REPUBLIC OF NAMIBIA

IN THE HIGH COURT OF NAMIBIA

CASE NO. I 3118/2006

In the matter between:

HEIDRUN DIEKMANN INTERIOR
LIFESTYLES CC ...............PLAINTIFF

and

L & B COMMERCIAL SERVICES
(PTY) LTD …..................DEFENDANT

CORAM: DAMASEB, JP

Heard: 07–09/07/2009;
20-22/09/2010

Delivered: 18 June 2012

_______________________________________________________

JUDGMENT

DAMASEB,
JP: [1] The plaintiff’s
claim, as amended, is set out as follows:

“4.
At or about end of November 2005 and at Windhoek, a written,
alternatively partly written and partly oral agreement was concluded
between the plaintiff and the defendant, the latter was duly
represented by Heidrun Diekmann or D & F Design CC. The written
part of the agreement is made up by four annexures “A”,
“B”, “C” and “D”…

5.1
Defendant accepted liability to plaintiff for plaintiff’s
interior design fees in the amount of N$ 143 500 plus VAT (thus
totalling $ 165 025) which was included in the detailed quote of a
close corporation D& F Designs CC as per annexure “A”
and whereof the total of such quote was included in the plaintiff’s
quote as per annexure “B” and referred to on page 3
thereof.

5.2
The aforesaid sum of $ 165 025 would become due and payable upon
completion by plaintiff of its obligations concerning the rendering
of the interior design services.”

[2] The alternative claim, in the
event that the main claim fails, is set out as follows:

“At
or about the end of November 2005 and at Windhoek, a written
alternatively a partly written and partly oral agreement was
concluded between a Namibian close corporation “D & F
Designs CC (duly represented by one D Lindemeier ) and defendant
(being duly represented by Mike Böttger). The written
alternatively written part of the said aforesaid agreement is made up
of annexures “A” and D, alternatively “A”, B
and “D” hereto.”

[3] The express, alternatively
implied, in the further alternative tacit terMrs of the agreement are
then said to be amongst others that:

“Defendant
undertook to pay an amount of N$143,500.00 to the plaintiff in
respect of interior design fees’’ upon completion of such
services which it is alleged she did. It is alleged that the
intention of the parties was that D & F Designs concluded the
agreement for interior design on behalf of the plaintiff which was
accepted by the latter thus binding defendant. It is alleged further
that by word or by conduct the plaintiff notified the defendant that
the benefit of N$143,500.00 was accepted by the plaintiff as a result
of which an agreement came into existence. VAT is then also claimed,
making up the total claim of N$165,025.00.”

[4] The basis on which the
plaintiff seeks damages against the defendant is clearly summed up by
Mr. Bourbon in his heads of Arguments that I find it helpful to quote
verbatim:

“what
is now alleged is one of three things. Firstly, it seeMrs to be
alleged that by accepting the quotation from D & F Designs CC for
the supply of furniture the defendant company also accepted liability
for the interior design fee as being payable to the plaintiff, even
though in the letter of 28 November 2005 it is said to be payable to
Mrs. Diekmann personally. Secondly, it is alleged that by accepting
the quotation of 29 November 2005 issued in the name of Heidrun
Diekmann Lifestyle the liability to pay the interior design fee to
the plaintiff was accepted because the quotation incorporated into it
the furniture detailed in the quotation of D & F Designs CC and
thereby accepting the quotation there was an acceptance of the
liability to pay the interior design fee. Thirdly, as an alternative
claim, it is alleged that the contract between D & F Designs CC
and the defendant company was a contract in part( restricted to the
interior design fee specifically stated to be for Mrs. Diekmann) for
the benefit of a third party, namely the plaintiff, which benefit the
plaintiff has accepted.”

[5] The defendant’s case is
two-pronged: First, it denies that it contracted with the plaintiff
to provide its interior design services. Secondly, it denies that the
plaintiff in fact provided it with any interior design services. The
plaintiff bears the onus on both scores. It must on a balance of
probabilities prove that there was a meeting of the minds for the
provision of interior design services; and it must still on balance
of probabilities prove that it actually rendered interior design
services. It does not follow that if the contract is proved,
performance follows or should be assumed. If the plaintiff, to the
required standard of proof, fails to prove the rendering interior
design services to the defendant, the latter is entitled to
absolution.

[6] It is common cause that
Heidrun Diekmann Lifestyles CC did not exist at the time of the
alleged contract. That mush is clear from paragraph 8 of the amended
particulars of claim and the further particulars provided by the
plaintiff.

[7] In its amended further
particulars the defendant had pleaded that in “accepting the
quotation (which is not addressed to it) for the supply of office
furniture dated 29 November 2005, the Defendant concluded a contract
for the purpose in the sum of N$680 835-46 plus VAT with Heidrun
Diekmann Lifestyles CC, which the defendant believed to be a
corporate entity.”

[8] That led to the plaintiff in
replication pleading estoppel against the defendant to the effect
that the defendant is by its alleged actions (by words or by conduct)
estopped from denying liability for the interior design fees of the
plaintiff. That because, in the relevant correspondence, an interior
design fee due to Heidrun Diekmann Lifestyles CC is mentioned and was
allegedly accepted by the defendant in a letter dated 30 November
2005 under the signature of Mr Böttger, a director of the
defendant; and it is suggested in the evidence also based on what is
allegedly the acceptance of the interior design service performed by
the plaintiff’s Mrs Heidrun Diekmann.

[9] The defendant is the business
arm of an incorporated company carrying on the practice of legal
practitioner as LorentzAngula Inc. Previously they practiced under
the name and style of Lorentz & Bone. It is not disputed that in
2004 the directors of LA Inc. took a decision to relocate from the
offices at Frans Indongo Building in the City Centre and to become
anchor tenants in a modern office building, through the defendant –
their commercial arm. It is also not in dispute that the move to the
new, as – yet – to be built office, was of some urgency.

