondent; or, in the fourth place,
that Hadjidakis,
the managing director of the appellant, had falsely misrepresented to
Fouché that discounts negotiated with
suppliers would be passed on to the
respondent. Before turning to each ground I shall deal with the structure of the
business strategy
put in place by the appellant, to which effect was given by
the franchise agreements between the appellant and its
franchisees.
The appellant’s business strategy
[13] The
way in which the appellant operates is to a large extent explained in the
franchise agreement itself and the disclosure document,
and emerges also from
the evidence of Hadjidakis and Mr Russell Cameron, the chief buyer for the
appellant.
[14] On conclusion of a franchise agreement the franchisee is
placed in control of a fully stocked Seven Eleven convenience store.
That stock
is paid for by the appellant, and the franchisee is given a period of three
years in which to pay for it, no interest
being charged. The franchisee is
obliged to pay 75 per cent of its weekly turnover to the appellant in the week
following the purchase
of stock. (In the respondent’s case this was
amended to the sum of the total purchase prices plus R1 000 a
week.)
[15] The franchisee undertakes to make purchases for the store
only from the appellant or from its nominated suppliers. Crucially,
the
appellant pays all suppliers itself, although the franchisee receives an invoice
from suppliers on delivery. The suppliers then,
at the end of each month, send a
consolidated statement reflecting the supplies to each franchisee to the
appellant. A specially
designed computer programme enables the franchisee to
inform the appellant of its purchases from each supplier: if the
supplier’s
statement tallies with that of the franchisees, the appellant
pays the supplier.
[16] The goods stocked by the franchisees, in
accordance with the franchise agreements, are limited. As indicated, the
franchisees
may purchase only from approved suppliers, and in respect of certain
items, such as meat and bakery products, the appellant is itself
the
supplier.
[17] All negotiations, especially as to prices and discounts,
for the purchase of goods stocked in the Seven Eleven stores are done
by the
appellant directly with the suppliers. And the franchisees play no role in the
payment arrangements between the appellant
and the suppliers.
[18] The
business model on which the appellant relied entailed that the franchisees mark
up the price of goods sold by an average
of 39 per cent. Projections on yearly
turnover in any store would, provided the store was run in accordance with the
principles laid
down by the appellant, yield an annual gross profit of 10 per
cent. The projections in respect of the Parow store first acquired
by the
respondent were made available to Fouché before the contract was
concluded. These make no provision for settlement
discounts or rebates.
However, on certain invoices actually received by the respondent the supplier
did indicate the extent of a
rebate.
The claim based upon the
interpretation of the franchise agreement
[19] The court below found
that on an interpretation of the franchise agreement, having regard to the
disclosure document as a background
circumstance, the respondent had been
entitled to the benefit of rebates that the appellant received from suppliers.
As previously
stated, no mention is made in the agreement of the right of the
respondent to benefit from any discount afforded the appellant. Indeed
the word
‘discount’ appears nowhere in the agreement. The respondent argued,
however, that such right could be found
by having regard to the background
circumstances of the contract. The court below found that a section in the
preamble to the contract
could not be given meaning without reference to
background circumstances. Such meaning was found by the court in the disclosure
document.
The respondent relied also on clauses
14.1 and 14.2 of the
contract to bear out the meaning for which it contended. Clause 14 deals with
the goods that may be sold by the
franchisee. Clause 14.1 reads:
‘In
order to ensure uniformity in specification compliance and control, the Licensee
[franchisee] agrees to handle, promote
and/or sell only those items approved by
the Licensor [franchisor] purchased only from the licensor and/or such
wholesalers and/or
suppliers as are approved and/or nominated by the
Licensor.’
Clause 14.2 provides:
‘The Licensee shall consult
with the Licensor in regard to pricing policies recommended by the licensor in
relation to the products
and will adhere to any recommended prices stipulated by
the Licensor.’
It is immediately apparent that these clauses have no
bearing at all on the question whether the respondent was entitled to discounts
on the goods that it purchased for sale in the store.
