E C Chenia & Sons CC v Lamé & Van Blerk

The respondent, a partnership of consulting civil and structural engineers, instituted action in the Vereeniging magistrate's court against the appellant for payment of R22,852.80 for professional services rendered. The plaintiff claimed services were rendered at defendant's special instance and request. In January 2002, Mr Da Silva (representing plaintiff) was approached by an architect, Mr Heiman, to join a consulting team for the defendant's building project. Da Silva sent a written offer on 31 January 2002 to the defendant detailing engineering services and fees calculated according to the Engineering Profession of South Africa Act tariff. Da Silva attended meetings and prepared structural plans but received no formal response. On 12 March 2002, Mr Chenia (representing defendant) telephoned Da Silva and instructed him to complete the engineering work needed. Da Silva complied on 15 March 2002. The defendant denied requesting services and claimed no knowledge of Da Silva. The magistrate granted judgment for the plaintiff. The defendant's appeal to the Johannesburg High Court (Goldstein J and Khampepe J) was dismissed.

• Whether the evidence led by the plaintiff at trial was covered by its pleadings
• Whether the contract established was a tacit or express agreement
• Whether the plaintiff's reliance on evidence of a telephone conversation on 12 March 2002 (not specifically pleaded as occurring on 31 January 2002) constituted an impermissible departure from pleadings
• Whether the defendant suffered prejudice from any departure from pleadings
• Whether a valid contract (locatio conductio operis) was established between the parties

The appeal was dismissed with costs.

A contract formed through oral acceptance of a written offer is an express contract, not a tacit contract, since both offer and acceptance are articulated in words. Parties will only be kept strictly to their pleadings where departure would cause prejudice or prevent full enquiry (Robinson v Randfontein Estates applied). A departure from pleadings regarding the precise date of contract formation does not constitute material prejudice where: (1) the real issue between parties is whether any contract existed, not the date of formation; (2) the material terms pleaded (parties, representatives, terms, performance) remain unchanged; and (3) the opposing party fails to object to the evidence at trial. A party who fails to object to evidence at trial on grounds of admissibility or relevance cannot later argue on appeal that such evidence should be ignored as inadmissible due to departure from pleadings. In contracts for professional services (locatio conductio operis), parties may validly agree that remuneration will be calculated according to a specified professional tariff without stating a precise contract price.

The court observed that when defendant's counsel decided not to challenge both the admissibility and substance of Da Silva's evidence at trial, he took a calculated risk, and any prejudice resulting from such failure must be ascribed to the realization of that risk rather than to the plaintiff's departure from pleadings. The court noted that a party cannot be allowed to lull its opponent into a false sense of security by allowing evidence without objection at trial and then arguing at the end of trial or on appeal that such evidence should be ignored because it was inadmissible. The court emphasized that pleadings are made for the court, not the court for the pleadings, indicating judicial discretion in managing procedural matters within the limits of preventing prejudice.

This case is significant in South African civil procedure for clarifying the distinction between express and tacit contracts in the context of pleadings. It reinforces that a contract formed through oral acceptance of a written offer constitutes an express contract, not a tacit one. The judgment importantly applies and interprets the Robinson v Randfontein Estates principle regarding departures from pleadings, establishing that such departures are permissible where they do not cause material prejudice to the opposing party. The case also establishes that failure to object to evidence at trial constitutes a waiver of objections based on departure from pleadings, and that parties cannot raise such objections for the first time on appeal. It provides guidance on when minor discrepancies in pleadings (such as precise dates) will be considered immaterial, particularly where the substantive issue (existence of any agreement) remains properly pleaded and in dispute.