JHI Real Estate Limited v Group 6 Property Holdings (Pty) Ltd (845/06) [2010] ZAGPPHC 565 (22 February 2010)

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[2010] ZAGPPHC 565
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JHI Real Estate Limited v Group 6 Property Holdings (Pty) Ltd (845/06) [2010] ZAGPPHC 565 (22 February 2010)

IN
THE HIGH COURT OF SOUTH AFRICA
(NORTH
GAUTENG HIGH COURT, PRETORIA)
Case
No: 845/06
Date:
22 February 2010
In
the matter between:
JHI
REAL EASTATE
LIMITED
……………………….................................................……
PLAINTIFF
And
GROUP
6 PROPERTY HOLDINGS
(PTY)
LTD
………………………………………………...............................................…
DEFENDANT
JUDGMENT
MSIMEKI J
INTRODUCTION
[1]
The Plaintiff, an estate agent, instituted an action against the
Defendant, a property owning company, for payment of the sum
of R169
684.66 for commission that it earned when the Defendant and Nanoteq
(Pty) Ltd (“Nanoteq) concluded a written agreement
of lease
(“the lease”) on or about 10 June 2005. The Plaintiff, in
the action, also claimed interest and costs of suit.
[2]
The Defendant on various grounds, denied liability. The Defendant
denied that the Plaintiff had introduced 1 Peter Street, Highveld

Techno Park, Centurion (“the property”) to Mr Marais
(“Marais”) of Nanoteq and that the Plaintiff had been
the
effective cause of the conclusion of the lease.
THE
FACTS
[3]
The Facts of the case are embodied in the evidence of Ms  Azley
Loots (“Loots”), Mr Eugene Van Niekerk (“Van

Niekerk”), Mr Allan Rodney Luntz (“Luntz”), Ms
Corney Van Niekerk (“Corney”) and Ms Avril Avant (“

Avant”) who testified on behalf of the Plaintiff and Mr Russell
Eagan (“Eagan”) and Mr Marais (“Marais”)
who
testified on behalf for the Defendant.
THE
DISPUTES
[4]
Having regard to the admissions, the evidence of Luntz, the
concessions of Eagan and the common cause facts, the remaining
disputes are whether the Plaintiff introduced Nanoteq to the
Defendant’s property and whether the Plaintiff was the
effective
cause of the lease.
COMMON
CAUSING FACTS
[5]
The common cause Facts are the following:
5.1 That the
Plaintiff is an estate agent which, at all relevant times hereto, was
the holder of a valid fidelity fund certificate
issued in terms of
section 26 (a) of Act 112 of 1976 and which had fidelity insurance in
terms of section 26 (b) of Act 112 of
1976.
5.2 That the
Defendant mandated the Plaintiff to find a tenant for the property.
5.3 That the lease
was concluded between Nanoteq and the Defendant on 10 June 2005.
5.4
The citation of the parties.
5.5
That the court has jurisdiction.
5.6 That the
Plaintiff successfully faxed the office accommodation form on page 9
of Bundle C to Nanoteq
5.7 That the
Plaintiff successfully faxed the Plaintiffs letter of introduction
dated 14 April 2005 to the Defendant
5.8 That the
Defendant received the Plaintiffs letter of 17 May 2005
5.9 That the e-mail
addressed to Marais appearing on page 13 of Bundle C was received by
Nanoteq
5.10 That the
representatives of Nanoteq including Marais signed the Plaintiff’s
offer to lease appearing on pages 59-63 of
Bundle C
5.11 That at all
relevant times Eagan represented the Defendant.
5.13 That the
Plaintiff’s letters dated 17 May 2005, 1, 3 and 6 June 2005
were received by the Defendant.
PLAINTIFF’S
CASE
[6]
In supporting its case, 5 witnesses testified on behalf of the
Plaintiff.
6.1
MS AZLEY LOOTS
She has been
employed as an estate agent by the Plaintiff for more than 5 years.
She leases and sells industrial and commercial
properties. She
represented Plaintiff when she was mandated to find a tenant for the
Defendant’s property by Eagan who, at
the time, represented the
Defendant. She viewed the property and listed it on the Plaintiff’s
database. She met Eagan about
three times. The Plaintiff’s
standard terms of commission were not discussed with Eagan. She
assumed that Eagan was well
aware of them. She took two potential
clients to view the property but this did not result in the
conclusion of any lease. Eagan
made arrangements to provide her with
a copy of the floor plans for the property. He did not accept
Kagisano Financial Services
(Pty) Ltd (“Kagisano”)’s
offer to lease the property as Avant’s client (which she later
discovered was
Nanoteq) had wanted to sign a 3 year lease.
