Helesi and Another v Tradepost 62 (Pty) Ltd t/a Africas Auction Authority and Another (1287/09) [2009] ZAECPEHC 54 (5 November 2009)

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[2009] ZAECPEHC 54
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Helesi and Another v Tradepost 62 (Pty) Ltd t/a Africas Auction Authority and Another (1287/09) [2009] ZAECPEHC 54 (5 November 2009)

IN THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE, PORT ELIZABETH)
CASE NO.:
1287/09
HEARD ON: 5/11/2009
In the matter between:
SIMPHIWE THANKSLORD HELESI First
Applicant
BONGANI BURNS NQINI Second
Applicant
and
TRADEPOST 62 (PTY) LIMITED T/A
AFRICAS
AUCTION AUTHORITY
First Respondent
WEST BANK LIMITED
Second Respondent
JUDGMENT
MAKAULA
AJ
[1] This application was launched on
13 May 2009 with applicant seeking an order in the following terms:-
“
1. Directing the Respondents to
deliver the vehicle Toyota Quantum with       registration
Number
CG 14204 to the First Applicant, pending the final
determination of this
application;
Directing the Respondents to deliver
the registration documents, including a document authorizing the
Second Applicant to register
the Land Rover Discovery with
registration numbers DML 523 EC in his name;
Directing the applicant to pay the
costs of this application;
Directing the Applicants be granted
further and/ or alternative relief.”
[2] The first respondent opposed the
application and filed a counter application seeking the following
order:
“
1. That the Second Applicant be compelled to pay to the First
Respondent
the sum of R162 000,00 plus VAT, i.e. R184 680,00;
That the Second Applicant pay to the
First Respondent interest on the aforegoing sum at the legal rate
of 15,5% per annum from
due date, being the 26
th
of March 2009, to date of payment;
That the Second Respondent be ordered
to pay the costs of this Counter Application as between attorney and
client.
Further and/ alternative relief.”
[3] The following facts are common
cause :
3.1 The first applicant is involved in
the Taxi Industry as a business person and the second applicant is a
medical practitioner
practicing as such;
3.2 On 25 March 2009 the first
respondent auctioned cars on behalf of the second respondent which
were repossessed by the latter
from its defaulting customers;
3.3 On 24 March 2009 the second
applicant and
Dumisane
Madikane
went to preview
the motor vehicles and second applicant filled in what is called a
Buyers Registration Form in which he appointed
as
his representative
Dumisane
Madikane
;
3.4 On 25 March 2009, the first
applicant and
Tango Nqini
attended the auction sale.
Tango
Nqini
bided for a Toyota
Quantum (Quantum) and a Land Rover Discovery (Land Rover);
3.5 The purchase price for the Quantum
was R180 000,00 plus commission, book fee and VAT which came up to
R214 778,00 and the Land
Rover for R195 000,00 plus commission, book
fee and VAT which came up to R232 580,00.
3.6 On 6 March 2009, the first
applicant and second applicant attended
to the office of
the first respondent to pay for both motor vehicles.
On       arrival they were presented with
invoices
for both vehicles. The        Quantum
was invoiced at R18 000,00 and no longer at R180 000,00
and
the Land Rover at the same price as bided for. He then paid
both  amounts
as
invoiced. It is not disputed though by the applicants        that
Mandy  Snapes,
who is an employee of the first respondent,        made
a mistake when she captured the
price of the Quantum by
capturing   R18
000,00  instead of R180 000,00.
3.7 Applicants were then given
the registration papers, a letter authorizing        that

the quantum be registered in the name of the second applicant
and the keys to the

quantum. The applicants could not get the        registration
papers for the Land Rover as
they were at the head office        of
the second respondent in Cape Town.
3.8 When they were at the gate, the
security guard queried the         correctness
of the
purchase price of the quantum and refused to
allow   it
through
until the purchase price was corrected and bid
amount paid.  The respondents had to leave the quantum