[10] The defendant contracted an
architect, Leon Barnard Architects, to plan and design the building.
They then appointed D & F Designs to furnish the new office
building. The plaintiff somehow became aware of the architect’s
involvement with the project and wished to take advantage of the
business opportunities arising from the new office building. There is
a dispute about the exact role and capacity in which she did so, but
it is common cause that the plaintiff accompanied the architect to a
meeting with some directors of the defendant where the project was
discussed. That meeting took place in September 2005 and was attended
by the architect’s Mr Leon Barnard, Mrs Diekmann and the
defendant’s directors Messrs Hinrichsen and Böttger.

[11] Four written documents
(annexures A-D to the amended particulars of claim) are relied on by
the plaintiff to constitute the written part of what is alleged to be
a written, alternatively partly written partly oral contract that
allegedly constitutes ‘acceptance of liability’ by the
defendant to pay plaintiff’s ‘interior design services
fee’. I will set out briefly the content of each document in so
far as it is relevant to the plaintiff’s claim. Annexure A is
on D & F Designs’s letterhead, is dated 28 November 2005,
and is addressed to Lorentz & Bone. It is headed “Quotation
on supply and installation of office furniture”. It states,
amongst others, “We hereby have pleasure in quoting you on the
supply and installation of the office furniture for your new offices.
The furniture quoted is as shown on the supplied site layout and seen
in the brochures. The design is based on the drawings supplied by the
architect and our various discussions.” It then goes on to
provide the “price of all furniture” as –
1,435.000” and states an “Interior design fee for Mrs H.
Diekmann as – 143.500.00”. The letter is signed by Mr D
Lindemeier, one of two members of D & F Designs CC.

[12] Annexure B is a letter on a
letterhead of “Heidrun Diekmann Lifestyles”, dated 29
November 2005 and is addressed to Lorentz & Bone. It is signed by
Heidrun Diekmann. The subject is stated as “Furniture and
fittings new offices”. It proceeds to quote for “furniture
and accessories” for various for reception, bar/lounge, seating
3^rd floor, terrace 3^rd floor, crockery and
cutlery for bar, first and second floor furniture items, office
accessories for executives and assistants. It proceeds to reflect a
“total amount (Heidrun Diekmann Lifestyles CC, at 680,835.46
and including 15 % VAT ‘at – 102.125.32.” It also
sets out an item in respect of D & F Designs, including VAT and
specifically records in respect of D & F Designs “Furniture
as per detailed quote D & F Designs”. At the bottom of the
letter, and again in respect of D & F Designs it is stated “D
& F Designs- TerMrs and conditions to be set out.”

[13] Annexure C is a letter on
the letterhead of L&B Commercial Services (Pty) Ltd, dated 30
November 2005 for the attention of ‘Heidrun’ and is
addressed to ‘Heidrun Diekmann Lifestyles’. The subject
is stated as “Supply and installation of office
furniture//Auspannplaza”. It is signed by Mr Mike Böttger
as director and states:

“We
hereby confirm our acceptance of your quotation for office furniture
dated 29^th
of November 2005. We wish to record, as you know, that we will
commence practicing at Auspannplaza as from the first of March 2006
and that the fitting and installation of the furniture must therefore
be completed prior to that date.”

[14] Annexure D is again on the
letterhead of L&B Commercial Services (Pty) Ltd and is addressed
to D & F Designs CC, is dated 30 November 2005 and the heading is
stated to be “Supply and installation of office furniture
//Auspannplaza”. It records the following:

“We
hereby confirm our acceptance of your quotation for office furniture
dated 28^th
of November 2005. We further record that delivery and fitting of the
furniture for the second and third floors will be completed no later
than the 1^st
of April 2006, and that delivery and fitting of the top floor will be
completed by no later than the 10^th
of March 2006. We wish to record, as you know, that we will commence
practicing at Auspannplaza as from the first of March 2006 and that
the fitting and installation of the furniture must therefore be
coordinated with the firm’s principals.”

[15] The question that arises in
this case is whether the defendant with full knowledge of what was
being offered, contracted with the plaintiff for her to render
interior design services. It is stating the obvious that as pleaded
by the plaintiff, the above documents are the ones from which the
Court must come to the following conclusions:

1. 
   That the present plaintiff was
   contracted by the defendant to provide interior design services for
   the amount pleaded in the particulars of claim;

   
   

2. 
   That D & F Designs concluded
   a contract with the defendant for the benefit of the present
   plaintiff in respect of interior design services for the amount
   claimed in the particulars of claim;

   
   

3. 
   That by mistake of the present
   plaintiff or Mrs Diekmann, the common intention of the parties for
   the present plaintiff (at the date of contract known as Elephant
   Empire Trading CC) was not named in Annexure B and therefore that
   document must be rectified to refer to Elephant Empire CC.
   

   
   

[16] At the very outset I wish in
the latter respect to agree with the submission made by Mr Bourbon
for the defendant that it is common cause that the claim for
rectification is aimed at:

1. 
   Only annexure
   B, being Mrs Diekmann’s letter written on Heidrun Diekmann
   Lifestyle’s letterhead;¹

   
   

2. 
   And does not
   seek rectification of Annexure A²
   , C³
   or D.

   
   

Necessary background to claim

[17] It is important to sketch
the history of this matter, from the moment the claim was first filed
to the present, as that materially impacts the outcome of the case.
The claim started life on 13 October 2006 with only the present
plaintiff cited as plaintiff against two defendants: the present
defendant (L&B Commercial Services (Pty) Ltd) as first defendant
and D & F Designs CC as the second defendant. As against the
first defendant the claim was on the straightforward basis of the
alleged written, alternatively partly written and partly oral
agreement exactly in the same terMrs as at present alleged. There was
no mention of rectification. The claim against the second defendant
was premised on joint and several liability with the present
defendant, the one paying the other to be absolved, and was in the
alternative to claim one. It was alleged that D & F Designs had
agreed with the plaintiff to include the latter’s design fee in
its furniture supply and installation quote to the defendant and that
following such quote the first defendant would assume liability to
the plaintiff for interior design fee whereupon it would become due
and payable upon completion of the interior design services. Such
interior design services having been included in the D&F Design
quote as aforesaid and being accepted by the first defendant and the
plaintiff having rendered the interior design service, D&F Design
- in breach of its obligations in terMrs of the aforesaid agreement-
refuses or fails to pay the aforesaid design fees to plaintiff
despite being liable for same and such amount being due, owing and
payable to plaintiff.”

