Thornton v Fleet Africa Eastern Cape (Pty) Ltd

• Jurisdiction: South Africa
• Judge: Revelas J
• Judgment Date: 27 October 2011
• Docket Number: EL 1000/08; ECD 2400/08
• Hearing Date: 25 October 2011
• Court: East London Local Division

Revelas J:

[1]

The plaintiff issued summons against the defendant for payment of an amount of R184 735.29 and interest thereon, which it contends is the balance of fees incurred for rendering additional accounting services to the defendant in terms of an agreement between them. It is common cause between the parties that the defendant has already paid R204 579.09 for fees on the presentation of an invoice by the plaintiff.

[2]

The issue between the parties is whether the defendant is liable for payment of fees in respect of additional auditing time spent by the plaintiff over and above the work specified in the agreement between the

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parties. The issues pertaining to the merits of the matter (i.e. liability), was separated from those issues pertaining to quantum, by agreement.

[3]

At the end of the plaintiff's case, the defendant applied for absolution from the instance. Both parties were ad idem that the trite test for absolution should apply, namely whether a court, based on the evidence presented, could reasonably find for the plaintiff. If not, the absolution should be granted.

[4]

The following facts are relevant to the application for absolution:

The defendant had engaged the services of the plaintiff, a firm of chartered accounts, for purposes of verifying, and quantifying a claim made by the defendant against the Eastern Cape Provincial Government ("ECPG"). The defendant, a provider of vehicles and transport services, was awarded the total fleet outsourcing contract for the ECPG vehicle fleet for a five year period which was to come to an end in 2008. The defendant claimed certain sums of money from the ECPG, resulting in a dispute between them. The defendant then invited quotations to be submitted for an assignment, in terms whereof an independent audit would be conducted regarding the quantification of the defendant's claims against the ECPG. The purpose of the quantification, seen from the defendant's perspective, was to resolve the existing dispute between itself and the ECPG. The plaintiff's quotation was accepted. The parties then entered into oral negotiations which culminated in an agreement which was reduced to writing in a letter of engagement, dated 14 January 2008.

[5]

Both parties regarded this letter headed "Terms of engagement" as the contract which regulated their relationship regarding the assignment in terms whereof the plaintiff would conduct an audit which would cover quantification of the claims against the ECPG in respect of the following:

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outstanding rental, interest on late payments, outstanding abuse claims, and outstanding rentals on buses.

[6]

The plaintiff's case as pleaded was that on 26 February 2008, the plaintiff and the defendant entered into a further agreement where it was accepted by the defendant, that the estimated budget for completing the assignment was inadequate, by reason of the fact that incomplete or inaccurate information was furnished to the plaintiff. The plaintiff's declaration also states that it was agreed between the parties that the plaintiff should proceed with the assignment as expeditiously as possible, and that such fees as would be required, if incurred, would be paid by the defendant as being additional fees or costs, over and above "the estimate of R244 047.00 in accordance with the agreed tariff". Subsequently, because "pervasive errors" in the documentation provided were identified and required correction, there...