[20] The court
below did, however, consider that words in the preamble to the contract were
unclear and thus subject to interpretation.
The preamble records the background
to the agreement and certain facts about the appellant’s franchising
operation. It does
not impose obligations on either party, as counsel for the
respondent conceded in argument before this court. The clause relied upon
reads
as follows, the words emphasised being those the court considered
uncertain:
‘(c) The licensor is engaged in providing entities and
individuals with a unique and successful business support system,
hereinafter referred to as the system including information and analysis of
researches in regard to equipping, planning, financing,
furnishing and
establishing SEVEN ELEVEN Convenience Stores, wholesale purchasing and retail
marketing of stock in trade, management
expertise, knowledge and information and
unique design and set up of each SEVEN ELEVEN Convenience Store, inventories and
control
systems, colour schemes and individually designed patterns of layout of
SEVEN ELEVEN Convenience Stores.’
[21] The court considered that in
determining the meaning of ‘business support system’ it should have
regard at least
to background circumstances – those facts known to all
parties and that are not in contention. The most important circumstance
in this
matter, said Mitchell AJ, was the disclosure document prepared by the appellant
for prospective franchisees. That document
states that ‘the benefits of
belonging to the group are enormous’. One of the reasons advanced for this
is that ‘Head
Office buys in bulk and negotiates maximum discounts, which
are passed on directly to the franchisee’. Much of the argument
on the
four alternative grounds for the claim was directed to this
statement.
[22] There is no doubt, in my view, that the trial judge, in
interpreting the contract, was entitled to have regard to the disclosure
document as one of the circumstances forming the
background.[1] The document was a
factor known to the representatives of each: it had been prepared by the
appellant and given to Fouché
by McConnagh before he had decided whether
to enter into the sale and franchise agreements on behalf of the
respondent.
[23] There are, however, two difficulties with the approach
taken by the court below. First, the words regarded as uncertain were
in the
preamble to the franchise contract, and were conceded by the respondent not to
impose any obligations on the
appellant.[2] The justification for
having regard to the disclosure document was thus flawed since no light was
thrown on the obligations of the
appellant.
[24] Secondly, the court
examined the words in isolation, without having regard to the document as a
whole. Particular attention was
paid to dictionary definitions of the words
‘discount’ and ‘rebate’, without considering the entire
business
system set out in the document and in the projections on turnover and
profit given to Fouché before the contracts were concluded.
The court
considered that the word ‘discount’ included rebates. It is true
that the dictionary definitions of rebate
indicate that it is a retroactive
discount.[3] Indeed, the Concise
Oxford English Dictionary[4] gives as
one of its meanings ‘a deduction or a discount on a sum due’ without
reference to the aspect of retroactivity.
But dictionary definitions, as has so
often been said by this court, are not always helpful, let alone conclusive. In
Fundstrust (Pty) Ltd (in liquidation) v Van
Deventer[5] Hefer JA
stated:
‘Recourse to authoritative dictionaries is, of course, a
permissible and often helpful method available to the Courts to ascertain
the
ordinary meaning of the words . . . . But judicial interpretation cannot be
undertaken, as Schreiner JA observed in Jaga v Dönges NO . . . . 1950
(4) SA 653 (A) at 664H, by “excessive peering at the language to be
interpreted without sufficient attention to the contextual
scene”.’
Similarly, in De Beers Industrial Diamond Division
(Pty) Ltd v Ishizuka[6] Nicholas J
said, in relation to the interpretation of a patent specification:
‘A
dictionary meaning of a word cannot govern the interpretation. It can only
afford a guide. And, where a word has more than
one meaning, the dictionary does
not, indeed it cannot, prescribe priorities of meaning. The question is what is
the meaning applicable
in the context of the particular document under
consideration.’