[18] Both defendants entered
appearance to defend and the plaintiff applied for summary judgment
which was successfully resisted. D & F Designs CC’s
Lindemeier deposed to the affidavit in opposition and stated that the
inclusion of plaintiff’s design fee in the quote to L&B
Commercial purposes was only for ‘presentation purposes’
and denied that it had ever entered into an agreement with the
plaintiff to assume liability towards the plaintiff for the payment
of its alleged interior design fees. Lindemeier stated that L&B
Commercial Services and the plaintiff had entered into a separate
contract in respect of the latter’s interior design fee and
that it had nothing to do with that contractual relationship.

[19] Mr Hosea Angula, a director
of L&B Commercial Services, in the opposing affidavit stated that
Mrs Diekmann conducted business with L&B Commercial Services in
different names, firms and entities including Elephant Empire CC,
Heidrun Diekmann Lifestyles, Heidrun Diekmann Lifestyles CC, Heidrun
Diekmann, and Heidrun Diekmann Interior Lifestyles CC. He made clear
that they never approached Mrs Diekmann or the plaintiff or solicited
their services as interior designers. He maintained that they had not
given any instruction or professional mandate to Mrs Diekmann or the
plaintiff for the rendering of interior design fees. They had only
dealt with Mrs Diekmann in so far as she sold furniture and was to
receive commission for doing so. She invoiced L&B Commercial
Services for furniture thus sold under Elephant Empire Trading CC. Mr
Angula explained that the quotes in which the interior design fee was
mentioned were accepted by L&B Commercial Services “without
much time having been spent on analysing the detail of” the
quotes.

[20] Both defendants proceeded to
plead after the summary judgment was successfully resisted. On 26
November 2007, the plaintiff’s particulars of claim were
amended. Mrs Heidrun Diekmann was added as second plaintiff in her
personal capacity and a claim included in her personal name in the
alternative to the claim of Heidrun Diekmann Interior Lifestyles CC.
A claim for rectification was then included in respect of Elephant
Empire CC.

[21] In its plea to the amended
particulars of claim which included a prayer for rectification, the
Defendant pleaded, amongst others, that “any error in the
document of 29 November 2005...was a unilateral error on the part of
either the plaintiff’s or a third party, which does not in law
afford a basis for the claim of rectification.” It also denied
that any interior design fee was rendered or that it had contracted
with the plaintiff for the provision of such service.

[22] On 29 October Mrs Heidrun
Diekmann brought an application to be joined in her personal capacity
as second plaintiff. On the same date the claim against D & F
Designs CC was withdrawn and wasted costs tendered.

The evidence considered

The plaintiff

[23] The only
witness for the plaintiff was Mrs Heidrun Diekmann. Ms.
Diekmann, as the first plaintiff, is the sole member of Heidrun
Diekmann Interior Lifestyle CC. She testified that at the request of
Mr. Barnard of Leon Barnard Architects, she attended a meeting with
some of the directors of the defendant in September 2005 to discuss
the possibility of her rendering interior design services to the
defendant. At the meeting she presented her ideas as regards the type
of tiles, material carpets, office furniture and their fabrics,
chairs as well as paint samples to be used, to the defendant’s
directors present. She had brought along samples to this first
meeting for presentation. Mrs Diekmann testified that she got the
impression from the directors present that the presentation went well
and she thereafter referred to Mr. Böttger as the person
responsible for the project and with whom all necessary arrangements
should be made.

[24] Mrs Diekmann testified that
she thereafter set up a series of meetings with Mr. Böttger, Mr.
Hinrichsen, Mr, Bosseau, Ms. Coleman, Mr. Angula, and Mr. Ruppel with
the aim to get any information about the premises and what the
directors of the law practice wished to have on the premises.
According to her, following those meetings, she made all manner of
arrangements with suppliers to meet the directors’
expectations, including studying the architect’s drawings,
handed in as exhibits E1-E9; principally to advise how to integrate
the furniture (old with the new). The catalogue of D & F Designs
CC was used to select the various furniture that were, in her
opinion, suitable for the practice and a proposal was made to the
defendant.

[25] Mrs Diekmann testified that
she attended a subsequent meeting called by the architects, where
Messrs Ruppel, Böttger, Wohlers, and Potgieter were present as
directors of the defendant or of the law practice. The point of the
meeting was, she testified, for the presentation of the proposal she
prepared. At the end she suggested to the directors the purchase of
furniture from Della Rovere, an Italian Furniture Manufacturer
represented in Windhoek by D & F Designs. This, she said, was
accepted by the directors. As a result, Mrs Diekmann testified, she
undertook a trip to Italy in October to discuss the proposal with the
manufacturer. She said that she informed Mr. Ruppel that this trip
will be an expensive one for the defendant and that Mr. Ruppel agreed
to the trip.

[26] According to Mrs Diekmann
another meeting was scheduled by Mr. Ruppel to enquire from Mrs
Diekmann as regards the costs that would be involved. Various
quotations from different manufactures were submitted and it
transpired that this would cost the defendant an estimated N$1.5
million, depending on which quotation was chosen. Mr. Ruppel was
however not happy with the amount and suggested that Mrs Diekmann
gets an alternative option from Mobilia, Cape Town. Another trip was
then made to Cape Town at the end of October whereafter two
alternative quotes where obtained totalling N$ 2 372 084-00 and N$ 2
547 482-00. She testified that both quotes included a design fee
calculated as a percentage of the lower amount of the two quotes.
These quotes where allegedly presented at another meeting on 26
November 2005, where only Messrs Ruppel, Wohlers and Böttger
were present representing the defendant. No reason was given under
cross examination as to why the design fee was not included in her
own quotation.

[27] Mrs Diekmann testified that
Mr. Ruppel orally accepted the quote on behalf of L & B
Commercial services, totalling N$ 2 496 110-00. This confirmation was
then reduced to writing the next day by Mr. Böttger by letter
dated 29 November 2005. Mrs Diekmann however testified that the name
of the present plaintiff was at that time not yet approved by the
Registrar of Companies and that the correct name to trade under would
have been Elephant Empire Trading CC. She added that the incorrect
reference to the CC was never communicated by her to the defendant,
nor questioned by the directors of the defendant as it was regarded
to be less important considering the fact that Ms. Diekmann was the
sole partner of the close corporation.

