THE SUPREME COURT OF APPEAL
OF SOUTH AFRICA

REPORTABLE
Case number :  303/05

In the matter between :

E C CHENIA & SONS CC

APPELLANT

and

LAMé & VAN BLERK

RESPONDENT

CORAM :

BRAND, LEWIS et HEHER JJA

HEARD :

9 MARCH 2006

DELIVERED :

17 MARCH 2006

Summary:

Contractual claim – not based on tacit contract as
contended for by the defendant – evidence departing
from pleadings – question one of prejudice to the other
side.

Neutral citation: This judgment may be referred to as Chenia &
Sons CC v Lamé & Van Blerk [2006] SCA 16
(RSA)
_____________________________________________________

JUDGMENT

BRAND JA/

BRAND JA:
[1] This appeal has its origin in the magistrate’s court for the district of
Vereeniging. The respondent ('plaintiff'), a partnership of consulting civil and
structural engineers, instituted action against the appellant ('defendant') for
payment of an amount of R22 852,80. In the summons, the plaintiff’s cause of
action was described as a claim for 'professional services rendered by plaintiff
to defendant at the latter's special instance and request'. This ‘special
instance and request’ was denied by the defendant in its plea.

[2] At the end of the trial proceedings, the magistrate granted judgment in
favour of the plaintiff for the amount claimed together with interest and costs.
The defendant’s appeal against that judgment was dismissed by the
Johannesburg High Court (Goldstein J with Khampepe J concurring). The
further appeal to this court is with the leave of the court a quo.

[3] Central to the defendant’s case on appeal is the proposition that the
evidence led by the plaintiff at the trial was not covered by its pleadings. In the
event, so the defendant contended, both the trial court and the court a quo
erred in holding for the plaintiff on the basis of that evidence. The evaluation
of this contention clearly requires a comparison of the allegations in the
pleadings with the evidence led at the trial. I first deal with the pleadings. As I
have said, the summons, rather tersely, indicated that the plaintiff’s claim was
for ‘professional services rendered at the defendant’s special instance and
request on or about 31 January 2002’. In response to the defendant’s request
for further particulars, the plaintiff added the following allegations: that the
professional services included ‘structural advice, drawing of plans . . . on
upgrading and extension of the old building’; that these services were
rendered during about January and February 2002, and that the ‘special
instance and request’ had been made by Mr Chenia, on behalf of the
defendant, to Mr Da Silva, on behalf of the plaintiff. The defendant’s plea to
these allegations read as follows:
‘1.
The defendant denies that it requested and insisted on the rendering of
professional services by the plaintiff as alleged, or at all.

1.1
In amplification of the aforegoing the defendant denies any
knowledge of a certain Mr Da Silva and that any request or
insistence was directed to him by the defendant as alleged.
2.
The defendant has no knowledge of the professional services allegedly
rendered and accordingly cannot admit or deny same.
3.
The defendant denies that it is indebted in the amount claimed, or any
amount at all to the plaintiff.’

[4] I now turn to the evidence led at the trial. The plaintiff's main witness
was Mr Carlos da Silva, a qualified civil engineer, who practiced in association
with the plaintiff partnership. During January 2002, so he testified, he had
been approached by an architect, Mr Nathan Heiman, who had been
contracted by the defendant on a certain building project, with the proposal
that the plaintiff should join the consulting team for the project. Apart from the
plaintiff, the team would consist of Heiman’s firm as architects and Mr Pieter
Nieman, as quantity surveyor. Da Silva found Heiman's proposal acceptable.
He therefore wrote a letter to the defendant on 31 January 2002. As it turned
out, this letter became one of two pivotal elements of the plaintiff's case. It
was addressed to 'Bargain Stores', (the defendant's trade name), and marked
‘for the attention of Mr Chenia, snr’. Its subject matter was described in the
heading as relating to 'additions to Bargain Stores, Vereeniging'. The relevant
part then reads as follows:
'At the request of the architects for the project mentioned above we would like to present to
you the cost of our services for your consideration.
... [T]he cost of the work on the above project for which we are responsible is estimated by
ourselves as R269 500, 00.
Based on the above the fee according to the Engineering Profession of South Africa Act,
1990 (Act 114 of 1990) [is]:  . . . R30240,50.
. . . We hope the above meets with your requirements and hope further to hear from you
soon.'