Both these statements were referred to with approval by
Harms JA in Monsanto Co v MDB Animal Health (Pty) Ltd (Formerly MD Biologics
CC).[7] Moreover, as Lord Steyn
said in R v Secretary of State for the Home Department, ex parte
Daly[8] ‘in law context is
everything’, a statement referred to by Nugent JA with approval in
Aktiebolaget Hässle v Triomed (Pty)
Ltd.[9]
[25] The
proper question to be posed then, when having regard to the entire context in
which the parties found themselves at the time
of negotiating the contracts, is
what was meant by the parties. This enquiry requires a consideration of the
whole disclosure document
which explains the appellant’s method of
operation as a franchisor. That document, the franchise contract, and the
evidence
of Hadjidakis and Fouché, explain the context.
[26] The
evidence of Hadjidakis and of Cameron was that trade discounts that were passed
on to franchisees were of a completely different
nature from rebates. Both
testified that a discount is negotiated with a supplier before sales are made to
the franchisees, and are
thus reflected on the invoices given to the franchisee
when goods are delivered to it. Rebates, on the other hand, are given by
manufacturers
or suppliers after sales have been made. They are given for
reasons unrelated to the individual franchisees: in general, they will
be given
to a purchaser as a reward for growth, for example, reaching a target of a
certain number of stores, or because the purchases
made over a period have
grown. The fact of a rebate, and its quantum, are generally regarded as
confidential. The major supermarket
chains do not know what rebates are given to
others, and Hadjidakis said that even the managing director of a major chain
might not
know what rebates had been given – only the person in direct
control of buying would be aware of the full extent of it. Rebates,
he
testified, were an important source of profit to the
appellant.
[26] Furthermore, whereas trade discounts negotiated ahead of
a purchase, were taken into account when making the financial projections
for a
potential franchisee, and in respect of which the respondent obtained the
benefit, rebates could never have been part of the
projections because they were
not known when these were calculated. And how, asked the appellant, if rebates
were to be passed on
to franchisees, would this be done? Rebates were not
linked to sales made to individual franchisees: they were linked to the
franchisor’s
operation and growth.
[27] If one has regard to the
contract in question, the disclosure document and the evidence of Hadjidakis, it
becomes apparent that
it could never have been intended that rebates be passed
on to the respondent or any other franchisee. In any event, in so far as
Fouché’s intention is concerned, he testified that at the time of
entering into the contract he had not been aware of
the existence of rebates.
Obviously, then, he could not have expected to get the benefit of
any.
[28] In so far as early settlement discounts were concerned, no
provision was made in any of the documents concerned for passing on
the benefit
of these to franchisees. It will be recalled that all payments for goods sold to
franchisees by suppliers are paid for
by the appellant. In certain cases if
payment was made promptly or before due date a discount would be given to the
appellant. The
court below concluded that such discounts did not relate to bulk
purchasing: they were a function of payment made timeously or early
by the
appellant. They therefore did not accrue to the respondent on any interpretation
of the franchise contract.
[29] In my view, having regard to the terms
of the franchise contract and the disclosure document it is clear that the
parties did
not intend that such discounts enured for the benefit of the
respondent. The claim on this ground must thus fail.
The claim based
on quasi-mutual assent
[30] The first alternative claim made by the
respondent was that, prior to the conclusion of the franchise contract, the
appellant
had led the respondent, represented by Fouché, reasonably to
believe that any discounts negotiated with suppliers would be
passed on to the
respondent. The response to that claim was that the contract expressly excluded
liability for representations or
warranties made by the appellant. The
respondent then amended its claim to aver fraudulent misrepresentations made by
Hadjidakis
to Fouché. I shall deal with that ground in due
course.
[31] In my view, the claim based on quasi-mutual assent is in any
event misconceived. In order to rely on quasi-mutual assent one
must show that
the person who has relied on terms different from those appearing in the
contract has done so reasonably.[10]
One must ask first whether there has been a misrepresentation as to one
party’s intention; secondly, who had made that representation,
and
thirdly, whether the other party was misled. Thus the essential question is
whether, as a result of misrepresentation, the contract
is different from what
it appears to be. This approach requires that one looks for a misrepresentation
as to the terms of the contract.