[28] Mrs Diekmann testified that
there is no doubt that an agreement had been concluded for the
payment of the design fee. According to her, a quotation, inclusive
of the interior design fee, was orally accepted by Mr. Ruppel and in
writing confirmed by Mr. Böttger, as director of the defendant.
She further testified that had it been communicated to her that her
quote was not accepted, she would not have continued with the work
that she started with. She accepted that had the client not accepted
the fee there would be no agreement. No such indication was given to
her by the directors of the defendant until 23 June 2006. As a result
she kept attending site meetings and continued with her obligations
until 20^th February 2006 when all items ordered had
arrived. However, the furniture from Italy only arrived over the
Easter weekend of 2006. She testified that her obligation was to
supply and install office furniture and that she had performed her
duties as from the presentation, visit to the factories, submitting
the quotation and thereafter sourcing the furniture from third
parties.

[29] It is common cause that the
furniture and all other accessories were sourced from third parties
and subsequently delivered with a retail mark up.

[30] According to Mrs Diekmann
the interior design service which she rendered on behalf of the
plaintiff consisted of planning and general finishes; the type of
furniture to put in to fit the space, the type of pictures and all
other accessories that fit the concept. She said there was no
indication from the defendants that they were unhappy or dissatisfied
with her services. Having performed her end of the bargain, she
invoiced the defendant for interior design services amounting to N$
143 500-00 in the name of Heidrun Diekmann Interior Lifestyle CC but
the defendant refused to pay. She maintained that this was not
justified because at one stage Mr. Böttger mentioned to her that
her design fee is payable and that it was Mr. Ruppel who had a
problem about not wanting to pay the fee and that she should rather
speak to him.

[31] Mrs Diekmann testified that
any impression that she worked under Barnard Architects was baseless
since she is a separate entity who works hand in hand with Architects
and was not remunerated for her services by Barnard Architects. She
denied that Mr. Ruppel never agreed to the interior design fee or
that she exaggerated that she was responsible for the design of the
office layout.

[32] It was conceded by Mrs
Diekmann that the design fee in the quote of D & F Designs was
inserted by Mr Lindemeier of D & F Designs at her request. When
she made this request she did not inform Mr Lindemeier that she was
acting on behalf of a close corporation Elephant Empire Trading CC in
which she was the sole member. This despite the fact that, according
to her, she always intended to contract in the name of the CC with
the defendant for interior design services. She also stated that Mr
Lindemeier of D & F Designs CC was not aware of the existence of
Elephant Empire Trading CC.

The defendant’s evidence

[33] The defendant called several
witnesses, including Mr Ruppel, a director of the law practice
LorentzAngula Inc, and Mr Böttger both director of the defendant
and the law practice LorentzAngula Inc. Both these witnesses denied
the existence of a contract with the plaintiff for interior design
services; or that they admitted that any fee for interior design was
due and payable; or that such service was ever rendered.

[34] Mr Böttger testified
that a decision was taken by the Lorentz & Bone law practice to
build new offices for law the practice which was to become
LorentzAngula Inc. He testified that several meetings were held with
Leon Barnard Architects to discuss the requirements for the new
building. According Mr. Böttger, Ms. Diekmann showed up at one
of the initial meetings and he formed the impression that she formed
part of the team that was appointed by the developer. At that stage,
he testified, the actual layout of the offices had already been
decided and the design of the office already entrusted to Kobus van
Wyngaarden. He testified that although many such meetings occurred at
which Mrs Diekmann was present, no contract for interior design
services was concluded with her for the plaintiff; and that the only
contract concluded with Mrs Diekmann was for the supply of office
furniture.

[35] Mr. Böttger conceded
that Mrs Diekmann was sent to various places, including beyond the
shores, to investigate ideas for furniture. The furniture was then
ordered and two quotations, including that of D & F Designs, were
presented for payment. According to Mr Böttger, a further
meeting took place on the 28 November 2005, where Mr. Böttger,
Mr. Ruppel, Mr. Lindermeier and Mrs Diekmann were present to discuss
payment procedures for the work done by the Mrs Diekmann and D &
F Designs. In reference to annexure A to the particulars of claim Mr.
Böttger testified that the defendant has never accepted
liability for the interior design fee attributed therein to Mrs
Heidrun Diekmann. He said he only accepted liability in respect of
furniture and not more. Mr Böttger testified that the design for
the office was done and completed by Barnard Architect.

[36] Mr Böttger accepted
under cross examination that a design fee was included in the total
amount of the quotation by D & F Designs which he replied to in
his letter being annexure D to the amended particulars of claim. The
questioning was as follows:

“now
you agree with me that looking at the quotes as a whole and the total
set up therein, that includes the interior design fee for Ms.
Diekmann in the amount of N$ 143 500,00----yes, I agree that the
totals would include that.

And
that is the total you accepted? ------ yes”⁴

[37] Mr. Böttger submitted
that it was an oversight from his part not to carefully study the
quote at the time and denied liability since no interior design was
done by the plaintiff. He further testified in relation to the
plaintiff that he accepted the quote under the letterhead of Heidrun
Diekmann Lifestyles (annexure B to the amended particulars of claim)
in respect of the supply and installation of office furniture and
other accessories. Mr. Böttger insisted however that the
documents do not establish any basis for plaintiff to claim any
design fees. Furthermore, Mr. Böttger stated that if there was a
design fee payable to the Ms. Diekmann, this would have been
contained in her own separate quotation and not that of the D & F
Designs. Mr. Böttger also added that Ms. Diekmann persuaded the
defendant to furnish all three floors as per her presentation. To Mr.
Totemeyer’s suggestion that a design does not need to be a
physical drawing prepared but that it can be conceptual, Mr Böttger
stated that such an idea never crossed his mind since all design
issues were entrusted to the architects.