6.2
MR EUGENE VAN NIEKERK
He
is the CEO of Credit U (Pty) Ltd and was at the time employed by
Kagisano. He dealt with Loots when Kagisano made an offer to
lease
the Defendant’s property which Egan did not accept. He was at a
meeting which was attended by Loots and Eagan. Eagan,
at the meeting,
never showed any difficulty with clause 14 of the offer to lease,
which concerned the Plaintiff’s commission.
6.3
MR ALLAN RODNEY LUNTZ
His evidence is not
controverted. He is an attorney by profession working as a commercial
property consultant with 17 years experience.
He has worked for a
number of companies,
inter alia,
the Plaintiff. He is
currently working for the Alliance Group where he regards himself as
an expert in their leasing division. He
testified about what estate
agents do upon receiving verbal and written mandates. He testified
that there is no difference between
the commission structure of the
Institute of Realtors of South Africa and SAPOA. He regarded the
commission claimed by the Plaintiff
in paragraph 10 of the
particulars of claim as fair, reasonable and market related.
6.3
MS CORNEY VAN NIEKERK
She, during 2005,
was employed by the Plaintiff as personal assistant to Avant, Loots
and Mr Moletsane. She sent and received the
Plaintiff’s faxes
and e-mails. On 14 April 2005 she successfully faxed an accommodation
form appearing on page 9 of Bundle
C to Nanoteq. She again, on 14
April 2005 successfully faxed a letter of introduction to the
Defendant appearing on page 7 of Bundle
C.
She successfully
faxed the Plaintiff’s letters dated 17 May 2005, 1, 3 and 6
June 2005 to the Defendant. She, at the request
of Avant, on 26 May
2005, successfully sent an e-mail appearing on page 13 of Bundle C to
Marais. The Plaintiff’s offer to
lease on page 14 of Bundle C
was an attachment to the e-mail.
6.4
MS AVRIL AVANT
She is a commercial
property broker in the employ of the Plaintiff since 1 May 2001. She
confirms that the Defendant, represented
by Eagan, mandated the
Plaintiff to find a tenant for its property. Eagan, on 29 April 2005,
telephonically, requested her to find
a tenant for the same property
giving her the relevant information and his cellular phone number.
The Plaintiff’s data base
also had the required information as
the listing had been done by Loots. She started dealing with Marais
on 13 or 14 April 2005.
She faxed to him an office accommodation form
appearing on page 9 of bundle C. Marais represented Nanoteq. The
Defendant’s
property is the second on the office accommodation
form. Marais never indicated to her that he had been familiar with
the Defendant’s
property on the form or that Eagan had been
interested in the property. Marais, at the time, never told her that
he had known Eagan
or that he had spoken to Eagan about the property.
She determined Nanoteq’s interest in the three properties and
then caused
letters of introduction to be sent out to the lessors of
the buildings. A letter of introduction on page 7 of Bundle C was
sent
to the Defendant by Corne. She took Marais, Mr Mike Venter and
Mr Pieter Steenkamp to view Regency Court, the first property on
the
office accommodation form. No lease was concluded. She took Marais to
view the property on 13 May 2005 after the Regency Court
deal had
fallen through. She testified that she had seven or eight telephone
conversations with Eagan after the letter of introduction
had been
faxed to the Defendant. Eagan neither commented on the letter of
introduction nor disputed its contents. He did not respond
to the
letter in writing either. Directed by Eagan, and at her request, she
fetched the floor plans of the property from Mr Hein
Viviers
(“Viviers”) in Pretoria North and handed them to Marais
for purposes of performing a space planning exercise
which was done.
Eagan specifically asked her to submit Nanoteq’s offer to lease
before 27 May 2005 as another offer to lease,
already submitted,
would expire on 27 May 2005. Eagan was referring to the Kagisano
offer to lease. A letter, addressed to Eagan,
on page 11 of Bundle C
was successfully faxed to the Defendant on 17 May 2005. The letter
reads:
“
With
reference to our correspondence dated 14 April 2005 we hereby confirm
that our client, Nanoteq represented by Mr Mike Venter
(CEO) and Mr
Johan Marais, are seriously considering occupying the above premises.