[5] According to Da Silva he did not receive an answer to this letter.
Though he realised that he had not been appointed until he received a
positive response, he nevertheless attended meetings in January and
February 2002 with the other members of the consulting team and started to

prepare the structural plans for which he would be responsible, obviously in
the hope that his appointment by the defendant (as the client and principal)
would follow. At the beginning of March 2002 the quantity surveyor, Nieman,
telephoned Da Silva. He wanted the plans and specifications that had been
prepared by Da Silva in order to complete his bill of quantities. Da Silva
explained to him that he could not provide him with the requested information,
because he had not as yet been appointed by the defendant. On 12 March Da
Silva received a telephone call from the defendant’s Mr Chenia. The ensuing
conversation became the second pivotal element of the plaintiff's case.
Chenia wanted to know whether the engineering input required by Nieman
was really necessary. Upon Da Silva's confirmation that it was so, Chenia
essentially told him to carry on and complete whatever engineering work was
required to provide Nieman with the information that he needed. On 15 March
2002 Da Silva then complied with what had clearly been an instruction from
Chenia. With regard to the amount claimed by the plaintiff, Da Silva's
evidence was that it was calculated in accordance with the tariff referred to in
his letter to the defendant, of 31 January 2002, which is quoted in para [4]
above. This amount was less than the amount estimated in the letter, so Da
Silva explained, because he had been told by the architect that Chenia had
decided to abandon the project prior to its completion.

[6] Although Da Silva was cross-examined on the contents of his version,
its veracity was never challenged. Heiman and Nieman also testified on behalf
of the plaintiff. They confirmed what Da Silva had said in so far as they were
directly involved. Thus, for example, they corroborated Da Silva’s version that
they required the engineering services rendered by him in order to perform
their respective functions on the project and testified that they had informed
Chenia accordingly; that at first, Da Silva would not provide them with the
product of these services, because he told them that he had not received an
appointment by the defendant. Subsequently, however, he did provide them
with what they required. They therefore assumed that he had eventually been
properly appointed. They could not say, of course, whether this in fact
occurred. As things turned out, however, their inability to corroborate Da Silva
in this respect was of no consequence. In the end, Da Silva’s version needed

no confirmation since the defendant closed its case without leading any
evidence and Da Silva’s evidence was never impugned.

[7] Essential to the finding in favour of the plaintiff by both the trial court
and the court a quo was their conclusion that the plaintiff had succeeded in
establishing a contractual link (locatio conductio operis) between the parties.
The defendant’s objection on appeal was in essence that that conclusion was
based on evidence not foreshadowed in the plaintiff’s pleadings. The main
argument in support of that objection, at least until the early stages of the
hearing before us, was based on the following three propositions:
(a)
On a proper construction of the summons, the plaintiff’s claim relied on
an express agreement for the rendering of professional services at a fee of
R22 852,80.
(b)
It is impermissible for a party relying on an express agreement to lead
evidence which would establish a tacit agreement.
(c)
The contract that both courts below found to have been established on
the evidence, was a tacit agreement, which constituted a finding not
permissible under (a) and (b).

[8] With regard to proposition (a) it appears to be generally accepted that a
party who seeks to rely on a contract which was tacitly concluded, must
specifically allege that the contract relied upon is a tacit one. In the absence of
such allegation it will be assumed that the contract relied upon was expressly
concluded (see eg Roberts Construction Ltd v Dominion Earthworks (Pty) Ltd
1968 (3) SA 255 (A) 260A-H; Alphedie Investments (Pty) Ltd v Greentops Ltd
1975 (1) SA 161 (T) 162T-163A). The proposition in (b) likewise seems to be
in accordance with general principles (see eg Clegg v Groenewald 1970 (3)
SA 90 (C) 94G-H; Roos v Engineering Fabricators (Edms) Bpk 1974 (3) SA
545 (A)). The acceptance of this line of argument therefore turns on the
validity of proposition (c). Can it be said that the agreement established by the
evidence was a tacit one? Or did the evidence in fact show an express
agreement? I think the latter was the case.

[9] Generally speaking, a tacit agreement is one where either the offer or
the acceptance, or both, is/are to be inferred from conduct. An express
agreement, on the other hand, is one where both these elements of the
contract were expressed in words, either orally or in writing. On a proper
analysis, the contract which formed the basis of the finding by both courts
below came into existence through the oral acceptance of a written offer. The
written offer was made by Da Silva in his letter of 31 January 2002 while the
oral acceptance of this offer by Chenia occurred during the telephone
conversation of 12 March 2002. Since both the offer and the acceptance were
thus articulated in words, there can be no suggestion of a tacit agreement.

[10] When it became apparent at the hearing that this line of argument
could not be sustained, counsel for the defendant changed tack. He then
argued that neither the letter of 31 January 2002 nor the contents of the
conversation of 12 March were sufficiently precise and detailed enough to
meet with the requirements of a contract. That, of course is a different matter.
If both the offer and the acceptance were not unambiguous, there would be
no contract at all. It would not render the contract a tacit one. In any event, I
cannot find anything ambiguous in either the written offer or the oral
acceptance. Read in context, the offer was capable of only one construction:
the plaintiff would do the engineering work required for the building project
concerned at a fee calculated in accordance with a specified tariff. Chenia's
oral instruction 'to go ahead and do the work which is necessary' is likewise
capable of only one interpretation; namely, that he accepted the offer
contained in the letter in accordance with its tenor including the plaintiff's
remuneration. Even if the terms of the letter fell short of setting out the precise
contract price, there is no reason why the parties to a contract of locatio
conductio operis, like the present, cannot validly agree, as the letter indeed
proposed, that the remuneration of the conductor will be calculated in
accordance with a specified tariff.

