Discovery Life Limited v Barthram (71989/2013) [2015] ZAGPPHC 110 (6 March 2015)

Discovery Life Limited v Barthram (71989/2013) [2015] ZAGPPHC 110 (6 March 2015)

The court held that the defendant's plea, alleging a tacit term entitling the defendant to remuneration in the event of unlawful termination or breach by the plaintiff, must be considered in the context of the contract's termination and consequence clauses. The alleged tacit term does not contradict the express terms or offend the nonvariation clause, as it supplements rather than varies the agreement. The plea is not vague or embarrassing, and the exception is based on a misconception of the nature of tacit terms. The exception was dismissed with costs.

Citation
[2015] ZAGPPHC 110
Parties
Applicant: Discovery Life Limited; Respondent: Percy George Edward Barthram
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
6 March 2015
Case Number
71989/2013
Procedural Posture
Civil Application / Exception to Plea
Outcome
Exception dismissed with costs.
Judges
M F Legodi
Legal Topics
Tacit Terms, Nonvariation Clause, Contract Interpretation, Exception Procedure
Commercial and Corporate Civil Procedure Tacit Terms Nonvariation Clause Contract Interpretation Exception Procedure

Case Brief

Summary, issues, holding and outcome

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Parties

Discovery Life Limited

Applicant

Percy George Edward Barthram

Respondent

Procedural Posture

Civil Application / Exception to Plea

Legal Issues

  1. 1 Whether the defendant's plea alleging a tacit term is vague and embarrassing.
  2. 2 Whether the alleged tacit term contradicts the written agreement and its nonvariation clause.
  3. 3 Whether the defendant's plea sets out sufficient material facts to sustain a defence.

Ratio Decidendi

The court held that the defendant's plea, alleging a tacit term entitling the defendant to remuneration in the event of unlawful termination or breach by the plaintiff, must be considered in the context of the contract's termination and consequence clauses. The alleged tacit term does not contradict the express terms or offend the nonvariation clause, as it supplements rather than varies the agreement. The plea is not vague or embarrassing, and the exception is based on a misconception of the nature of tacit terms. The exception was dismissed with costs.

Court Disposition

Exception dismissed with costs.

Orders

  • The exception noted by the plaintiff is dismissed.
  • The plaintiff is ordered to pay the costs of the application.