They wish to view
the building this afternoon again. As soon as a (sic) time has been
confirmed, we will let you know.”
She
testified that Eagan, during the telephone conversations she had with
him, never disputed that Nanoteq was the Plaintiff’s
client or
that Plaintiff had introduced Natoteq to the Defendant’s
property. She confirmed that an offer to lease the Defendant’s

property was successfully faxed to Marais on 26 May 2005. This had
been pursuant to Marais’ request for such an offer to
lease
made by him on 24 May 2005. The offer to lease is on page 14 of
Bundle C. Nanoteq, duly represented, signed the offer to
lease seen
on pages 59 – 63 of Bundle C. The Defendant’s acceptance
of offer on pages 113 and 49 of Bundle C, according
to her, was
signed by Eagan and Marais a day after Nanoteq signed the Plaintiff’s
offer to lease. The lease concluded by
the Defendant and Nanoteq
appears on pages 64 – 80 of Bundle C. Before signing, Marais
asked her if he could and she told
him that he could, on condition
that the Plaintiff still would receive the commission to which it was
entitled. This, according
to her, occurs where parties amend some of
the terms and conditions of the offer to lease. She specifically
testified that at no
stage, when she dealt with Marais and Eagan, did
Marais speak about Eagan and vice versa.
[7]
Marais and Eagan were the only witnesses who testified on behalf of
the Defendant.
7.1
MR R. EAGAN
He represented the
Defendant. He testified that he had never seen the letter of
introduction dated 14 April 2005. It was not denied
that such letter
had been successfully faxed to the Defendant. The Defendant,
according to him, had in the past had very little
problems in not
receiving faxes sent through to the Defendant’s offices. It is
common cause that the Defendant received Plaintiff’s
letter
dated 17 May 2005. The letter confirms that:
7.1.1the
letter of introduction had been faxed to the Defendant on 14 April
2005
7.1.2Nanoteq
is Plaintiff’s client
7.1.3Nanoteq,
at the time, had been seriously considering occupying the Defendant’s
property.
7.1.4Nanoteq’s
representatives had viewed the property
7.1.5
they again had wanted to view the property
Eagan
orally disputed the contents of the letter of
introduction and did not do so in writing. He conceded that the
Defendant would be
liable to pay the Plaintiff’s commission if
it was found that the Plaintiff had in fact introduced Nanoteq to the
Defendant’s
property. This, notwithstanding, Eagan never
disputed the contents of the letter of 17 May 2005 in writing. The
Defendant did not
respond in writing to the Plaintiff’s letters
of 1 and 3 June 2005. In cross examination, Eagan testified that once
the name
of the property, address of the property, the size of the
property and the rental per square metre are provided to the
prospective
tenant the introduction is successful. He regarded the
introduction as valid even if half the information referred to above
was
provided. Eagan testified that he had provided the relevant
information to Marais of Nanoteq on 11 or 12 May 2005. Eagan
testified
that Nanoteq accepted the Defendant’s offer to lease
on 27 May 2005. The relevant document is found on page 49 of Bundle
C. Shown that the first sentence thereof made no sense unless it
referred to the offer to lease prepared by the Plaintiff, Eagan

furnished unsatisfactory answers ending up contradicting himself. He
was shown that he could not have accepted ‘our offer
to lease’
as that would not make sense either. He conceded that the tariffs of
SAPOA constituted fair, reasonable and market
related commission.
He
could not explain why the services of an estate agent were necessary
if the Defendant’s property ‘sold itself’.
He
further conceded that if Marais had read the Plaintiff’s office
accommodation form, then and in that event, the Plaintiff
had in fact
introduced the Defendant’s property to Nanoteq. He changed his
testimony to say that even if that was the case,
that would not
amount to a valid introduction without him having been notified of
the contents of the document. This, according
to Mr Du Plessis, could
not hold any water as Eagan on 3 or 4 April 2005 had specifically
mandated the Plaintiff to find a tenant
for the Defendant’s
property. He later conceded that, in that event, it was unnecessary
for the Plaintiff to notify him regarding
all of the information that
the Plaintiff had provided to the potential tenants. This would also
include the time when Avant provided
the necessary information of the
Defendant’s property to Nanoteq. Mr Du Plessis’s
submission, in my view, has merit.
