REPUBLIC OF SOUTH AFRICA

THE SUPREME COURT OF APPEAL
OF SOUTH AFRICA

Case number 192/05
Not reportable

In the matter between:

RA BURRISS (PTY) LTD t/a
SERVICE ELECTRICAL                                           APPELLANT

and

EFSTRATIOS MOUMTZIS                       FIRST RESPONDENT
ALASIA RENE MOUMTZIS

SECOND RESPONDENT

CORAM:

FARLAM, MTHIYANE JJA et MAYA AJA

HEARD:

17 FEBRUARY 2006

DELIVERED:
23 MARCH 2006

Neutral citation: This judgment may be referred to as Burris (Pty) Ltd t/a Service
Electrical v Efstratios Moumtzis and Another [2006] SCA  26
(RSA).

________________________________________________________

JUDGMENT
________________________________________________________

FARLAM JA

[1] The appellant in this matter, an electrical contractor, instituted action in
the Port Elizabeth magistrate’s court against the respondents, the trustees of
a trading trust, which had leased commercial premises in a shopping centre in
Newton Park, Port Elizabeth, claiming an amount of R47 991.11, which it
alleged was the balance of the amounts owed to it by the respondents in
terms of an oral contract for work to be done at the premises of which the
respondents were the tenants. The respondents defended the action,
pleading that they had paid to the appellant all amounts they owed it and
averring further that they had overpaid the appellant in an amount of R57
008.40, which was the subject of a counterclaim which they brought against
the appellant. The matter came before an additional magistrate for the district
of Port Elizabeth, who dismissed the appellant’s claim but gave judgment in
favour of the respondents on their counterclaim.

[2] An appeal brought by the appellant against this judgment was
dismissed by the Eastern Cape High Court and it now appeals to this Court
(with the leave of the High Court) against its judgment dismissing the appeal.
Before the matter was argued in this Court the parties agreed that if the
appellant’s claim were to be upheld on appeal the judgment should be given
in its favour in an amount of R44 522.28 and that if the appeal were dismissed
the judgment on the respondent’s counterclaim in the amount of R57 008.40
should stand.

[3] There was no dispute between the parties as to the work done by the
appellant nor as to the reasonableness of its charges therefor. The
respondents agreed that they were liable for some of the work done by the
appellant but contended that they were not liable for the rest of the work and
that the appellant should have looked to the landlord of the leased premises,
one Cohen in his capacity as trustee of the West Street Property Trust, for
payment therefor.

[4] Before the lease between the landlord and the respondents was
concluded Mr D Cohen, who was developing the shopping centre in which the

leased premises are situated, asked Sean Burriss, the appellant’s managing
director, to furnish him with a price for the electrical installation to be done at
the premises to be leased, on which it was envisaged that a Spar store
business would be conducted by the tenants. On 19 August 1998 Mr Burriss
sent Mr Cohen what he described as an ‘offer’, in which he quoted a figure of
R390 956.00 for certain electrical installation work to be done on the
premises: the work to be done was particularised  on the second page of the
offer. The third page was headed ‘Commercial Terms’. It contained four
numbered paragraphs. In the first it was stated that the price was valid for 30
days and excluded VAT. The second contained the dates by which the work
was to be completed. In the third, which dealt with ‘Payment terms’, were set
out the dates on which payment of the appellant’s price was to be made, viz
30 November, 15 December and 30 December, and the appellant’s ‘general
conditions of sale’ were made applicable. Subparagraph b read as follows:
‘b
Orders for extra work will only be carried out when instructed to do so in writing.
Payment for extras will be due on the 15th January 1999.’
The fourth paragraph read as follows:
‘4.
General
Although care has been taken to ensure that nothing has been omitted and all is to
the Spar Eastern Cape specification document as there are no consultants’ drawings
or design for the above Spar we assume no responsibilities for any oversight in this
quotation.
On completion of the final design by us or a consulting engineer the extra’s and
omissions will be calculated and the price adjusted accordingly.’

[5] Before Mr Cohen accepted the appellant’s quotation the lease relating
to the premises was concluded. Among the documents annexed to the lease
were the first two pages of the appellant’s quotation. The third page, which
included the adjustment provision, was not annexed.
Clause 3 of Annexure A of the lease, which contained what were described as
the ‘General Conditions of Lease’, read as follows:
‘The Landlord shall carry out certain improvements to the premises as set out in Annexure
“H”, which improvements shall be effected:
3.1
prior to the Possession Date;
3.2
in accordance with the Spar Specifications unless agreed in writing by SPAR but