[38] Mr. Böttger testified
that it was during the period the quotes were accepted and the
installation of the furniture that the parties were involved in
various discussions over the design fee claimed by Mrs Diekmann. He
stated that a short discussion took place between himself and the Mrs
Diekmann which was rather emotional and highly confrontational over
the alleged design fee but denied ever having told her that a design
fee was payable.

[39] Mr Hartmutt Ruppel testified
that he made contact with the developers who referred him to Leon
Barnard Architects to attend to the layout of the building. He
further testified that Mrs Diekmann was not involved at this stage
and that when she got involved, the layout was actually already taken
care of. The only remaining issue that needed an agent was for the
furnishing of furniture, computers and servers.

[40] Mr. Ruppel could not
remember the number of meetings that took place where Mrs Diekmann
was also present but testified that he met her at the practice’s
offices and that no discussion of interior design fees ever took
place. He testified that her quotation for the supply of furniture
was accepted and met in full. Mr. Ruppel testified that when he met
Mrs Diekmann at the meeting with the Barnard Architects he was under
the impression that she formed part of the Architects’ team.
The impression was based on the fact Mrs Diekmann promoted certain
furniture to the representatives of the defendant and in fact
succeeded in selling a huge quantity of furniture to the defendant.
He insisted there was no agreement to engage the plaintiff to render
interior design services. Mr. Ruppel accepted that a design fee for
Mrs Diekmann was contained in the quotation of D & F Designs who,
according to Mr. Lindermeier, were instructed by Mrs Diekmann to
include it in the quotation. Following the dissatisfaction of the
furniture from Italy being contrary to what the firm ordered, Mr.
Ruppel insisted on the quotes and thereafter discovered this design
fee. Upon enquiries to D & F Designs, a subsequent invoice was
submitted without this fee and that no payment was outstanding for a
design fee.

[41] Under cross-examination Mr.
Ruppel disagreed with the idea of conceptual design and testified
that no design service was rendered by Mrs Diekmann and that she
merely promoted and sold furniture that were designed to fit the
offices, i.e. to fit in an environment that was already created. To
the question of why the components of the quotes where not examined,
Mr. Ruppel testified that the furniture were needed on an urgent
basis and the details of the quotes were not looked at carefully. He
denied any agreement to hire Mrs Diekmann as a designer for the
offices and as such no basis existed for an interior design fee.

[42] Also called to the stand was
Mr Johannes Willemse, a partner in a furniture dealership known as
Office-Economic. He testified that Mrs Diekmann approached him in
relation to the supply of office furniture around October 2005. It is
common cause that Mrs Diekmann approached Mr. Willemse for the second
time in the company of a Ms. Tanya Jobber, whereafter a quotation for
certain furniture was requested by her. In asking for a quote Mrs
Diekmann requested to not disclose therein the client discount as
that would be her commission on the work done. Mr. Willemse refused
to do so as he considered an improper business practice. Under
cross-examination he stated that the main reason why he refused the
request was because it was unethical to conceal a trade discount from
a client. As it happens, Office-Economix never got the business to
supply furniture to the defendant.

[43] Mr. Dirk Lindermeier is one
of two members of D & F Designs CC and was contracted by the
defendant to supply and install furniture. He confirmed that a
quotation was submitted on 28 November 2005 (annexure A to the
amended particulars of claim) which included a design fee for Mrs
Diekmann but that it was on the direction of Mrs Diekmann, at a rate
of 10% of the value of the furniture. Mr. Lindermeier testified that
the inclusion of the design fee in the quotation was for presentation
purposes only. He stated further that at some stage Mr. Ruppel denied
liability for the design fee and asked it to be removed from the
invoice of D & F Designs CC.

[44] The last witness for the
defendant was Mr Sparange Staby. Mr Staby was the architect working
for Leon Barnard Architects and was responsible for the layout of the
defendant’s office building. He testified that he prepared the
drawings showing the layout of the offices and the filing cabinet
system. He testified that an interior designer must be formally
appointed and given a mandate to carry out certain duties and
responsibilities. He testified under cross-examination that, in his
opinion as an architect, a furniture layout is initiated by first
preparing a concept which then later evolves into a final product and
that a ‘design’ is trying to get everything together on
which you then base the technical documentation. He further testified
that the role of an interior designer is not necessarily procurement
but cohesive interior design to create a certain ambiance. The role
of a designer should also include styling in terMrs of materials or
furniture. On the plans that were prepared by Mrs Diekmann, Mr. Staby
commented that it makes it difficult to identify the author of the
plans because there are no title blocks that bear the name of the
author, as a qualified architect would include on every plan with
three dimensional drawings.

[45] The critical allegation by
Mrs Diekmann that she had specifically pointed out to Mr Ruppel a
design fee upon presentation of the quote was strenuously denied by
Mr Ruppel. Mr Lindemeier also denied ever being informed by Mrs
Diekmann that Mr Ruppel had agreed to a 10% fee for Mrs Diekmann’s
interior design fee.

The more natural or plausible
inferences to be drawn from proved facts

[46] The classical test when it
comes to proof in a civil case was stated in Govan
v Skidmore⁵
as follows:

“Now
it is trite law that, in general, in finding facts and making
inferences in a civil case, the Court may go upon a mere
preponderance of probability, even although its so doing does not
exclude every reasonable doubt.”

[47] The principle was further
elaborated in Ocean
Accident and Guarantee Corporation Ltd v Koch⁶
when Holmes JA put it thus:

“…in
finding facts or making inferences in a civil case, it seeMrs to me
that one may, as Wigmore conveys in his work on Evidence,3^rd
ed.,para.32,
by balancing probabilities select a conclusion which seeMrs to be the
more natural, or plausible, conclusion from amongst several
conceivable ones, even though that conclusion be not the only
reasonable one. I need hardly hard that “plausible” is
not here used in its bad sense of ‘specious’, but in the
connotation which is conveyed by words such as acceptable, credible,
suitable. The Skidmore approach is now universally accepted in South
Africa⁷
and
it has been cited with approval by the Supreme Court in M
Pupkewitz & Sons (Pty) Ltd t/a Pupkewitz Megabuild v Kurtz
2008
(2) NR 775 (SC) 790, para. 30.”