Eagan testified that he had
introduced the property to Nanoteq on 11 or 12 May 2005. Forgetting
about this piece of evidence, he,
in cross examination conceded that
Nanoteq’s representatives had not yet had access to the
Defendant’s property on
11 or 12 May 2005. This means that they
had not yet viewed the property. Mr Du Plessis validly asked how
Eagan could have introduced
the Defendant’s property to Nanoteq
which had not even viewed the property. Eagan conceded that he had
not even informed
Marais about the unrestricted access which Nanoteq
was said to have to the Defendant’s property. On his version,
he had never
accompanied any of Nanoteq’s representative to the
Defendant’s property until after 27 May 2005 which was after
the
Defendant’s said offer of acceptance was signed. Eagan
admitted knowing most of the estate agents in the area of the
Defendant’s
property. Eagan testified that the Plaintiff had
never forwarded its commission structure to him. This led to Mr Du
Plessis wanting
to know why he had not then made a follow up. This,
according to Mr Du Plessis, was because the Plaintiff had already
sent its
commission structure to the Defendant on 14 April 2005. One
may not blame him for asking such a question. Eagan, according to his

testimony, knew Nanoteq through an estate agent who called and gave
him Nanoteq’s details. The fact that this estate agent
was not
called as a witness by the Defendant, according to Mr Du Plessis, is
indicative of the fact that he, in fact, had obtained
Nanoteq’s
details from the letter of introduction that was faxed to the
Defendant on 14 April 2005. Mr Du Plessis found Eagan’s
conduct
a little surprising when he, after the Plaintiff’s letter of
introduction together with other documents had been
resent to the
Defendant’s offices, did not enquire from the Defendant’s
personnel whether or not they had seen the
Plaintiff’s letter
of introduction before. One would, in deed, expect Eagan to do that.
Eagan confirmed the collection of
the floor plans from Viviers. It
was Eagan’s testimony that he had not looked at the offer to
lease prepared by the Plaintiff.
This, Mr Du Plessis, found highly
improbable. This is, in fact, so if one has regard to the fact that
the Defendant’s offer
to lease in Bundle C on page 49 is
drafted in the same sequence as the offer to lease that the Plaintiff
prepared. I find it strange
that Marais would provide Eagan with the
offer to lease prepared by the Plaintiff which Eagan would not be
eager to look at. It
is important to remember that Eagan, on his
version, took Nanoteq’s representatives to view the Defendant’s
property
after acceptance of the offer to lease on page 49 of Bundle
C was signed. Incidentally that happened after the offer to lease
prepared
by the Plaintiff was signed by the representatives of
Nanoteq.
[8]
MR MARAIS
His
testimony is briefly that he was introduced to the Defendant’s
property by Eagan and not by the Plaintiff. The Plaintiff
was,
therefore, not, entitled to any estate agent’s commission.
Marais testified that he would not sign a document which
contained
incorrect information. He would also not sign a document unless
Nanoteq was bound thereby. This, according to Mr Du Plessis,
begs the
questions:
1.
Why Avant would accompany him to the
Defendant’s property if the Plaintiff was not entitled to its
commission.
2.
Why Nanoteq would sign the offer to lease
prepared by the Plaintiff which embodied clause 14 which deals with
Plaintiff’s
commission if the Defendant was not liable to pay
the Plaintiff’s commission which the Plaintiff is entitled to.
These questions,
in the circumstances of the present matter, are
valid and justified.
He,
like Eagan, experienced problems when referred to the Defendant’s
acceptance of offer to lease appearing on page 49. This
resulted from
his testimony that the Defendant and Nanoteq had concluded the lease
without signing an offer to lease. He, as a
result, testified that
the reference to ‘your offer to lease’ had been
incorporated due to an oversight. He testified
that he did not know
how estate agents operated. He changed the version and testified that
he was able to testify in great detail
about the operation of the
estate agent’s database systems because he knew how estate
agents operated and functioned thereby
contradicting himself. Marais
was unable to dispute that he might have read the Plaintiff’s
office accommodation form on
14 April 2005 which, according to Mr Du
Plessis, meant that the information on the form could have been
provided to Nanoteq by
the Plaintiff on 14 April 2005. This reasoning
is sound.
