On
30 March 2006, the parties entered into a written contract. The
respondent, under the contract, gave the applicant the right to conduct hunting
safaris for elephants and other species on land under control of the
respondent. The dispute between the parties relates to prices for elephant
trophies and not for any other species. The terms of the contract were
that the applicant would pay trophy fees to the respondent, 50% of such fees
would be paid 30 days prior to an elephant hunt, and the other 50%, 30 days
after a successful hunt – Clause 4(a) and (b).
In
respect of elephants, the amounts payable in trophy fees would be “pegged on
the National Parks recommended rates” – Clause 4(e).
The
applicant's servants, agents and invitees would enter the land through the
offices of the respondent and would be required to acquire written permits for
any hunts. The applicant would, each year, be entitled to hunt elephant
and other species in such numbers as would be advised by the National Parks
through the latter's quota list and the latter would have the right to
determine the charges – Clause 7.
In
March 2011, following a stakeholders meeting attended by the applicant's
representative, and the deponent to its founding affidavit, the respondent set
new trophy fees in respect of elephants to prevail in the year 2011.
The
applicant disputed liability to pay these charges and as a result filed the
current application.
The
terms of the contract between the parties does not spell out the exact trophy
prices payable by the applicant for the duration of the contract. Clause 4…,
simply lays down a method of determining the trophy fees that will be payable
by the applicant, rather than the exact amount.
According
to the above-mentioned terms of the contract the parties left the trophy fees
to be determined on the basis of some pre-arranged method. It is also
evident that the National Parks recommended rates would guide the parties in
settling upon the trophies fees to be paid by the applicant. The parties
also agreed that the National Parks would have the right to determine not only
annual quotas in respect of each year but also the charges. Pursuant to
clauses 4 and 7 of the contract, the parties met every year to determine the
trophy fees that would be payable by the applicant for the year. The
respondent has shown, in its papers, that there were meetings held in the year
2006, 2008 and 2009. The applicant has not denied that such meetings were
held to set the trophy fees for each year. What the applicant has disputed
is that there was a variation of the fees during these years. It is beyond
dispute that annual meetings were held to deliberate on the issue of trophy
fees each year. This was in terms of the contract. Therefore, the March
2011 meeting (of the revision of the trophy fees) was not a new event, but a
continuation of an established course of dealing between the parties. The
applicant did make representations at the first meeting in March 2011, after
which the respondent gave the applicant and other representatives a chance to
make further representations. The meeting was adjourned for this
purpose. When the meeting resumed, the applicant did not avail itself of
the second chance. The other stakeholders made representations. The
respondent then made, and conveyed to the applicant, its decision. The
respondent, therefore, did not take its decision unilaterally but acted after
affording the applicant a chance to be heard. Other hunters are paying the
respondent as per this decision. An annexure filed by the applicant…, clearly
shows that the price of the elephant was deleted and substituted in longhand
under the title “Elephant male – above 60lb $11,000=.” The date is
2005. So in 2005 the price of the elephant trophy was variable depending
on the weight. In its papers, the applicant concedes that there have been
trophy price reviews from 2005 and the last review shown is 2008. A letter
authored by an official of the National Parks also advises the stakeholders to
negotiate the price of the elephant trophy depending on weight. The
applicant's case seems to be that the National Parks recommended prices, as set
in 2006, be applied slavishly and without variation.
This
is not the correct position.
A
close look of Clause 4 and 7 of the agreement, as well as the course of
dealings between the parties, evinces that the National Parks recommended rates
would be just that, recommended rates. Such rates would be used as a guide
when setting the fees for each year.
It
is trite that when interpreting a contract, words should be given their natural
meaning or the meaning most commonly understood in relation to the subject
matter and circumstances and reasonable construction is preferred to one that
is unreasonable. S v
Masivira
1990 (1) ZLR 373 (H); S v
Robinson
1975 (4) SA 438 (RA) and Cape
Provincial Administration v Clifford
Harris (Pty) Ltd 1997 (1) SA 439 (SCA). The natural
meaning of the words employed by the parties in Clause 4 of the agreement is
that the prices to be set would be guided by the National Parks prices, which,
in terms of Clause 7, and, indeed, in terms of established custom and practice
in the hunting industry is that the National Parks were at liberty to set
prices annually. The intention of the parties was that the National Parks
recommended rates, as set annually, would guide the parties in setting the
trophy fees annually.
Accordingly,
the application is without merit and the provisional order granted by the court
on 6 June 2011 be and is hereby discharged with costs.
