Thornton v Fleet Africa Eastern Cape (Pty) Ltd (EL 1000/08, ECD 2400/08) [2011] ZAECELLC 10 (27 October 2011)

Thornton v Fleet Africa Eastern Cape (Pty) Ltd (EL 1000/08, ECD 2400/08) [2011] ZAECELLC 10 (27 October 2011)

The court found that the written contract between the parties contained a non-variation clause, which required any amendment or variation to be in writing and signed by both parties. The plaintiff failed to prove the existence of a written variation or new agreement regarding additional fees. The evidence did not establish that any binding agreement for extra payment was reached at the meeting of 26 February 2008. The clause cited by the plaintiff merely contemplated further discussion prior to consensus, which did not occur. Consequently, the only enforceable agreement was the original letter of engagement, under which the defendant had already paid the fixed fee. The additional work...

Citation
[2011] ZAECELLC 10
Parties
Plaintiff: Grant Thornton; Defendant: Fleet Africa Eastern Cape (Pty) Ltd
Court
Eastern Cape High Court, East London Local Court
Jurisdiction
South Africa
Judgment Date
27 October 2011
Case Number
EL 1000/08, ECD 2400/08
Procedural Posture
Civil Trial / Application for Absolution From the Instance at the Close of Plaintiff's Case
Outcome
Defendant absolved from the instance with costs.
Judges
E Revelas
Legal Topics
Contract Variation, Non Variation Clause, Fixed Fee Agreement, Additional Services, Absolution From Instance
Commercial and Corporate Contract Variation Non Variation Clause Fixed Fee Agreement Additional Services Absolution From Instance

Case Brief

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Parties

Grant Thornton

Plaintiff

Fleet Africa Eastern Cape (Pty) Ltd

Defendant

Procedural Posture

Civil Trial / Application for Absolution From the Instance at the Close of Plaintiff's Case

Legal Issues

  1. 1 Whether the defendant is liable for payment of additional fees for extra auditing work beyond the fixed fee agreement.
  2. 2 Whether any binding agreement for additional fees was reached at the meeting of 26 February 2008.
  3. 3 Whether the non-variation clause in the written contract precludes any claim for additional fees not agreed to in writing.

Ratio Decidendi

The court found that the written contract between the parties contained a non-variation clause, which required any amendment or variation to be in writing and signed by both parties. The plaintiff failed to prove the existence of a written variation or new agreement regarding additional fees. The evidence did not establish that any binding agreement for extra payment was reached at the meeting of 26 February 2008. The clause cited by the plaintiff merely contemplated further discussion prior to consensus, which did not occur. Consequently, the only enforceable agreement was the original letter of engagement, under which the defendant had already paid the fixed fee. The additional work...

Court Disposition

Defendant absolved from the instance with costs.

Orders

  • The defendant is absolved from the instance.
  • The plaintiff is ordered to pay the costs of the defendant.