THE
LAW
[9]
Usually the parties determine their duties and obligations, as well
as their entitlements in their written agreements. There
are, of
course, instances, where their agreements are oral in nature. For the
estate agent to be entitled to a commission the following

requirements must be met;
1. There must exist
a mandate for the estate agent to conclude transactions on behalf of
the principal.
2. The estate agent
must act according to the terms and conditions of the mandate to be
entitled to the commission.
3. The action of the
estate agent must result in a binding agreement between the parties
in question.
4.
The estate agent must be the effective cause of the transaction. (See
in this regard
Mackie v Whyte and Turpin
Ltd
1923 TPD 347
at 348
)
Should
a new factor which is not of the making of the Agent intervene and
contribute to the conclusion of the lease the question
that should be
asked in determining whether the agent should be entitled to the
commission is whether or not the new factor outweighed
the effect of
the introduction in bringing about the lease. If the introduction was
overridingly effective then the agent is entitled
to the commission
(See
Aida Real Estate Ltd v Lipschitz
1971 (3) S A 871
(W) at 874
).The estate
agent bears the onus throughout to prove that he was the effective
cause of the agreement (See
Wakefield &
Sons (Pty) Ltd v Anderson
1965 (4) S A 453
(N) at 455; Barnard &
Parry Ltd v Strydom
1946 AD 931
and Lombard v Reed
1948 (1) S A 30
(T).)
[10]
Reverting to the facts of the case in an endeavour to resolve the
disputes, one needs to have regard to what Nienaber JA, said
in
Stellenbosch Farmers’ Winery Group Ltd & Another v
Martel ET CIE & Others
2003 (1) S A 11
(SCA).
To come to a
conclusion on the disputed issues, he said,
“
a
court must make findings on
(a)
the credibility of the various
factual witnesses,
(b)
their reliability, and
(c)
the probabilities.”
Proceeding,
Nienaber J A said:
“
As
to (a), the courts’ finding on the credibility of a particular
witness will depend on its impression of the veracity of
the witness.
That in turn will depend on a variety of subsidiary factors such as
(i) the witness’s candour and demeanour
in the witness-box,
(ii) his bias, latent and blatant, (iii) internal contradictions in
his evidence, (iv) external contradictions
with what was pleaded or
put on his behalf, or with established fact or with his own
extracurial statements or actions, (v) the
probability or
improbability of particular aspects of his version, (vi) the calibre
and cogency of his performance compared to
that of other witnesses
testifying about  same incident or events. As to (b), a witness’
reliability will depend, apart
from the factors mentioned under (a)
(ii), (iv) and (v), on (i) the opportunities he had to experience and
observe the event in
question and (ii) the quality, integrity and
independence of his recall thereof. As to (c), this necessitates an
analysis and evaluation
of the probability or improbability of each
party’s version on each of the disputed issues. In the light of
its assessment
of (a), (b) and (c) the court will then, as a final
step, determine whether the party burdened with the onus of proof has
succeeded
in discharging it. The hard case occurs when a court’s
credibility findings compel it in one direction and its evaluation
of
the general probabilities in another. The more convincing the former,
the less convincing will be the latter. But when all factors
are
equipoised probabilities prevail.”
Coming
to the Plaintiff’s and the Defendant’s witnesses, the
following is noteworthy. The evidence needs to be considered
in its
entirety for the court to arrive at a balanced and a value judgment.
PLAINTIFF’S
WITNESSES
[11]
They testified basing their testimony on the documents that the court
had been furnished with. These are:
11.1
the letter of introduction
11.2
the office accommodation form
11.3 the Plaintiff’s
letter addressed to the Defendant dated 17 May 2005
11.4 the e-mail
dated 26 May 2007 addressed to Marais by Corne van Niekerk appearing
on page 13 of Bundle C.
11.5 the unsigned
Plaintiff’s offer to lease on pages 14 – 18 of Bundle C,
and
11.6 the Plaintiff’s
letters to the Defendant dated 1 and 3 June 2005
11.7 the offer to
lease prepared by the Plaintiff found on pages 59 – 63 of
Bundle C
11.8 the Defendant’s
acceptance of the offer to lease found on pages 49 of Bundle C
11.9 Marais’
e-mail statement on page 52 of Bundle C
11.10
the signed lease agreement concluded between the Defendant and
Nanoteq on pages 64 – 80 of Bundle C
THE
DOCUMENTS AND WITNESSES
[12]
12.1 Avant testified
about the lease that Eagan told her was due to expire on 26 May 2005.
