G Phadziri & Sons (Pty) Ltd vs Do Light Transport (Pty) Ltd and Another - (20 Feb 2023)

Clauses in which the annexures were mentioned had to be read not in isolation, but as part of the whole agreement

Contract

The issue in the appeal was whether an agreement concluded between the appellant, the first respondent and the second respondent was: (a) void for vagueness; and (b) necessitated a tacit term to be read into it as to its duration.

It is trite that a provision in a contract must be interpreted not only in the context of the contract as a whole, but also to give it a commercially sensible meaning. The clauses in which the annexures were mentioned had to be read not in isolation, but as part of the whole agreement. The high court was correct in holding that the tripartite agreement was not void for vagueness. This was because on any conceivable basis, when Phadziri invited Do Light to be its sub-contractor, both knew about the timetable for Do Light’s scheduled trips on the affected routes. It was therefore contrived for Phadziri to then suggest that the routes were not known, because the timetable was not attached to the tripartite agreement.

The parties seriously entered into the tripartite agreement and considered it capable of implementation, and, in fact, implemented it. Further, clauses 3.1 and 4.8 had to be read so as to give them, and the tripartite agreement, a commercially sensible meaning. Thus, the tripartite agreement had to be preserved and enforced. Turning to whether a tacit term was to be read into the agreement as to its duration, the Supreme Court held that the express duration term of the tripartite agreement had to be preserved and honoured. This was because, there was no evidence that the parties had meant for the duration of the tripartite agreement to be anything other than what it expressly said. Further, the term which Phadziri sought to impute into the agreement was in conflict with its express term as to its duration. It followed that the tripartite agreement was enforceable until the implementation of the integrated public transport services by the Department.

Tags : AGREEMENT CLAUSES IMPLEMENTATION