Apart from the fact that there was no credible
evidence to show that Fouché had indeed been misled, the contract itself
precluded
reliance on any misrepresentation, in the absence of fraud. The action
must thus fail on this ground too.
The claim based on an implied or a
tacit term
[32] The distinction between implied and tacit terms is now
trite. The former is a term implied by the law, the latter a term implied
by the
facts.[11] It was not argued by the
respondent that there is any term relating to special forms of discount that
must be available to a franchisee
implied by law. But it was argued that the
parties had tacitly agreed that the respondent would receive the benefit of all
discounts
given to the appellant by suppliers. Hadjidakis denied that he would
have agreed to such a term. It was the essence of his business
strategy that the
appellant alone would be the beneficiary of rebates and early settlement
discounts. And Fouché could hardly
contend that he intended to get such
discounts given that he did not know of their existence at the time of entering
into the contract.
[33] The principle applied over many years is that
the term to be incorporated in the contract must be necessary, not merely
desirable.[12] The classic tests
used to give effect to this principle do not, however, take into account the
actual intentions of the respective
parties. They require the court to consider
whether the term contended for would give ‘business efficacy’ to the
contract;[13] or to ask what the
‘officious bystander’ – a person who is not a party to the
contract but asked whether the term
is necessary – would
say.[14] These are objective tests.
On either test, when one asks whether it was necessary to incorporate a term
in the franchise contract
that the franchisee would receive the benefits
of all discounts obtained by the franchisor, the answer must be that
such
a term was not necessary. On the contrary: it was fundamental to the
appellant that it received the early settlement discounts and
the rebates for
its own benefit. These discounts were what made the appellant’s business
profitable.
[34] Whether one looks at the matter on a subjective basis
– what the parties actually thought at the time of entering into
the
contract – or on the objective tests applied over many decades, the answer
is clear. There was no tacit term that the respondent
was entitled to the
benefit of early settlement discounts or of rebates.
The claim based
on fraudulent misrepresentation
[35] The particulars of claim were
amended, as I have said, to allege fraud on the part of Hadjidakis when the
appellant relied on
the clauses in the franchise contract that excluded
liability for misrepresentations. But such exemption clauses do not avail a
party
who has made fraudulent misrepresentations to the
other.[15] The court below found
that Hadjidakis had not made any fraudulent misrepresentations on which the
respondent could rely. There was
no proof that Hadjidakis had told Fouché
that all discounts obtained by the appellant would be passed on to the
respondent,
let alone proof that he had done so deliberately in order to
mislead. At all times Hadjidakis had believed, the court found, that
a
distinction was to be drawn between discounts negotiated in advance with
suppliers, and which were thus for the benefit of franchisees,
and rebates and
settlement discounts which allowed the appellant to operate at a profit.
Moreover, Fouché conceded that he
had not been aware of the existence of
these latter benefits when negotiating the contract. It would thus be absurd to
suggest that
Hadjidakis had told him otherwise, or even that he had a duty to
disclose to Fouché that certain discounts would not be passed
on to the
respondent.
[36] Moreover, Hadjidakis had told Fouché that there
were several dissatisfied franchisees before the contract was concluded,
and had
invited Fouché to attend a meeting at which complaints about not getting
the benefit of rebates and early settlement
discounts were aired. Although
Fouché had not attended the meeting, members of his family had done so.
And Fouché had
been put in touch with another franchisee, who was
vociferous in his complaints about the appellant, in order to receive training.
It is highly unlikely therefore that he believed, whether as a result of a
misrepresentation or a failure to disclose that certain
discounts would not
enure for the respondent’s benefit, that the respondent was entitled to
rebates and early settlement discounts.