[48] The approach to be followed
by the Court where the version of the plaintiff and that of the
defendant is mutually destructive has been stated as follows by
O’Linn J: (at 155C)⁸:

“But
it is clear that when the probabilities are equal, or where there are
no probabilities favouring the one version rather than the other, the
Court must at least be satisfied on adequate and sufficient grounds
that the version given by or on behalf of the plaintiff is true,
before judgment can properly be granted in plaintiff’s favour.”

[49] Hannah J added (at 161C):

“Where
the probabilities in a case are evenly balanced the plaintiff can
only succeed if the court is satisfied that his version is true and
that the defendant’s version is false.”

[50] In my view, the proved,
admitted or common cause facts tend to show that Mrs Diekmann
intended to obtain a design service fee from the defendant in her
personal capacity. It could not have been in the name of Heidrun
Diekmann Lifestyles Close Corporation because a CC by that name did
not exist. It is improbable given that she traded under that
corporation for 15 years in interior design, that she would by
mistake have omitted to name Elephant Empire Trading CC. Mrs Diekmann
could however not properly pursue the claim for such services in her
personal capacity because she was not registered for VAT in that
capacity. In fact that was the basis on which I granted absolution
against her in her personal capacity at the end of her case as she
was forced to concede that she never intended to contact in her
personal capacity. The only basis on which the claim can conceivably
succeed is if it is found that Elephant Empire Trading CC ought to be
the proper plaintiff. That she never intended to trade in respect of
the interior design fee in the name of Elephant Empire Trading CC is
equally obvious because it is so improbable given that she had at the
same time been selling wares to the defendant in that name that she
would not have properly identified that corporation as the
beneficiary of the interior design fee. I am satisfied that the
attempt to seek rectification to Annexure B to include Elephant
Empire Trading CC to take the place of the present plaintiff is an
afterthought to rationalise the predicament Mrs Diekmann finds
herself in. An important factor in that regard is that she does not
state in unambiguous terms as to when she became aware of the
mistake; and her not having sought the rectification when the summons
was first issued is telling and adds credence to the probabilities
that it is an afterthought. Equally significant is the fact that she
never mentioned to Mr Lindemeier of D & F Designs CC Elephant
Empire Trading CC as the corporation she intended to use to contract
for interior design fee with the defendant. Therefore, the reliance
on a mistake that justifies rectification is contrived and the claim
stands to be dismissed on that basis alone. Even if I am wrong in
that regard, there was no common mistake between the parties that
would justify rectification.

[51] It is stated in the amended
particulars of claim, and it is common cause that at the time the
alleged contract came into existence, a close corporation by the name
of Heidrun Diekmann Lifestyles CC did not exist. Rectification can
only succeed if it is shown, and the plaintiff bears the onus,
that there was a common mistake between the parties. I agree with Mr
Bourbon for the defendant that it is contradictory to on the one hand
suggest that Mrs Diekmann made a mistake in referring to Heidrun
Diekmann Lifestyles CC when she should have referred to Elephant
Empire CC, and in the same breath to suggest that when she
represented Heidrun Diekmann Lifestyles CC as a contacting party, she
was actually doing so on behalf of an undisclosed principal “Elephant
Empire Trading CC”.

[52] I cannot agree with the
contention made by Mr. Totemeyer for the plaintiff that, as he put it
“strictly speaking, rectification” of the document which
the plaintiff relies on as allegedly constituting the written part of
the agreement “is not necessary, since the undisputed evidence
shows that this is one and the same entity”. Rectification is
central to this case. Whether it is consensus of the parties on which
the alleged contract rests; whether it is on the undisclosed
principal that liability is to be found; or whether it is on estoppel
that the acceptance of liability rests, the simple truth in this case
is that a corporate entity called Heidrun Diekmann Lifestyles CC did
not exist in November 2005. For the claim to succeed, I must find
that Elephant Empire Trading CC is the corporate entity that the
parties by common intention wanted to render the interior design
service, but because of a mistake common to both did not properly
reflect. That is only possible if there is rectification to restore
what is alleged to be the true position.

[53] To start with, as correctly
pointed out by Mr Bourbon for the defendant, the reliance on an
undisclosed principal does not avail the plaintiff because it has not
been pleaded. Secondly, the pleadings themselves make clear that
Heidrun Diekmann Lifestyles CC did not exist at the time of the
alleged contract. It cannot be the one and the same thing as Elephant
Empire Trading CC. No amount of evidence can change that legal
reality. Rectification can only succeed if the plaintiff shows that
the reference to Heidrun Diekmann Lifestyles CC was a mistake common
to the parties. The mistake (if it can be called that) is that of Mrs
Diekmann in naming an entity that did not exist in the eyes of the
law instead of the one that did.

[54] I agree with Gibson J when
she approved the observations in Lawsa,
Vol. 5 at 59, para 129 in T
Shefler t/a Night Watch Services v Institute for Management
Leadership Training⁹
to the effect that common mistake
exists where both parties to a contract make the same mistake and
that in such situation each party knows the intention of the other
and accepts it and each is mistaken about the same underlying fact
relating to the contract. Although contrary to Mrs Diekmann’s
evidence which suggests it was a common mistake, Mr Totemeyer argues
(as indeed the pleadings state) that the mistake in this case was
caused by the one party only but argues that the requirements for
rectification are met in any event. I cannot agree. I agree with the
view expressed in Denker
v Cosack and others¹⁰
that rectification and unilateral
mistake are mutually exclusive concepts.¹¹

[55] It is trite that one of the
requirements to be met for rectification to be granted is (and again
the plaintiff bears the onus) that there was a mistake in drafting
the document.¹²
When the letters were drafted on
25 November 2005 and 29 November 2005 suggesting the involvement of
Mrs Diekmann, and the reply was done on 30 November 2005, the
defendant did not know that Heidrun Diekmann Lifestyles CC did not
exist and that it ought to have been Elephant Empire Trading CC,
which has since become the present plaintiff. It is conceded by the
plaintiff in its pleadings that Heidrun Diekmann Lifestyles CC was
non- existent when the alleged written part of the contract was
concluded.¹³
The insertion thereof is
attributed to a mistake by either the present plaintiff or Mrs
Diekmann.

