Sentinel Mining Industry Retirement Fund and Another v Waz Props (Pty) Ltd and Another

• Jurisdiction: South Africa
• Citation: 2013 (3) SA 132 (SCA)

Sentinel Mining Industry Retirement Fund and Another v Waz Props (Pty) Ltd and Another
2013 (3) SA 132 (SCA)

2013 (3) SA p132

Citation	2013 (3) SA 132 (SCA)
Case No	779/20110; [2012] ZASCA 124
Court	Supreme Court of Appeal
Judge	Cloete JA, Malan JA, Shongwe JA, Tshiqi JA and Southwood AJA
Heard	August 15, 2012
Judgment	September 21, 2012
Counsel	LJ van der Merwe SC for the appellants.; JJ Bitter for the respondents.

Flynote : Sleutelwoorde E

Contract — Interpretation — Headings — Can be taken into account in interpreting contract — Where heading conflicts with body of contract, body of F contract to prevail — But where heading and detailed provisions of contract can be read together, this should be done.

Headnote : Kopnota

In the absence of express provision to the contrary, headings in contracts can be taken into account in interpreting the contract. Where a heading conflicts with the body of the contract, it must be the body of the contract which G prevails because the parties' intention is more likely to appear from the provisions they have spelt out, than from an abbreviation they have chosen to identify the effect of those provisions. But where the heading and the detailed provisions can be read together, that should be done. (Paragraph [10] at 137B – C.)

Cases Considered

Annotations H

Case law

Southern Africa

Bekker v Western Province Sports Club (Inc) 1972 (3) SA 803 (C): dictum at 818 – 819 applied

Dormell Properties 282 CC v Renasa Insurance Co Ltd and Others NNO 2011 (1) SA 70 (SCA): referred to I

Hayne & Co Ltd v Central Agency for Co-operative Societies (in Liquidation) 1938 AD 352: dictum at 365 – 366 compared

Lombard Insurance Co Ltd v Landmark Holdings (Pty) Ltd and Others J 2010 (2) SA 86 (SCA): referred to

2013 (3) SA p133

Parkinson v Mathews and Drysdale 1930 WLD 58: applied A

Trever Investments (Pty) Ltd v Friedhelm Investments (Pty) Ltd 1982 (1) SA 7 (A): dictum at 15A – C compared

Union Government (Minister of Railways and Harbours) v Faux Ltd 1916 AD 105: dictum at 112 considered.

England B

Robertson v French 4 East 130 (102 ER 779): compared.

Case Information

LJ van der Merwe SC for the appellants.

JJ Bitter for the respondents.

Appeal from a decision in the South Gauteng High Court, Johannesburg C (Willis J).

Order

The appeal is dismissed with costs.

Judgment

Cloete JA (Malan JA, Shongwe JA, Tshiqi JA and Southwood AJA D concurring):

[1] Waz Props (Pty) Ltd and Sentinel Mining Industry Retirement Fund (SMIRF) entered into a contract pursuant to which Waz Props caused E Werlex Properties (Pty) Ltd to have a guarantee issued by Absa in favour of SMIRF's attorneys. The guarantee was presented for payment and paid. In the court below, Waz Props and Werlex (the applicants) instituted motion proceedings against SMIRF and its attorneys for repayment of the amount of the guarantee. They succeeded before Willis J, who subsequently granted leave to appeal to this court. F

[2] The background to the contract is the following. Waz Props owned properties in Elton Hill, Johannesburg. SMIRF owned the Melrose Arch Development and wished to embark on a project (the project) to upgrade Park Road, Birnam, which is in close proximity to the properties owned by Waz Props. Waz Props applied to the local authority for permission to G rezone the properties. SMIRF lodged an objection to the rezoning. The applicants alleged in their founding affidavit that:

'The objection was without any merit, and was aimed at pressuring [Waz Props] into making a contribution to the [project].'

This allegation was admitted by SMIRF in its answering affidavit. SMIRF H withdrew the objection when Waz Props entered into the contract.

[3] The contract contained the following terms, which it is unfortunately necessary to quote in full (the 'owner' is Waz Props):

'3 Owner's Obligations I

The owner agrees and undertakes to effect payment of its pro-rata share of the Park Road Upgrading Project the total cost in an amount of R115 531,87.

4 Method of payment

The owner will secure its obligations in terms of this agreement in either of the following manners:

J

2013 (3) SA p134

Cloete JA (Malan JA, Shongwe JA, Tshiqi JA and Southwood AJA concurring)

4.1

A the owner shall within seven days of signature hereto, either:

4.1.1

effect payment by way of a bank transfer, which the owner undertakes to effect directly into the account of the Attorneys, Nedbank Rosebank Branch . . . which Attorneys Northrand Business Branch . . . which Attorneys are hereby authorised to invest such sum in an interest bearing account B with a registered bank or financial institution and in terms of section 78(2A) of the Attorneys Act 53 of 1979. The said account will be in the name of Fluxmans Inc with a reference to the aforesaid section of the Attorneys Act but will be identified with the name Park Road Upgrading Project and the interest earned thereon will accrue for the benefit of C the Park Road Upgrading Project;

alternatively

4.1.2

secure payment by way of a registered bank or financial institution guarantee substantially similar to that of the draft guarantee annexed as annexure B;

or

4.2

D the owner:

4.2.1

agrees to register the following restrictive condition against the title deeds of the property, imposed by and in favour of SMIRF:

"Restrictive Condition:

1.

The property shall not be used for any purpose E other than in accordance with its present zoning, without the prior written consent of SMIRF or its successors-in-title, first having been had and obtained.

2.

In the event of the property being sold or disposed of in any manner whatsoever, then and in F such event the owner will ensure that the amount referred to in 3, (which in this instance will escalate at a rate of 10% per annum, escalated from the date of registration of the restrictive condition until date of payment, compounded monthly), is [to] be paid to SMIRF out of the G proceeds of the sale and the owner shall ensure further that an appropriate registered bank or financial institution guarantee is furnished to the attorneys, which guarantee shall be drawn in favour of SMIRF or its nominee and expressed to be payable free of exchange against registration H of transfer;

4.2.2

to that end the owner simultaneously with its signature to this agreement gives and grants to SMIRF an irrevocable power of attorney in its name place and stead and at the I owner's own cost and expense, to register the abovementioned restrictive condition against the title deed of the property, hereby ratifying, allowing and confirming and promising to ratify, allow and confirm all and whatsoever the said attorneys shall lawfully do or cause to be done by virtue of this authority, upon and subject to the terms set out in annexure C which Power of Attorney shall remain valid and J in full force and effect during the currency of the agreement;

2013 (3) SA p135

Cloete JA (Malan JA, Shongwe JA, Tshiqi JA and Southwood AJA concurring)

4.2.3

undertakes to contribute the sum of R1500 plus VAT, A towards the costs of registering the...