[37] In any event, even if there
had been a misrepresentation, or non-disclosure, fraudulent, negligent or
innocent, it is apparent
that Fouché had not relied, to his detriment, on
such misrepresentation or non-disclosure, in entering into the contracts
in
respect of the Parow store. For at the stage when he was fully aware that
franchisees were not getting the benefits for which
they were clamouring, he
nonetheless entered into a new arrangement with the appellant, purchasing a
different store and concluding
a new franchise agreement which expressly stated
that the franchisor ‘shall in its sole discretion afford the franchisee
the
benefit of trade discounts received by it as a result of bulk
purchases for goods and merchandise purchased on the franchisee’s
behalf’ (my emphasis).
[38] The finding of the trial court that
Hadjidakis had not acted fraudulently is thus correct. To this is added that
Fouché
had not relied on any misrepresentation, if such there was, in
entering into the franchise contract. This claim is thus also
unfounded.
[39] In summary: the respondent did not establish in the court
below that it was entitled to payment of any amount representing the
benefits of
rebates or early settlement discounts afforded to the appellant on any of the
grounds alleged.
[40] It is ordered that:
1 The appeal is upheld
with costs, including those consequent on the employment of two
counsel;
2 The order of the court below is set aside and replaced by:
‘The Plaintiff’s claim is dismissed with costs including
those
consequent upon the employment of two counsel.’
3 The cross appeal is
dismissed with costs.
C H Lewis
Judge of Appeal
Concur:
Mpati DP
Farlam JA
Heher JA
Ponnan JA
[1] See for example Coopers
& Lybrand v Bryant [1995] ZASCA 64; 1995 (3) SA 761 (A) at
767I-768E.
[2] See ABSA Bank Ltd
v Swanepoel NO 2004 (6) SA 178 (SCA)at 181D-G.
[3] The New Shorter Oxford English
Dictionary 4 ed (1993).
[4] 10 ed
2002.
[5] 1997 (1) SA 710 (A) at
726H-727B.
[6] 1980 (2) SA 191 (T)
at 196E-F.
[7] 2001 (2) SA 887
(SCA) at 892A-E.
[8] [2001] UKHL 26
para 28[2001] UKHL 26; ; [2001] 3 All ER 433 (HL) at
447a.
[9] 2003 (1) SA 155 (SCA) at
157G.
[10] Sonap Petroleum
(SA) (Pty) Ltd (formerly known as Sonarep (SA) (Pty) Ltd) v Pappadogianis
[1992] ZASCA 56; 1992 (3) SA 234 (A) at
239J-240A.
[11] Alfred
McAlpine & Son (Pty) Ltd v Transvaal Provincial Administration 1974 (3)
SA 506 (A).
[12] Union
Government (Minister of Railways and Harbours) v Faux Ltd 1916 AD 105;
West End Diamonds Ltd v Johannesburg Stock Exchange 1946 AD 910;
Mullin (Pty) Ltd v Benade Ltd 1952 (1) SA 211 (A); Wilkins NO v Voges
[1994] ZASCA 53; 1994 (3) SA 130 (A) at
142B-E.
[13] See Alfred
McAlpine above at 532 in fin-533B, where Corbett JA relied on a statement
of Scrutton LJ in Reigate v Union Manufacturing Co [1918] 1 KB 592 (CA)
at 605; 118 LT 479 (CA) at
483.
[14] See the dictum of
Mackinnon LJ in Shirlaw v Southern Foundries (1926) Ltd [1939] 2 KB 206
(CA) at 227, and Barnabas Plein & Co v Sol Jacobson & Son 1928 AD
25 at 31-32 where Stratford JA too had regard to what an independent person
would say about the necessity of incorporating the term
in question.
However, Stratford JA also stated that the ‘true view’ is that
‘you have to get at the intention of the parties
in regard to a matter
which they must have had in mind, but which they have not expressed’. He
considered therefore that one
had to have regard not only to objective tests but
also to what the parties claimed to have
intended.
[15] Wells v SA
Alumenite Company 1927 AD 69; Reeves v Marfield insurance Brokers CC
[1996] ZASCA 39; 1996 (3) SA 766 (A) at 775C-H.