there.
3.9 The first applicant armed
with the registration papers went to register         the
quantum in his name even though it was still with the first
respondent. Having

registered it, first applicant sought delivery of         the
Quantum and the registration
papers for the Land Rover. The
first respondent
refused to deliver the Quantum
and did not give him         the
registration papers of the Land Rover claiming that they
would
only do so upon
payment of the balance of the purchase price of the
Quantum.
That refusal led to the present application.
[4] The applicant’s argument as I
understood it, is that in spite of the initially agreed amount of
R180 000,00, the first respondent
unilaterally changed it by issuing
an invoice of R18 000,00 thus making a new offer which in turn was
subsequently accepted by
the second applicant by paying the invoiced
amount. Since the second applicant paid by cheque, in terms of the
residual rule
ownership passed when the cheque was met by the bank,
so the argument went. The second leg of the second applicant’s
arguments
is that the respondents cannot rely on the mistake made by
Mandy Snape
in order to escape liability in terms of the new agreement because of
the application of
the
doctrine of quasi mutual assent.
For
purposes of this judgment I shall not deal with the principles
referred to by the applicants for the reasons to follow.
[5] The respondents’ argument on the
other hand is to the effect that there was no agreement between the
first applicant and the
respondents and therefore he has
no
locus standi
to bring the
application. The respondents further submitted that the issuing of a
wrong invoice did not constitute a variation
of the existing
agreement because there was no consensus between the parties to vary
the purchase price and therefore variation
could not have occurred.
The invoice, so the argument went, was just an instrument used in the
execution of the agreement which
already existed.
[6] When I perused the Buyers
Registration Form (the form) which was signed by the second applicant
it has conditions which appear
thereon. Before, I deal with the
conditions, the form reflects that the second applicant appointed
Dumisane Madikane
as
his representative. The form reads thus:
“
Conditions
for sale of sale of movable assets by auction
In
respect of all goods offered for sale at the auction the highest
bidder shall be the Purchaser. The auctioneer has the right
to
control and regulate the bidding and may withdraw any goods on
auction at any time before the sale thereof.
On
the fall of the hammer each sale shall be finally and irrevocably
concluded
, subject only to such suspensive conditions as may be applicable to
the goods and have been announced in respect thereof, the
risk in the
goods sold shall pass to the Purchaser. Ownership of the goods shall
pass to the Purchaser upon full and final payment
of the purchase
price/ default price. In the event of a dispute regarding the
identity of the highest accepted Purchaser, the
auctioneer may
appoint the purchaser or he may immediately re-auction the lot. The
auctioneer’s decision shall be final and
binding. The auctioneer
is not responsible for any errors of description of goods as
indicated on the auction catalogue or mentioned
during the auction.
The Purchaser shall be deemed to have inspected and examined the
goods, which they purchase. All sales are
final and Voetstoets and
the Purchaser shall have the obligation to acquaint themselves with
the condition and state of the goods
purchased by them. Neither the
seller of the goods nor the auctioneer give any warranties or
guarantees or make any representations
in regard to the condition or
state of any goods on auction. A buyer’s premium may be leveled
and, if so, will be announced
at the start of the auction. All goods
sold to the Purchasers at the auction, shall after the sale thereof
remain on the auction
premises at the Purchasers’ risk, in
particular for any loss which may occur in regard to the goods
purchased. All bids are
exclusive of VAT. All goods sold may only
be removed from the auction premises and possession of goods
shall
only be given to the Purchaser thereof after payment of the purchase
price and on presentation of a paid invoice thereof in
full to Aucor.
The Purchaser shall not be entitled to cancel the sale as a result
of the failure of the Seller to deliver or sign the required

