Shill v Milner

• Jurisdiction: South Africa
• Judge: Stratford ACJ, De Villiers JA, Tindall AJA and Feetham AJA
• Judgment Date: 16 October 1936
• Citation: 1937 AD 101
• Hearing Date: 08 October 1936
• Court: Appellate Division

De Villiers, J.A.:

The appeal fails in my opinion. In the court below Shill defended the case on grounds so inept that they have been jettisoned on appeal by Mr. Ramsbottom. His sole contention has been that specific performance should not have been decreed. He leads up to this contention by a chain of preliminary

De Villiers, J.A.

reasoning of which I find it difficult always to appreciate the relevance. This preliminary portion of Mr. Ramsbottom's argument consists largely of an examination of the ipsissima verba of the pleadings. While listening to him however, I could not but ask myself what the substantial issue was between the parties in the court below. The importance of pleadings should not be unduly magnified. "The object of pleading is to define the issues; and parties will be kept strictly to their pleas where any departure would cause prejudice or would prevent full inquiry. But within those limits the Court has wide discretion. For pleadings are made for the Court, not the Court for pleadings. Where a party has had every facility to place all the facts before the trial Court and the investigation into all the circumstances has been as thorough and as patient as in this instance, there is no justification for interference by an appellate tribunal merely because the pleading of the opponent has not been as explicit as it might have been." Robinson v Randfontein Estates G.M. Co. Ltd. (1925 AD 198). In another case, Wynberg municipality v Dreyer (1920 AD 443), an attempt was made to confine the issue on appeal strictly to the pleadings, but it was pointed out by INNES, C.J., that the issue had been widened in, the court below, by both parties. "The position should have been regularised of course," said he, "by an amendment of the pleadings; but the defendant cannot now claim to confine the issue within limits which he assisted to enlarge."

These principles apply to the present dispute. Assuming (though I disagree) that Mr. Ramsbottom's contentions, based on the frame of the pleadings, are just, the fact remains that the issues were substantially broadened in the court below. Mr. Ramsbottom admits frankly that the points taken by him in this court, based on the Terminology of the pleadings and of the plaintiff's prayer, were never taken in the court below; though he at the same time complains that the learned trial judge arrived at his decision not in strict accordance with the provisions of the Act and Regulations, but in accordance with the practice by which the objects of the Act are attained. Very candidly Mr. Ramsbottom admits that both Shill and Milner were fully aware of that practice at the time when they entered into the contract (August, 1934). (From this fact, I infer, in passing, that the parties made the contract in contemplation of that practice, especially as it was known to them that

De Villiers, J.A.

Shill was not an exporter of mealies, and was not going to export mealies in fulfilment of his obligation under the contract).

To return to the question of the real issue in the court below. The question is illustrated by the letters of 9 July, 193.5, and 22 August, 1935. But I mention these merely by way of illustration. My conviction as to the nature of the issues is based on the perusal of the evidence, the exhibits and the judgment of the court below, and I conclude that the real issue between the parties was whether Milner was entitled to claim that Shill should transfer, or make available for Milner's benefit, export quota certificates for 1118.5 bags. Not only was that the issue, but that in my opinion was Shill's obligation under the contract, when I recall, that both parties had in mind the practice already referred to and when I recall also that Shill was not intending to export any mealies personally. The words of this contract are elastic enough: "Buyers to be responsible for the export quota in terms of the Act." think Mr. Ramsbottom has failed in his attempt to extract from these 13 words the precise rights and duties for which he contends.

Reverting however to the issues which emerged at the trial, the substantial issue was, as I have stated, Shill's liability to transfer export quota certificates to Milner. And the learned judge by adjudicating on that basis caused no prejudice to Shill and did not prevent a full enquiry, in terms of the judgment in the Robinson case.

All that I have said thus far deals with the preliminary part of Mr. Ramsbottom's argument, leading up to his culminating contention, that the...