This is the Kagisano lease which expired
on 26 May 2005
12.2 The office
accommodation form that Avant testified about that she said was sent
to Marais early in April 2005 is found on page
9 of Bundle C. This is
the document that is said to have been successfully faxed to Marais.
12.3 The document
that was successfully faxed to the respective landlords is the letter
of introduction on page 7 of Bundle C.
12.4 Avant further
testified about Nanoteq’s interest in the Defendant’s
property which she telephonically discussed
with Eagan. The letter to
the Defendant dated 17 May 2005 supports this. The document has
already been referred to. The letter
was received by the Defendant.
12.5 The letter of
17 May 2005, the letter of introduction and the office accommodation
form were drafted in the normal course of
business when, according to
Mr Du Plessis, no litigation between the parties was anticipated.
This appears to be correct. No ulterior
motive was shown or proved in
the writing of the documents.
12.6 The document
that Avant said was requested by Marais exists and was signed by him
representing Nanoteq. Marais confirms this.
The e-mail on page 13 of
Bundle C also confirms this.
12.7 That Avant
played a major role in this matter, according to Mr Du Plessis, is
borne out by Marais signing the offer to lease,
prepared by the
Plaintiff. He signed, according to Mr Du Plessis, accepting the
contents of clause 14 which reads:
“
On
acceptance of this offer, JHI Real Estate Limited shall be deemed to
have earned commission in accordance with the tariff recommended
from
time to time by the South African Property Owners Association
(SAPOA). Such commission becomes payable by the Landlord on
signature
of the Lease Agreement by the parties hereto, or occupation of the
Premises being given to the Tenant, whichever is the
earlier”.
12.8
Mr Du Plessis submitted that Marais would not have signed the offer
to lease, if indeed, the Plaintiff had not been entitled
to its
commission.
THE
DEFENDATS CASE
[13]
Mr Clavier, on behalf of the Defendant, submitted that Eagan had not
received the Plaintiffs letter of introduction. The difficulty
with
the submission, as Mr Du Plessis correctly pointed out, is that this
appears to be the only document that the Defendant never
received as
all the others were received. The other problem is that it is not
denied that the document was successfully faxed to
the Defendant’s
offices as shown by the fax activity report on page 8 of Bundle C.
the allegations of the Plaintiff’s
letter faxed to the
Defendant dated 17 May 2005 were never disputed in writing when one
would have expected Eagan to have done
so. This, notwithstanding the
fact that Eagan was aware that the Defendant would have to pay the
Plaintiff’s commission in
the event that it was found that the
Plaintiff had, in fact, introduced Nanoteq to the Defendant’s
property. Eagan’s
concessions in no way help the Defendant as
they instead bolster the Plaintiff’s case. This has been
demonstrated above.
Clearly Eagan contradicted himself to a point
where it became clear that his version was improbable. He, when in a
tight corner,
under cross examination produced absurd answers. The
aspect of the Defendant’s acceptance of Nanoteq’s offer
to lease
and the problems that it created for Egan when trying to
give meaning thereto is one example. He claims to have introduced
Nanoteq
to the Defendant’s property on 11 or 12 May 2005 when,
on his own version that cannot be correct. He obviously contradicted

himself on this aspect as well. Having regard to the fact that, he
testified that Nanoteq’s representatives, at the time,
had not
even viewed the property and that they were not even aware that they
at the time, had had unrestricted access to the Defendant’s

property, his version of introducing Nanoteq to the property, cannot
be correct.
Marais
and Eagan contradicted each other very badly. Eagan testified that
Marais had told him that the Plaintiff had not introduced
Nanoteq to
the Defendant’s property and that it had been Eagan who, in
fact, had done the introduction. Marais disagreed
adding that Eagan
had only provided him with information about the Defendant’s
property when they discussed telephonically
on 17 May 2005. This is a
very serious contradiction. Eagan testified that Marais had told him
that Nanoteq had not been interested
in the Regency Court building.
This, Marais denied adding that Eagan’s testimony that Nanoteq
had deliberately put in a low
offer had been incorrect.