documents in a reasonable time. Aucor shall under no circumstances,
be liable to the purchaser for any losses or damages suffered
by the
Purchaser as a result of the termination of any sale concluded in
respect of any goods or, the failure or liability of Aucor
to deliver
any of the goods, in an amount exceeding the value of the goods in
question. In the event of any Purchaser failing
to pay the full
purchase price (“the default price”) of any goods purchased
within the prescribed time or falling to comply
with any of these
conditions of sale Aucor shall have a lien over and shall have the
right to resell such goods by public auction
or private auction or
private sale without notice to the Purchaser, who shall forfeit his
deposit, which Aucor shall be entitled
to retain, without prejudice
to any other claim which Aucor may have against Purchaser by reason
of the latter’s breach
of
these Conditions of Sale. Should Aucor re-sell any such goods and
should the net proceeds thereof (after deducting commission
and all
costs) be less than the default price the Purchaser shall forthwith
upon demand pay to Aucor, as damages, such difference.
The Purchaser
consents to the jurisdiction of the Magistrate Court in the event of
it becoming necessary for Aucor to take any
legal action against the
purchaser, the Purchaser agrees to pay all the attendant costs and
expenses incurred, as between attorney
and own client. The Purchaser
shall be bound by all announcements made by the auctioneer at the
commencement of and during the
auction irrespectively of whether he
is present at the time such announcements are made. For all
purposes, including litigation,
relating to and arising from these
conditions the Purchaser determines as his
Domicilium
citandi et executandi
the address inserted by him on the buyer’s card issued to him at
the auction and signed by him. Save for the announcements
referred
to above,
no
variations or announcements thereto shall be of any force or effect
unless reduced to writing and signed by both parties.
No
indulgence which Auctor may grant to the Purchaser shall prejudice or
constitute a waiver of the rights of Aucor, who shall not
thereby be
precluded from exercising any rights against the Purchaser which may
have arisen in the past or might arise in the future.
SURETY
In
the event of the Purchaser purchasing any goods at the auction as
agent for and on behalf of any other person, company, close

corporation or other entity or party the Purchaser hereby binds
himself as surety and co-principal debtor with his principal for
all
the obligations of his principal for all goods purchased by him at
the auction for his principal and including, in particular,
the
obligation to pay the purchase price for such goods to Aucor.” (
my
underlining
)
[7] It is clear that there was no
agreement between the respondents and first applicant in terms of the
form. The form stipulates
that a contract of sale between the second
applicant and the respondents would be concluded on the fall of the
hammer. It is further
apparent from the form that any variation or
amendment to the contract would have to be in writing and signed by
both parties.
The contention by the second applicant is thereof
misplaced and cannot stand in the light of the agreement of sale he
entered into
with the respondents.
[8] It is without doubt that after the
conclusion of the public auction the parties were
ad
idem
regarding the purchase
price of the Quantum that it was R180 000,00 hence
the second respondent according to him
was surprised to find out the
following day that the purchase price had dropped to R18 000,00. It
really boggles the mind to hear
an argument like the one presented by
the applicants. It is inconceivable and does not make business sense
for the respondents
to unilaterally drop the purchase price by R162
000,00 and without communicating that to the second applicant. The
second applicant
had inspected the Quantum before and was satisfied
with the purchase price thereof. How on earth can it be dropped by
such an
amount for no tangible reason. This is said in the back drop
of what the second applicant avers that immediately when they reached

