IN THE HIGH COURT OF SOUTH AFRICA 
(CAPE OF GOOD HOPE PROVINCIAL DIVISION)

CASE: 5352/2003

In the matter between:

CIRCUIT ENVIRONMENTAL ENGINEERING

Versus

MOTALA J

[1] Plaintiff, a company, claims payment of damages it suffered as a result of the alfeged repudiation of a contract by defendant, a voluntary association of cyclists.

[2]    Plaintiff avers that:-

(a) during September 2002, plaintiff, represented by Mr Ryan Beswick, submitted a written tender to defendant to publish a magazine entitled "Life Cycle" for a period of three years; 
(b) on 19 September 2002, defendant accepted the tender and a contract was thereby concluded resulting in plaintiff being appointed the publisher of the magazine for three years,
(c) during or about February or March 2003, defendant repudiated the contract by appointing another company, Touchline Media (Pty) Ltd ("Touchltne") to publish, the magazine;
(d) plaintiff accepted the repudiation and cancelled the contract.

[3]    Defendant admits receipt of the tender and that it responded thereto. It avers, however,

(a) that its response did not constitute an unconditional acceptance of the tender, more particularly in that the tender was accepted subject to the following two conditions:

(ii)    that a written contract be drawn up by defendant's attorney, Lawrence Whittaker, including escalation clauses and signed by the parties.

[4] It is common cause that the November/December 2002 issue of the magazine was successfully published and distributed by Mr Beswick and that a written contract was never concluded.

[5] The basic dispute in regard to the contract is whether defendant's response to the tender resulted in the conclusion of a three year contract

In order to assess the cogency of the evidence on that issue, the history of the relationship between Mr Beswick and defendant priorto the submission of the tender is of considerable importance.

On 30 July 2002, defendant learnithat Purple Hat would not be able to pay the printers of the magazine and that the August/September issue of the magazine would not be published. Defendant was obliged to pay about R30 000.00 to the printers in order to have the magazine published. Purple Hat was liquidated in August, 2002 and defendant was left without a publisher.

During the period between the conclusion of the oral agreement until the said liquidation, no less than seven written agreements were drafted by Mr Whittaker. None were signed as there were numerous provisions in the agreements drafted by Mr Whittaker which were unacceptable to Mr Beswick, especially a provision requiring him to be a surety for Purple Hat's obligations to defendant

Mr Roberts was a good witness.

[9] Mr Fouche confirmed that at defendant's annua! general meeting, he was asked by Mr Beswick whether he couid submit a tender to publish the magazine again. Because of the defendant's recent experience with Purple Hat he felt uncomfortable and referred Mr Beswick to Mr Roberts.

Mr Fouche confirmed that the extract of the meeting, quoted in paragraph 7 above, correctly reflected the decision taken at the meeting.

Mr Fouche confirmed that Mr Whittaker had not been asked to draft the contract He could not explain that omission.

Mr Fouche denied that when Mr Beswick came to see him alter he had learnt that the publishing contract had been awarded to Touchline, he agreed with Mr Beswick that he had a three year contract with defendant.

Mr Fouche was an excellent witness.  Indeed, Adv Katzew, who appeared for plaintiff did not criticise him or his evidence in any respect whatsoever

Mr Whittaker denied drafting, or even seeing a draft, of an addendum to a contract concluded by Mr Beswick with Primedia, another publisher.

He also denied that he told Mr Beswick, during a telephone conversation, that Mr Beswick should tell Mr Fouche that he had a contract with defendant and should hold defendant thereto.

Mr Whittaker confirmed that at no stage after the meeting of the executive committee on 19 September 2002 was be asked by either Mr Beswick or defendant to draft a written contract between the parties. In fact, he was asked by defendant to see Mr Dave Beilairs, a member of defendant's executive committee and Mr Ingpen, a representative of Touchltne, in order to negotiate and to draft a written contract between defendant and Touchiine to publish the magazine.

Mr Whittaker was a good witness.

He added that he had asked Mr Whittaker to draft a written agreement.

Mr Beswick emphasised that he would not have undertaken to publish the September/October issue of the magazine without a three year contract or a higher fee.

Mr Beswick said that Mr Whittaker had either drawn up the addendum to the contract he had concluded with Primedia or had looked at it on his behalf.

He said also that after the alleged repudiation both Mr Whittaker and Mr Fouche assured him that he had a binding contract with defendant.

See for example:-

[13] Mr Beswick was not a satisfactory witness, i cannot accept those portions of his evidence which conflict with the evidence of defendant's witnesses. Nevertheless, I accept, that he has at all times honestly believed that he had a three year contract, the period for which he had tendered. During the telephonic conversation with Mr Roberts, it is reasonably possible that he concluded that the tender, including, the three year provision, had been accepted by defendant.

[14] However, in my view, he was wrong in coming to that conclusion. The minutes of the meeting of defendant's executive committee on 19 September 2002, quoted in paragraph 7 above, are unambiguous -the tender was accepted subject to two conditions, one of which was that a formal contract be drawn up by Mr Whittaker and signed by the parties. Any" doubt as To the" 'effect "tnefeof Ts "eTfrnTriateft" by "ih'S evidence of Mr Fouche, who presided at the meeting that, because of the damage suffered by defendant as a result of Purple Hat's liquidation, it was essential that a written contract which included the provision of a suretyship or guarantees, be concluded.
It follows that a three year contract did not come into existence and plaintiff was entitled to conclude a contract with Touchline.

Mr Beswick was familiar with most but not all of those documents.

It is clear, however, that both parties have failed to comply timeousiy or adequately with the rules of Court, an occurrence which increasingly hampers the efficient functioning of the courts.

[17] Plaintiffs claim is dismissed with costs, including the costs of two counsel save and except that each party shall bear its own costs occasioned by the postponement of this matter oh 4~April 2006'.

A.M. MOTALA
Judge of the High Court