[56] There is force in the
argument that all the confusion there is in this case about just who
contracted with whom is of the making of Mrs Diekmann. It is common
cause that all references in the documents she says constitute the
written agreement with the defendant for the provision of interior
design services, refer to her acting in a personal capacity or
non-existent Heidrun Diekmann Lifestyles CC. Her case now is that
was a mistake: It should actually
have been a reference to Elephant Empire Trading CC that had since
changed its name to the present plaintiff.

[57] Just to demonstrate the
confusion, Mrs Diekmann testified in her evidence in chief that at
the first meeting with some directors of the defendant (also partners
of Lorentz & Bone) she introduced herself to Mr Claus Hinrichsen(
a senior partner), and Mr Böttger, as being there on her own
behalf. She testified:¹⁴

“And
I also just want to point out that it was very clear that I was there
on
my own behalf.
That was an entity represented, or
that I came in the name of Elephant Empire Trading or in my own name.
I, Mr Barnard introduced me as an interior designer who works for
herself.”

[58] In just this one paragraph
of four lines we see the confusion being created by Mrs Diekmann. Was
she there in her personal capacity or was she representing a close
corporation? She could not have been both. The claim included both
until the one in her personal capacity was disallowed at the
absolution stage because she testified that she never really intended
to contract in her personal name. In considering the alleged mistake
made justifying rectification, one cannot disregard Mrs Diekmann’s
own evidence: In cross-examination she testified that it was not her
intention to contract in her own name for the provision of interior
design services. She testified¹⁵
that she always intended to
contract with the defendant on behalf of a close corporation
(Elephant Empire Trading CC). She went on to say it was a ‘common
error’ (i.e. common to both her and the defendant) that the
latter close corporation was not named as the provider of the
interior design services for a fee. She added¹⁶
that she also told Mr Lindemeier
that she wanted a fee to be included for interior design on behalf of
the close corporation. With all this evidence that that is what she
always wanted to do, there is not even as much as one word just why
she in all the relevant correspondence refers to herself acting in
her personal capacity or used a name of a close corporation (Heidrun
Diekmann Lifestyles CC) that did not exist. There is also no
explanation just when Mrs Diekmann became aware that she made a
mistake.

[59] I come to the conclusion
that the plaintiff has failed to discharge the onus
in establishing that there was a
mistake common to the parties that Elephant Empire Trading CC, not
Mrs Diekmann personally, was the entity the parties wanted to provide
interior design services. The claim must therefore fail.

[60] Even if I am wrong in that
and it be found that there was indeed a proper basis laid in fact and
law for rectification, I must, as I pointed out already, be satisfied
that the plaintiff on a preponderance of probabilities established
that she had rendered an interior design service to the defendant and
that there was in fact consensus between the parties for the
rendering of such services in the first place.

[61] Where there are
irreconcilable factual disputes and differences between the parties
the test I must apply is that set out in Stellenbosch
Farmers’ Winery Group Ltd and Another v Martell et Cie and
Others¹⁷.
The test was applied by Heathcote AJ in U
v Minister of Education, Sports and Culture and Another¹⁸.
The test is that in resolving factual disputes the court must take
the following approach:

1. 
   It must make credibility
   findings on the respective parties’ factual witnesses based on
   stated criteria;¹⁹

   
   

2. 
   It must determine the
   reliability of the factual witnesses also based on stated criteria;²⁰

   
   

3. 
   It must consider the
   probabilities involving an analysis and evaluation of the
   probability or improbability of each side’s version on the
   disputed issues.

   
   

4. 
   Where the credibility issues and
   the probabilities are equipoise, the probabilities prevail.

   
   

[62] On the material issues on
which the parties’ versions are mutually destructive, I must
make credibility findings and consider too where the probabilities
lie. In order to find for the plaintiff the Court must be satisfied
that the defendant’s evidence is false and that of the
plaintiff true. I am unable to come to such a conclusion in favour of
the plaintiff. The defendant’s witnesses gave their evidence in
a clear and coherent manner and made concessions where the
circumstances called for but explained why, in the case of Messrs
Ruppel and Böttger, such concessions were not inconsistent with
the tenor of the defendant’s case that there was no contract
for an interior design service and that no such service was
delivered. Not only are the probabilities not evenly balanced²¹,
but the plaintiff has failed to satisfy the Court that the version of
the defendant is false.

Probabilities considered

[63] The most significant
circumstance tending to show that there more than likely was an
agreement in the terms alleged by the plaintiff, is Annexure C to the
amended particulars of claim. The fact that the plaintiff’s Mrs
Diekmann paid many visits to the offices of the defendant, a
considerable amount of which happened even before the all-important
Annexures A-D, and went on visits beyond our shores to investigate
furniture solutions is not inconsistent, as I will presently show,
with the defendant’s version that she did so as a broker for
furniture dealers and was paid handsomely for it. The evidence of
Willemse shows how she made mark up on furniture sales. That she made
retail mark-ups is common cause.

[64] Before I set out the
probabilities favouring the defendant’s version, I will set out
material facts that are either common cause or properly established
by evidence. They are the following:

(a) Mrs Diekmann had never
discussed the issue of an interior design fee with any of the
directors before the all-important Annexures A-D. She in fact took
great care to not make it apparent in documents written by her: She
never included it in Annexure B. Instead, Mrs Diekmann had coerced
Lindemeier to include a design fee in the quote of D & F Designs
CC. In any event, Mr Lindemeier’s evidence that it was only for
presentation purposes undermines the alternative claim which
postulates that his doing so was intended to create legally binding
obligations on either D & F Designs CC or the defendant.

(b) Mr. Böttger’s
evidence that he never applied his mind to the issue of a design fee
in view of the urgency of the matter at the time, remains unshaken.

(c) Mrs Diekmann, either
personally or through Elephant Empire Trading CC, delivered a
considerable amount of furniture to the defendant and was paid for it
quite handsomely. Mr Ruppel testified that Mrs Diekmann’s
shopping list of furniture, for which she was paid, as well as her
presentation of the products of Office Economics, Della Rovere and
Mobilia made him assume that she was a sales person or a broker for
such furniture products. In fact, when Mrs Diekmann procured Mr
Lindemeier to include an amount in D & F Designs CC his quote in
her favour, she asked that to be expressed as a percentage (10%) of
the value of furniture to be supplied.