subject to the financial limit contained in annexure D and clause 1.1.6.’
Clause 1.1.6 contained a definition of ‘the Specifications’ which read as
follows:
‘1.1.6
“The Specifications” means the plan and specifications which are annexed hereto as
Annexure “H”, which plan and specifications reflect the improvements to be made to the
Premises by the Landlord prior to the Possession Date subject to the maximum expenditures
as set out in Annexure “D”, provided the work in items 1,2,3 and 4 of Annexure “D” as detailed
in the quotations annexed to Annexure “D” marked “D1”, “D2”, “D3” and “D4” respectively” is
performed by the Landlord in accordance with those quotations.’
Annexure ‘D’ is headed ‘Schedule of Limits of (sic) re Spar Building and
Finishing Specifications (including Material and Labour).’ It read as follows:
‘1.
All wall tiles and floor coverings and skirtings (including all porcelain tiles, carpets,
NCI tiles, mild steel floor tiles, vinyl floor tiles, porcelain skirtings, NCI – ceramic skirting tiles,
vinyl cove skirtings etc.) As per Quotation  D1.
2.
All ceilings and bulkheads as per Quotation D2.
3.
All electrical power supply and lighting as per Quotation D3.
4.
All airconditioning and fire detection system as per Quotation D4.
5.
No Hoists.
6.
No Trolley Bay.
7.
No Off-loading Dock.’
In paragraph 1 the words ‘as per quotation D1’ were added in handwriting and
replaced the words ‘limited to R213 400.00’ which were deleted. Similarly the
references to quotations D2, D3 and D4 were inserted in handwriting and
replaced phrases limiting the landlord’s obligation to R74 000.00, R390
000.00 and R327 000.00 respectively. The quotation annexed as D1, which
related to the tiling and floor covering, was for an amount of R213 400. The
quotation annexed as D2, which related to the ceilings, was for an amount of
R74 000. The appellant’s quotation was annexed as D3 but as I have said,
the last page containing the ‘Commercial terms’ was not annexed. The
quotation annexed as D4, which related to the airconditioning and ventilation,
was for an amount of R327 985.

[6] None of the quotations annexed contained a clause providing for an
adjustment of the quoted price. Annexure ‘H’ of the lease was a copy of the
Spar Eastern Cape Building and Finishing Specifications. Clause 1.1 of this
document read as follows:

‘1.1
Upon reaching agreement to develop and lease the premises to the SPAR Member,
the owner or the appointed Developer acting on behalf of the owner shall be required to carry
out the building and finishing specifications contained in this document as required by the
SPAR EASTERN CAPE Development Department.’
It also contained, amongst other things, specifications for an off loading dock,
two hoists (where necessary), and a ramp to facilitate trolley receiving.

[7] When the appellant commenced work on the leased premises a
problem arose because there were no detailed drawings detailing the work to
be done. The second respondent, who acted on behalf of herself and the first
respondent in dealing with the appellant’s representative, Mr Burriss, wanted
an electrical consultant appointed to prepare a marked up drawing of the
premises. Mr Cohen was originally unwilling to appoint a consultant but he
eventually instructed Mr Burriss to appoint a Mr I Rudman as consultant. Mr
Burriss then appointed Mr Rudman, assuring him that he would make sure
that he was paid his fee and that he would claim it thereafter from Mr Cohen.
(In the event Mr Burriss paid Mr Rudman’s fee and by the time he testified he
had not been reimbursed by Mr Cohen.)

[8] In addition to insisting on the appointment of an electrical consultant
the second respondent also made it clear to Mr Burriss from the start that she
wanted a lot of additional electrical work done, which was not included in the
appellant’s quotation to Mr Cohen. Some of this work was provided for in the
Spar Specifications but part of the work required by the second respondent
went beyond what was set out in the specification.

[9] The appellant did all the extra work required by the second respondent.
Mr Burriss testified that it only did so after the second respondent had agreed
that she and the first respondent would pay therefor. He said that because in
terms of the appellant’s contract with Mr Cohen it was limited to claiming for
work done which was listed on the second page of the quotation and he had
no claim against Mr Cohen for extra work in view of the fact that the appellant
had not been instructed by him in writing to do the work.

[10] The second respondent testified on the other hand that she had only
agreed to pay for such additional work as was not required to make the
premises comply with the Spar Specification and that the appellant had to
look to Mr Cohen for payment of work covered by the Spar Specification. She
averred that the landlord was obliged under the lease to ensure that the
premises complied with the specification and that she had not been prepared
to pay the appellant for this work and then look to Mr Cohen for
reimbursement. According to her evidence she did not like or trust Mr Cohen.
The respondents’ case was that the appellant had the right under its contract
with Mr Cohen to adjust its price so as to cover all the extra work which was
needed to comply with the Spar Specification.

[11] In finding in favour of the respondents the magistrate held that the
version of the contract given by the second respondent was more probable
than that given by Mr Burriss.
He said:
‘[I]t is highly unlikely that the obviously hardbitten and shrewd experienced business woman,
Mrs Moumtzis, [the second respondent] would meekly or recklessly agree to pay what the
contract with Cohen said Cohen should pay. That she would willingly be ready to pay for her
luxurious items over and above the Spar specifications makes sense to me. Plaintiff always
had and still has the backdoor of par. 4 on page three of his quotation to fall back on and
might despite protestation have been wiling to take the risk of proceeding with the work which
was after all a very large contract.
If plaintiff perhaps thought that she would be an easier target than the difficult Cohen he has
made a mistake. This is the counter argument to [the appellant’s attorney’s] suggestion that
Mrs Moumtzis would much rather have locked horns with Burris than with Cohen.’

