HELD. The Court held that:
HELD allowing the appeal and awarding costs to the appellant in the High Court and in the appeal: Contractual provisions
HELD. Counsel for the Appellant, submitted that clause 11.2, contained a presumption that in all cases, there needed to be a decommissioning in accordance with the original manufacturers specification, in an attempt to overcome the difficulty that there was common cause that the original manufacturer had done nothing of the sort. He did this by going through the background which led to the conclusion of the MRA, by stating that the Respondent was solely responsible for the nature of the Equipment, so the Respondent had to ensure that the manufacturer specified the requirements thereof. The fact that the Respondent failed to get these requirements, should not be laid to the Appellant’s door. The Appellant’s submission is based on a fundamental fallacy in the interpretation of contracts. The fallacy lay in describing clause 11.2 as a presumption and treating it as an independent enacting provision when in substance, it is a proviso to clause 11.1. To address this fallacy, the court relied on the case of Mphosi v Central Board for Co- Operative Insurance 1974 (4) SA 633 (A), which states that “…a provisio cannot be construed as enlarging the scope of an enactment when it can be fairly and properly construed without attributing to it that effect”. The Court further mentioned the case of R v Dibdin [1910] P 57 (CA), which expresses that“…It sins against the fundamental rule of construction that a proviso must be considered in relation to the principal matter to which it stands as a proviso”. In light of the above, the Court dismissed this appeal with costs, including the costs of two counsels.
HELD. Red Steer shall issue two separate checks for the penalty payment: (a) one check made payable to OEHHA in the amount of $2,250.00 representing 75% of the total penalty; and (b) one check to “The Chanler Group in Trust for Xxxxxxx X.. Held” in the amount of $750.00 representing 25% of the total penalty. Two separate 1099s shall be issued for the above payments. The checks and 1099s shall be delivered to the addresses listed in Section 3.3 below.
HELD. Reference to Section 14 of the Act was made, which deals with, inter alia, prescription being interrupted by an acknowledgement of liability by the defendant (that is, where the Defendant makes part payment of the debt). For purposes of trial and determining whether prescription had arisen, the parties agreed that the period for prescription would be 3 years.
HELD. Such employee may also displace a less senior employee (utilizing total City seniority) in another department in a classification which the employee has previously held and performed in a satisfactory manner.
HELD. The SCA, in determining whether sureties who also bound themselves as co-principal debtors, such as the Respondent, became co-debtors with the principal debtor (ECE), rejected the Appellant’s contentions and held that a surety and co-principal debtor does not undertake a separate independent liability as a principal debtor. The addition of the words ‘co-principal debtor’ does not change such an agreement into any agreement other than one of Suretyship. The surety does not become a co-debtor with the principal debtor, nor does he become a co-debtor with any of the co-sureties and co-principal debtors, unless same has been agreed to by the respective parties. The SCA, in determining whether the service of a summons on any of the sureties interrupts the running of prescription in favor of the others, too rejected the Appellant’s argument in this regard, and held that if it were to extend the Justinian constitution, same would constitute a considerable departure from the common law principles on the law of suretyship, and there were no persuasive reasons for the SCA to have done so. Moreover, if the principal debt became prescribed, the surety’s debt, by virtue of same, had too prescribed. As such, the SCA dismissed the appeal with costs.
HELD. The court held that there can be no question that consent for the cession was never obtained (from any party) before the first invoice discounting facility agreement (“XXX”) was entered into. Accordingly, the Plaintiff and the Fourth Defendant entered into a cession agreement, which is valid between the two, however, cannot be enforced against the First Defendant. The court accordingly dismissed the Plaintiff’s claim with costs.
HELD. The court, referring to clause 3.2 of the MRA, stated that, as per the party’s consensus, the agreement would terminate upon the expiry of the specified rental period. The agreement provided for a minimum rental period of 12 quarters, commencing on 3 December 2013 and terminating on 30 November 2016 (or, at the latest, 2 December 2016). If the court had given effect to the applicant’s contention, then the minimum rental period would have been extended for a further 3 months and terminate on 28 February 2017, thereby constituting almost 13 quarters, as opposed to the agreed 12 quarters. The court stated that giving effect to the applicant’s contention would lead to absurdity. The MRA contained an express provision to the effect that the agreement would terminate after 12 quarters. The court therefore rejected the applicant’s contention that the agreement should constitute almost 13 quarters as this was not the intention of the parties when entering into the agreement. The applicant, in responding to the court’s submissions, argued that the contract period would still be for express 12 quarters and that the interregnum period would be in addition thereto. The court disagreed with the applicant, stating that the applicant’s interpretation of the agreement would lead to an outcome whereby the interregnum rental would be treated as extraneous to the quarterly payments, the effect of which would be to ignore the express wording of clause 3.2, specifying that the rental period would be for 12 quarters commencing on the commencement date. The court, in agreeing with counsel for the respondent, stated that the first payment made by the respondent constituted a quarterly payment, but was adjusted as the period involved was shorter than a quarter. This interpretation was held to be consistent with clause 4.1 of the agreement, which did not distinguish between the first rental payable on the commencement date and the subsequent rentals payable on the rental due date. The applicant responded to the courts averments by arguing that it would lead to absurdity if the commencement date was a matter of days before the rental due date, thus shortening the minimum rental period to just over 11 quarters. The agreement made no provisions for a shortfall of the rental period of 12 quarters. The court suggested that a tacit term be inserted, to the effect that the rental period be extended in order to make up any shortfall, and that a proportionate rental be calculated and paid a...