Eagan,
under cross examination, testified that the offer to lease referred
to in the document on page 49 of Bundle C was not the
offer to lease
prepared by the Plaintiff. Marais, instead, under cross examination
conceded that the document referred to therein
was, in fact the offer
to lease prepared by the Plaintiff. Asked by the court, Eagan
testified that the Defendant and not Nanoteq,
had presented the offer
to lease to Nanoteq. Marais did not agree that Nanoteq knew by 17 May
2005 that it would lease the Defendant’s
property.
Marais
testified that during his first conversation with Egan, Eagan only
gave him the size of the property thereby contradicting
Eagan who had
testified that he had given Marais all the relevant information of
the Defendant’s property. Marais, at the
time, had not been
given any other details of the property as Nanoteq had still been
interested in the Regency Court Building.
What
is particularly strange and intriguing is that Eagan testified that
Marais had told him during their telephone discussion of
17 May 2005
that he (Eagan) had introduced Nanoteq to the Defendant’s
property and that Avant had introduced him to the Regency
Court
building. Marais further told Eagan that he had told Avant not to
show him any further buildings as Eagan had introduced
him to the
Defendant’s property. Marais denied this and said that Eagan
had never discussed the Plaintiff’s involvement
with him.
Marais only became aware of the dispute between the Plaintiff and the
Defendant on or about 9 June 2005.
CREDIBILITY
[14]
In cross examination, Mr Marais conceded that Eagan had discussed
some of the testimony that he (Eagan) had tendered with him.
He
stopped Eagan who had intended discussing about the telephone
discussion that they had had. This did not go down well with Mr
Du
Plessis who correctly pointed out that one would never know what Egan
and Marais had, in fact, discussed. This, according to
Mr Du Plessis,
placed the evidence of the two in doubt. This kind of behaviour is
indeed, worrisome.
Mr
Du Plessis found some of the testimony of Eagan and Marais
unsatisfactory. Mr Du Plessis submitted that Egan and Marais could

not give direct and definite answers to questions. Evidence has
demonstrated this. It is, indeed, not clear how and why Eagan would

receive all the other relevant documents but not the Plaintiff’s
letter of introduction of 14 April 2005. He provided no
acceptable
answer to the questions. Marais’s testimony is that he may and
may not have read the Plaintiff’s office
accommodation form on
14 April 2005. Marais could not explain why the offer to lease
prepared by the Plaintiff was used without
removing the Plaintiff’s
logo, Plaintiff’s name, Avant’s name and clause 14 which
deals with the Plaintiff’s
commission. He ended up giving
absurd and ridiculous answers. There was no acceptable answer
forthcoming to the question why they
could sign the offer to lease
well aware of what it said especially while the offer to lease dealt
with the commission which they
knew the Plaintiff had not been
entitled to.
Eagan
could not tell the court why he did not respond in writing to the
serious allegations relating to the involvement of the Plaintiff
in
the introduction of Nanoteq to the Defendant’s property. The
Plaintiff’s letter of 17 May 2005 to the Defendant
specifically
stated that Nanoteq had been the Plaintiff’s client. The answer
was, in deed, not helpful. Both Eagan and Marais
could not give a
plausible answer to what the first sentence of the document on page
49 of Bundle C meant. They substituted words
ending up telling the
court that the document was what it looked like because of an
oversight. Aside the fact that the answers
were intriguing they were
also absurd and unhelpful.
[15]
Mr Du Plessis submitted that the Defendant’s case is tainted
with improbabilities. This seems to be the case.
Having
regard to the fact that the Defendant received the other documents,
it is highly unlikely and improbable that it did not
receive the
letter of introduction of 14 April 2005 as well as the office
accommodation form. It is, as Mr Du Plessis correctly
submitted,
highly unlikely and improbable that the offer to lease referred to in
the first sentence of the Defendant’s acceptance
of offer to
lease on page 49 of Bundle C is not the Plaintiff’s offer to
lease that was sent to Marais. Marais and Eagan
tried to run away
from the fact that the offer to lease therein referred to is the
offer to lease prepared by the Plaintiff. They,
however, failed
dismally ending up entangled in a web of untruths. Eagan testified
that he could not pick up the so-called mistake.