[12] In its judgment on appeal the court a quo held that the magistrate had
not misdirected himself in rejecting Mr Burriss’s version of the contract and
that the probabilities strongly supported the respondents’ version.

[13] The respondents’ version is essentially based on two propositions:
1)
the appellant could in terms of its contract with Mr Cohen adjust its
price upwards to claim all extra amounts arising from work done to make the

premises comply with the Spar Specification; even if it was not instructed in
writing to do such work.
2)
Mr Cohen was obliged under the lease to ensure that the premises did
so comply.

[14] Although I doubt, in view of the express wording of clause 1.1.6 and
Annexure ‘D’ of the lease, whether it is correct to say that Mr Cohen was
obliged under the lease to pay for the work done so that  the premises
complied with the Spar Specification, I am prepared to assume, without
deciding the point, that the respondents’ second proposition may be correct.

[15] I proceed to consider whether their first proposition is correct.

[16] I do not agree that in the circumstances of this case the appellant was
entitled to claim from Mr Cohen any extra amount for work not covered by the
second page of its quotation done in terms of the Spar Specification. In
arguing this part of the case, Mr Huisamen quoted both paragraphs of clause
4  of the appellant’s quotation and submitted that in other words, as between
Mr Cohen and the appellant the appellant was ‘entitled to adjust its quotation
upwards to bring it in line with the full costs which would have been necessary
to supply the premises to the respondents in accordance with the minimum
Spar Specifications’.

[17] I do not think that clause 4 should be so interpreted. The first
paragraph is in terms a rejection of liability. The appellant is making it clear
that it will not be responsible for omissions in the quotation and any respect in
which the work listed on the second page falls short of what the Spar
Specification requires. The second paragraph clearly envisages that a final
design is required and that once it is completed the extras and omissions will
have to be calculated so that the price can be adjusted. But the question to be
answered is: what are the extras referred to? The obvious answer is: those
referred to in clause 3. b. In this regard it is important to note that the work

listed on the second page was to be paid for in three instalments on 30
November, 15 December and 30 December, while payment for any extra work
done would have to take place on 15 January 1999. This clearly would include
extras covered by the adjustment referred to in clause 4, paragraph 2. This
link between clause 3. b and clause 4 paragraph 2 reinforces the view that the
extras mentioned in clause 4 paragraph 2 can only be extras covered by
clause 3. b. Once it is accepted that Mr Cohen never instructed the appellant
to do any extra work, whether in writing or otherwise, it becomes clear that the
appellant would not have been able to have claimed any extra amount from
Mr Cohen. Mr Burriss’s evidence on the point that he was aware of this must
in my view be accepted. This conclusion is destructive of the respondents’
case. It is impossible to accept that Mr Burriss would have agreed with the
second respondent to do all the extra work requested but only to look to the
respondents for payment for those portions not covered by the Spar
Specification because that would mean that he would have been agreeing to
do the other work for nothing. If the respondents’ version were correct one
would have expected him to have asked Mr Cohen for written instructions to
do the work in question and only to do it once such instructions had been
received. It is not suggested that he did that. It must also be borne in mind
that the appellant could have walked off the job after doing the work listed on
the second page of its quotation.

[18] The second respondent, on the other hand, was anxious to open the
business and start trading. If the second proposition on which their case is
based is correct they would be able to claim the extra amount expended to
make the premises comply with the Spar Specification from Mr Cohen. If on
the other hand their second proposition is not correct, then that would provide
a reason for the second respondent to have agreed with Mr Burriss that she
and the first respondent would pay for all the additional work to be done.

[19] In my opinion the magistrate misdirected himself in holding that the
appellant had, as he put it, ‘the backdoor of par 4 on page three of his
quotation to fall back on’. It is accordingly necessary for us to decide the case

afresh on the record. In my view once the respondents’ first proposition is
rejected, their whole case crumbles and the probabilities strongly support the
appellant.

[20] Mr Huisamen also referred in the course of his argument to a passage
in Mr Burriss’s evidence where he appeared in the course of cross-
examination to concede his case. I am satisfied, however, that it is clear from
his later evidence on the point that the concessions he made were made in
error and cannot be relied on to justify a finding that the second respondent’s
evidence is to be preferred to that of Mr Burriss.

[21] It follows in my view that the magistrate should have given judgment in
favour of the appellant with costs and dismissed the respondents’
counterclaim, again with costs.

[22] The following order is made:

A.
The appeal is allowed with costs.
2.
The order made by die court a quo is set aside and replaced by
the following:
‘1.
Judgment for the plaintiff with costs in an amount of R44
522.28.
2.
The defendants’ counterclaim is dismissed with costs.’

……………..
IG FARLAM
JUDGE OF APPEAL
CONCURRING
MTHIYANE JA
MAYA
AJA