[11] The defendant’s further argument was exclusively reliant on the fact
that no mention was made in the plaintiff’s pleadings of what turned out to be
the second element of its case, namely the telephone conversation of 12

March 2002. What the plaintiff relied on in its pleadings, the defendant’s
counsel pointed out, was an agreement concluded on or about 31 January
2002, which, so counsel submitted, left no room for the acceptance of an offer
on 12 March 2002. Because of this, so the argument went, any evidence with
regard to that conversation was irrelevant and inadmissible. In consequence,
there was no need for the defendant to challenge that evidence, either in
cross-examination or by putting up a contradictory version. In the
circumstances the defendant was irreparably prejudiced when both the courts
allowed the plaintiff to rely on the conversation to establish an indispensable
part of its case. Support for this line of argument was sought in certain dicta
by Innes CJ in Robinson v Randfontein Estates GM Co Ltd 1925 AD 173 at
198 to the effect that ‘parties should be kept strictly to their pleadings’.

[12] These dicta must, however, be read in their full context. What Innes CJ
said (at 198) was:
‘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 enquiry. But within those
limits the court has a wide discretion for pleadings are made for the court not the court for the
pleadings.’

[13] The question is therefore one of prejudice. Can the defendant’s plea of
prejudice be sustained? For a number of reasons, I think not. First, the
departure from the pleadings complained of did not relate to the real issue
between the parties which was whether there was any agreement between
the parties at all. It did not concern the date upon which any notional
agreement could have been concluded. That much was underscored in the
defendant’s plea which not only denied the agreement alleged by the plaintiff,
but also any agreement for the rendering of professional services between the
parties (see para [3] above). The second reason is that Da Silva’s evidence
did not depart from the plaintiff’s pleadings in any material respect. A
comparison between Da Silva’s evidence and the allegations in the plaintiff’s
pleadings shows that the parties to the contract and their representatives
remained the same. So did the terms of the contract and the time period
during which plaintiff had performed its obligations in compliance with these

terms. Even the date of the offer (ie the letter of 31 January 2002) was
correctly set out in the pleadings. The only element unaccounted for was the
precise date of acceptance. This departure cannot, in my view, be said to be
material, particularly when read with the explicit statement in the defendant’s
plea that its representative, Chenia, had never even heard of Da Silva before
(see para [3] above).

[15] A third reason why the defendant’s reliance on prejudice is, in my view,
unsustainable flows from the failure by the defendant’s counsel to raise any
objection at the trial when Da Silva gave his evidence regarding the
conversation of 12 March 2002. If counsel really believed that this evidence
was irrelevant and thus inadmissible because it was not covered by the
pleadings, he should have objected there and then. The plaintiff could then
have tried to persuade the trial court that the evidence was indeed covered by
the pleadings or, otherwise, sought an amendment. A party cannot be allowed
to lull its opponent into a false sense of security by allowing evidence in the
trial court without objection and then argue at the end of the trial, or on
appeal, that such evidence should be ignored because it was inadmissible. It
seems to me that when the defendant’s counsel decided not to challenge both
the admissibility and substance of Da Silva’s evidence, he took a calculated
risk and any possible prejudice resulting from such failure must be ascribed to
the realisation of that risk and not to the plaintiff’s departure from its
pleadings.

[16] In the result, the appeal is dismissed with costs.

……………….
F D J BRAND
JUDGE OF APPEAL

Concur:
Lewis JA

Heher JA
In the Supreme Court of Appeal of South Africa

MEDIA SUMMARY –

E C CHENIA & SONS CC

APPELLANT

and

LAMé & VAN BLERK

RESPONDENT

From:
The Registrar, Supreme Court of Appeal
Date:
2006-03-17
Status:
Immediate

(1)
The respondent (the plaintiff) is a partnership of civil and
structural engineers. It instituted action against the appellant (the
defendant) in the Vereeniging Magistrate’s Court for payment of
professional fees in the amount of R22 582,80. The defendant’s
defence was a denial that it had entered into any contract with the
plaintiff. The magistrate held that the contract between the parties
relied upon by the plaintiff had been established. In consequence it
gave judgment for the plaintiff for the amount claimed. The appeal
against that judgment to the Johannesburg High Court was
unsuccessful. Today the further appeal to the Supreme Court of
Appeal was likewise dismissed with costs.

(2)
The appellant’s case on appeal relied on the rather technical
premise that the contract between the parties, which had been
established by the plaintiff’s evidence at the trial, was not fully
covered by the plaintiff’s pleadings. The Supreme Court of Appeal
held, however, that a departure from pleadings can only be held
against the party responsible if it caused prejudice to the other
side. In this case, so the court found, the defendant could not show
that it had suffered any prejudice through the plaintiff’s
amplification of the allegations in its pleadings through evidence
and that, consequently, the matter had been correctly decided in
favour of the plaintiff in the two courts below.