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[2010] ZAGPPHC 554
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Kampvuur Eindom Bk v Panos (21461/2005) [2010] ZAGPPHC 554 (12 February 2010)
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTH GAUTENG
HIGH COURT PRETORIA)
CASE NO: 21461/05
DATE: 12 FEBRUARY
2010
In the matter
between:
KAMPVUUR
EINDOM
BK
...........................................................................
PLAINTIFF
/
RESPONDENT
and
STEVEN
PANOS
...............................................................................................
DEFENDANT/APPLICANT
JUDGMENT
MAVUNDLA J,
[1]
The applicant, who was the defendant in this matter, applied for
leave to appeal against the judgment of this Court granted
against
him on 13 March 2009 for payment of an amount of R219 00 0, 00 (two
hundred and nineteen thousand rand) together with interest
of 15.5%
per annum a
tempore
morae
on
the aforesaid amount from date of service of the summons to date of
payment, and the dismissal of his counterclaim and for payment
of
costs of both the counterclaim and the main action.
[2] The aforesaid
award against the applicant is in respect of the respondent's
(plaintiff s) estate agent commission plus interest
of a sale
agreement in respect of defendant's immovable property referred to in
the judgment which was sold for an amount of R3
650 000, 00 (three
million six hundred and fifty thousand rand) which was found to have
been sold by the respondent.
[3]
In the notice for leave to appeal as one of the grounds,
inter
alia,
for
leave to appeal it is stated that this Court erred in law in finding
that the applicable legal principle was as set out in
Joubert
v Coster
1982
(4) SA 540
(C) at 547A-B and in particular that the respondent
(plaintiff) would succeed if it can show that it was the effective
cause of
the sale.
[4]
It is further submitted that it should have been found that the
plaintiff relied on a written agreement and that whether or
not the
plaintiff was entitled to its commission, had to be determined by the
terms of the written agreement, construed in accordance
with the
ordinary principles of construction, and that ex
facie
the
terms of the written agreement, the respondent had to allege and
prove that during the existence of the mandate, the respondent
found
a willing and able buyer for the property and that registration of
the property took place into the name of such buyer.
[5] A further ground
advanced is that the Court erred on the fact where it found that:
51. no distinction
should be drawn between Micromatica 724 (Pty) Ltd and W2 Eindomme
(Pty) Ltd,
5.2 Applicant
terminated the respondent's mandate because he was colluding with
Rousouw;
5.3 the respondent
found or introduced VV to the property.
[6] It is further
stated in the notice for leave to appeal that the Court should have
found on the facts before it that:
6.1 the respondent
only introduced Micromatica to the property and ;
6.2 because W2
purchased the property after the termination of the mandate, the
transaction between VV2 and applicant fell outside
the scope and
ambit of the written mandate;
6.3 the respondent’s
claim should have been dismissed with costs.
[7]
I do not intend to traverse my judgment, nor chronicle the
submissions made. It is important to mention that the applicant did
not testify during the trial. His version refuting the evidence of
the respondent with regard to the facts and circumstances that
lead
to the sale of the property is not on record. The only version on
record is that of the respondent. The Court accepted this
version,
inter alia,
on
credibility finding. In my view, another Court will not in such
circumstances, interfere with credibility findings of a trial
court.
[8] In the absence
of the version of the respondent under oath, factual findings can
only be made on the evidence of the respondent.
In these
circumstances, in my view, it is unlikely that another Court will
arrive at different factual findings as this Court did.
[9] In the result
the application for leave to appeal is dismissed with costs.
N.M. MAVUNDLA
JUDGE OF THE
HIGH COURT
DATE OF JUDGMENT
: 12/02/2010
APPLICANT’S
ATT : ROOTH & WESSELS INC
APPLICANT’S
ADV : Mr. BC STOOP.
RESPONDENT’S
ATT : VAN DER MERWE DU TOIT INC.
RESPONDENT’S
ADV : Mr. J S GRIESSEL.