(d) Mr Sparange Staby who was
involved as an architect in the project testified that the work
relied on by Mrs Diekmann as ‘interior design’ do not fit
that description and that, in his opinion, an interior designer ought
to have been formally appointed to perform such an assignment.

(e) Messrs Ruppel and Böttger’s
evidence that by the time of Mrs Diekmann’s involvement all the
design work had been completed, was supported by architect Staby.

[65] Mr De Bourbon for the
Defendant has urged me to find that on a proper reading of the proven
and objective facts and circumstances in this case, the following
probabilities arise in favour of the defendant and that those
probabilities undermine the plaintiff’s case that there was a
consensus on the liability on defendant’s part to pay any
interior design fee:

9. 
   At the time of the acceptance of
   the quotes presented to them by D & F Designs CC, the
   defendant’s directors never applied their minds to the issue
   of a design fee due to Mrs Diekmann or the plaintiff because Mrs
   Diekmann was seen by the defendant’s directors as part of the
   architect’s design team, or was getting paid for her
   involvement for the supply of furniture as a broker; for which she
   received a percentage commission for furniture supplied.

   
   

ii) Mrs Diekmann did not render
any interior design service and that all she did was to advise on the
nature of furniture to be purchased, and the colour scheme to go with
it.

iii) The services Mrs Diekmann
rendered were in the nature of interior décor and the supply
and installation of furniture and accessories.

iv) After delivery of the
furniture, Mrs Diekmann only provided an after sales service as a
broker for furniture and that that does not amount to interior
design.

v) If Mrs Diekmann was ever
appointed as an interior designer, the compensation she was to
receive would have been as a result of a formal appointment and would
be commensurate with work actually done and not as a consequence of
an acceptance of liability as pleaded.

Court’s Findings

[66] I have fully set out the
four annexures to the amended particulars of claim (A-D) on which the
claim is predicated for the existence of the agreement. It is only a
contorted interpretation of those documents that I can come to the
conclusion that the defendant ‘accepted’ liability in
respect of the plaintiff’s alleged interior design fee.
Although it must be said that it would at a very early stage of the
process have put the entire matter to rest if Mr Böttger of the
defendant had sought clarification about the inclusion of the
interior design fee for ‘Mrs Diekmann’ after he received
annexure A, on a plain reading of the annexures I do not find any
intention on the part of the defendant, as represented by Mr Böttger,
to accept liability for an interior design fee. The most natural
inference discernible to me from the language used in annexure C,
read with A and D, is that the defendant was accepting the quotes in
respect of the supply and installation of furniture. Nowhere does Mr
Böttger mention acceptance of an interior design fee or refer to
acceptance of a global sum that includes an interior design service
fee. Therefore, plaintiff’s claim for the existence of a
liability to pay an interior design fee (to whoever) is not supported
by the all-important documents on which the claim is based.

[67] In light of the defendant’s
evidence that all the plaintiff did was interior decor as part of her
role as a broker and sales person of furniture, as opposed to
interior design that would have attracted a professional fee for
design, which in any event had been completed by the architects
before her involvement, the plaintiff bore the onus to prove
what constituted interior design and to adduce evidence establishing
on balance of probabilities that it had provided such a service.
Without meaning any disrespect, she failed to meet the onus in
either respect; in particular the documents she crucially relied on
in support of her claim that she did interior design were shown in
cross–examination not to support such a claim. The fact that it
was clearly demonstrated in cross-examination that the documents Mrs
Diekmann relied on in her evidence in chief as her design work
pre-dated her involvement; the fact that the design work for the
office had been done before her involvement, and that, according to
architect Staby, doing such work required a formal appointment (which
she did not have), makes the version of the defendant that there was
no such contract and that no such services were rendered, more
probable than the plaintiff’s version that the contrary is the
case.

[68] As far as credibility goes,
Mrs Diekmann made a poor impression on the Court as a witness. She
was evasive on crucial issues and it is no exaggeration that she
never really coherently answered any of Mr Bourbon’s questions
in cross-examination. Mrs Diekmann sought to rationalise facts and
events which clearly were inconsistent with her pleadings and her own
evidence. I will give a few examples. It is common cause that the
addition of Mrs Diekmann as a plaintiff happened much later. The
original plaintiff was always the present plaintiff. When she was
added as a plaintiff, and just before she begun to give evidence, her
pleadings were amended and VAT was claimed in respect of her personal
claim. She justified her inclusion as a plaintiff in her evidence in
chief. When she came under cross-examination she, rather reluctantly,
conceded that she never intended to contract with the plaintiff in
her own name. She did that when she realised the stark reality under
cross-examination that she could not have justified a claim for VAT
because she was in her personal capacity not registered for VAT. That
notwithstanding, she continued to insist that she was properly
included as a plaintiff in her personal capacity. She thus properly
made a concession only to retract it when she realised the admission
put her in a not so positive light.

[69] When Mrs Diekmann testified
in chief, she gave the impression that she had borne the expenses for
her travel to Italy and that it was on behalf of the defendant and
that she could not have done that for nothing. It emerged in
cross-examination that the trip was actually paid for by others and
that the most important expenses relating thereto were met by others
whose furniture she sought to promote. This circumstance strongly
corroborates the version that she was more of a broker of furniture
who worked for a commission for selling them.

[70] All told, the plaintiff’s
evidence on the alleged contract for an interior design fee and that
such a service was actually rendered, does not stand up to scrutiny.
The main claim and the alternative claim must therefore fail. I see
no reason why costs must not follow the event.

Order:

[71] The plaintiff’s main
and alternative claims are dismissed with costs; and such costs to
include the costs of one instructed counsel.

_______________________

DAMASEB, JP

ON BEHALF OF THE PLAINTIFFS: Adv.
R Töttemeyer, SC

Instructed By: S F Kenny Legal
Practitioners

ON BEHALF OF THE DEFENDANT: Adv.
De Bourbon, SC

Instructed By: Francois
Erasmus & Partners