Indeed, the
discrepancy has left behind traces of incredibility. As Mr Du Plessis
correctly submitted, it is highly improbable
that both Egan and
Marais could have missed such a glaring mistake. The information
listed in the document follows the sequence
of the information in the
offer to lease prepared by the Plaintiff. This, according to Mr Du
Plessis, confirms that the offer to
lease referred to in the document
on pages 49 and 59 of Bundle C is the offer to lease that the
Plaintiff prepared. Told that this
is in fact the case Marais
testified that they had merely used the offer to lease as a pro forma
document. Mr Du Plessis submitted
that that could not be right
considering the fact that information such as the Plaintiff’s
logo; Avant’s name; the
Plaintiff’s address and telephone
numbers as well as clause 14 dealing with the Plaintiff’s
commission had not been
deleted. The submission has merit.
It
is understandable why Marais would, all of a sudden, want to be
sympathetic towards Avant talking of ‘striking a deal’

with Eagan regarding commission when the Plaintiff, according to him
and Marais, had not earned the commission which Marais would,
in any
event, not share with the state agent who had not earned it. Having
regard to the contradictory evidence of Marais and Eagan
it is highly
unlikely and improbable that Marais would have considered and taken
their conversation of 17 May 2005 as the introduction
to the
Defendant’s property.
Nanoteq
accepted the Defendant’s offer to lease on 27 May 2005. Eagan
under cross examination testified that he had taken
Marais to the
Defendant’s property after 27 May 2005. This is, indeed, absurd
in that Nanoteq could not have accepted the
Defendant’s offer
to lease and viewed the property thereafter. This, in itself, is
highly improbable.
Having
regard to the evidence in its entirety, Mr Du Plessis asked himself
why Marais and Eagan could behave in the manner that
they did. He
then submitted that the Defendant would eventually not pay the
Plaintiff’s commission while Nanoteq would also
benefit in that
the deposit payable would be less by R 16.000.00. Mr Clavier
submitted that it could hardly be said that the Plaintiff
had made
out a proper case for the relief that it seeks. He submitted that
Avant was a poor witness while Loot’s evidence
was in no way
helpful. Having regard to the issues to be resolved which in the end,
were narrowed down to two issues, and the kind
of evidence that the
Plaintiff produced through its witnesses as well as the detrimental
concessions and admissions that the Defendant’s
witnesses made
as the trial proceeded, I find it difficult to agree with Mr Clavier.
Evidence, on the contrary, has demonstrated
that the Plaintiff’s
witnesses were reliable and credible. The same, according to Mr Du
Plessis, cannot be said of the Defendant’s
witnesses. There is
merit in the submission. Mr Du Plessis seemed to rely on Marais’s
admission that Nanoteq faced the downscaling
of its staff from 100 to
50 when he correctly submitted that Nanoteq, at the time, must have
encountered financial problems. The
R16.000.00, in cash flow to
Nanoteq as Mr Du Plessis pointed out ‘would come in handy’.
This, in my view, cannot be
denied.
[16]
Mr Du Plessis submitted that Eagan and Marais were, indeed, poor,
unreliable and incredible witnesses. He is correct. Their
evidence is
clearly unacceptable.
[17]
Having regard to the evidence in its entirety, the established facts,
in respect of the introduction, are as follows:
17.1 The Plaintiff
successfully faxed the letter of introduction to the Defendant;
17.2 The Defendant
received the letter which came to the attention of Eagan;
17.3 Marais received
the letter that was sent to him on 14 April 2005. He read its
contents and was as at 11 or 12 May 2005 still
aware of its content;
17.3 The Plaintiff
duly introduced Nanoteq to the Defendant and its property;
17.4 Marais was
never introduced to the Defendant’s property by Eagan;
17.5 The Plaintiff
has, accordingly, earned its commission which the Defendant is liable
to pay to the Plaintiff;
17.6
The Plaintiff has made out a proper case for the relief that it
seeks.
[18]
In the result, the order I make is as follows:
1.
The Defendant is ordered to pay the Plaintiff
(a)
the sum of R 169 684.66;
(b) Interest on the
said sum calculated at the rate of 15.5% per annum calculated from
the date of the order to the date of the
final payment.
2.
Costs of suit.
M.W.
MSIMEKI
JUDGE
OF THE HIGH COURT
Heard
on: 03 December 2008
For
the Appellant: Adv J.A. Du Plessis
Instructed
by: G.J. Smit Attorneys
For
the Defendant: Adv. E.B. Clavier
Instructed
by: Brazington Shepperson McConnel