Unit Inspection Co of SA (Pty) Ltd. v Hall Longmore & Co (Pty) Ltd. (191/93) [1995] ZASCA 3; 1995 (2) SA 795 (AD); (23 February 1995)

Unit Inspection Co of SA (Pty) Ltd. v Hall Longmore & Co (Pty) Ltd. (191/93) [1995] ZASCA 3; 1995 (2) SA 795 (AD); (23 February 1995)

The court found that the parties agreed, at least tacitly, that 12 July 1989 was the base date for calculating escalation, as reflected in the amended quotation and purchase order. There was no evidence of any agreement to vary this term to May 1989, and the respondent's silence in response to the appellant's proposal did not amount to acceptance. The appellant failed to prove any contractual variation. Regarding costs, the respondent's unconditional tender to pay the lesser amount, together with costs to date of tender, was valid and effective, even though not made in terms of Rule 34. The tender was pleaded and made in judicio, thus protecting the respondent from liability for costs...

Citation
[1995] ZASCA 3
Parties
Appellant: Unit Inspection Co of SA (Pty) Ltd.; Respondent: Hall Longmore & Co (Pty) Ltd.
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
23 February 1995
Case Number
191/93
Procedural Posture
Civil Appeal / Appeal From Witwatersrand Local Division
Outcome
Appeal dismissed with costs.
Judges
Joubert, Smalberger, Nestadt, F H Grosskopf, Howie
Legal Topics
Contract Variation, Escalation Clause, Tender and Settlement, Costs Award
Commercial and Corporate Civil Procedure Contract Variation Escalation Clause Tender and Settlement Costs Award

Case Brief

Summary, issues, holding and outcome

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Parties

Unit Inspection Co of SA (Pty) Ltd.

Appellant

Hall Longmore & Co (Pty) Ltd.

Respondent

Procedural Posture

Civil Appeal / Appeal From Witwatersrand Local Division

Legal Issues

  1. 1 What was the agreed base date for calculating escalation under the contract.
  2. 2 Did the respondent's tender suffice to avoid liability for further costs.

Ratio Decidendi

The court found that the parties agreed, at least tacitly, that 12 July 1989 was the base date for calculating escalation, as reflected in the amended quotation and purchase order. There was no evidence of any agreement to vary this term to May 1989, and the respondent's silence in response to the appellant's proposal did not amount to acceptance. The appellant failed to prove any contractual variation. Regarding costs, the respondent's unconditional tender to pay the lesser amount, together with costs to date of tender, was valid and effective, even though not made in terms of Rule 34. The tender was pleaded and made in judicio, thus protecting the respondent from liability for costs...

Court Disposition

Appeal dismissed with costs.

Orders

  • The appeal is dismissed with costs.
  • The appellant is to pay the costs of the condonation application for late filing of the power of attorney.