the gate it was brought to their attention by the security guard of
the applicant that there was a mistake regarding the amount
reflected
on the invoice as it did not tally with the amount appearing on the
documents in his possession. It was immediately
communicated to the
applicants that the lady who captured the information made a mistake.
The mistake is conceivable because only
one digit is missing that is
“zero”. That missing “zero” makes the whole difference.
The actions of the applicants are
really suspicious because instead
of clearing a glaring mistake with the respondents, they decided to
use the documents at their
disposal to register the Quantum in the
name of the first applicant. The actions of the applicants are
really disingenuous. That
is even borne out by the fact that they
decided keep quiet because the difference in money was “to their
own advantage”.
[9] The second applicant had an
obligation to pay the purchase price which was R180 000,00 plus the
other additions. The first
respondent in turn had an obligation to
deliver to the second applicant the Quantum upon the purchase price
being paid. Since the
purchase price had not been paid, it could not
have been expected of the respondents to have delivered the Quantum.
The residual
rule and
quasi
mutual assent
relied upon
by the second applicant are not applicable in this instance in the
light of the agreement entered into with the respondents
as evidenced
by the form. If there was to be variation, it would have been in
terms of the agreement between them.
[10] The papers in respect of the Land
Rover were withheld by the respondents for no reason. They did not
have a right to refuse
to release them because there was no dispute
regarding the Land Rover. Furthermore, the papers were tendered
after this application
had been launched. The application was
launched on 13 May 2009 and served on the respondents 14 May 2009.
The documents were forwarded
to the second respondent’s attorney
under cover of a letter dated 10 June 2009. Surely the second
applicant would be entitled
to the costs thereof.
[11] For the reasons alluded to in the
preceding paragraph the order sought in the first prayer of the main
application cannot succeed.
I hold that the contract entered into
between the parties on 25 March 2009 had not been rescinded or
varied. It is still valid
and the second applicant is still bound by
the terms thereof.
[12] In the result I make the
following order :
1. That the order sought directing the
respondents to deliver the Toyota Quantum with registration letters
and numbers CG 14204
to the first applicant is dismissed and the
applicants are ordered to pay the costs of the application one
paying the other to
be absolved;
2. That the respondents are ordered
to deliver to the second applicant the registration documents
including a document authorizing
the second applicant to register the
Land Rover with registration number DML 523 EC in his name and the
respondents are ordered
to pay the costs thereof up to the 10
th
June 2009 when the tender was made; one paying the other to be
absolved;
3. That the second applicant is
ordered to pay the first respondent the balance of the purchase price
being an amount of R184 680,00
and the second applicant is ordered to
pay the costs of the counter-application.
_________________
M. MAKAULA
ACTING JUDGE OF THE HIGH COURT
DATE DELIVERED : 1 DECEMBER 2009
FOR THE APPLICANTS : ADV NOBATANA
INSTRUCTED BY : SIMPHIWO JACOBS &
ASSOCIATES
STARPORT BUILDING
140 GOVAN MBEKI
PORT ELIZABETH
FOR RESPONDENTS : MR SPRUYT
INSTRUCTED BY : FRIEDMAN SCHEKTER
75 SECOND AVENUE
NEWTON PARK
PORT ELIZABETH
FORM
A
FILING
SHEET FOR EASTERN CAPE JUDGMENT
PARTIES:
SIMPHIWE
THANKSLORD HELESI
BONGANI
BURNS NQINI
AND
TRADEPOST
62 (PTY) LTD T/E AFRICAS AUCTION AUTHORITY
WEST
BANK LIMITED
Registrar
CASE NO: 1287/2009
Magistrate:
HIGH COURT, PORT ELIZABETH-
EASTERN
CAPE LOCAL DIVISION
Supreme
Court of Appeal/Constitutional Court:
DATE
HEARD: 5 NOVEMBER 2009
DATE
DELIVERED: 01 DECEMBER 2009
JUDGE(S):
MAKAULA AJ
LEGAL
REPRESENTATIVES -
Appearances:
for
the State/
Plaintiff(
s)/Applicant(s)/Appellant(s):
ADV NOBATANA
for
the accused/
defendant
(s)/respondent(s):
MR SPRUYT
Instructing
attorneys:
Plaintiff(s)/Applicant(s)/Appellant(s):
SIMPHIWO JACOBS & ASSOCIATES
Respondent(s)/Defendant(s):
FRIEDMAN SCHEKTER
CASE
INFORMATION -
Nature
of proceedings
:
CIVIL MATTER
Topic
:
DAMAGES