About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Eastern Cape High Court, Gqeberha
SAFLII
>>
Databases
>>
South Africa: Eastern Cape High Court, Gqeberha
>>
2023
>>
[2023] ZAECQBHC 37
|
|
Geldenhuys N.O and Others v Coega Development Corporation (Pty) Ltd (1069/2016) [2023] ZAECQBHC 37 (13 June 2023)
IN THE HIGH COURT OF
SOUTH AFRICA
(EASTERN CAPE
DIVISION, GQEBERHA)
NOT REPORTABLE
Case no: 1069/2016
In the matter between:
FREDERICK
FRANCOIS GELDENHUYS N.O
First
Applicant
PETRUS
WAGNER HANCKE N.O
Second
Applicant
LOUISE
HANCKE N.O
Third
Applicant
JOHANNA
PETRONELLA JULINA HANCKE N.O
Fourth
Applicant
and
COEGA
DEVELOPMENT CORPORATION (PTY) LTD
Defendant
JUDGMENT
Govindjee J
[1]
The plaintiffs instituted the action in
their capacity as the duly appointed trustees of the Mentorskraal
Family Trust (‘the
Trust’), trading as JBay Plant Hire.
The defendant (‘Coega’) is a duly registered company
operating in Gqeberha.
The action arises from Coega’s award of
a tender to Pro-Khaya Construction CC (‘Pro-Khaya’) to
build a school
at Sea Vista, St Francis Bay (‘the project’).
Pro-Khaya sub-contracted a portion of its work to various small,
medium
and micro-enterprises (‘SMMEs’), one of which was
Qingqani Ma-afrika Construction CC (‘QMC’).
The claim
[2]
The Trust claims that it was approached by
QMC during the middle of 2015. QMC required the rental of machinery
and the supply of
material from the Trust for the construction of
roads. QMC advised that Coega was the implementing agent in respect
of the project
and that the Trust was to approach Coega regarding
payment for the rental of machinery and supply of material to QMC.
[3]
The plaintiffs rely on an oral agreement
with Coega, represented at the time by Mr H Petersen (‘Petersen’),
to support
their claim. In terms of the agreement, it is alleged that
the Trust would supply the machinery and material to QMC for the
project,
and that it would render invoices for its services to Coega,
who would be liable to make payment of the invoices. The Trust
complied
with its obligations, providing QMC with machinery for rent
and material for road construction as requested, and in terms of
quotations
accepted by QMC. Invoices rendered were paid by Coega. In
respect of invoices dated at the end of August, September and October
2015, however, Coega paid only the sum of R150 000, leaving a
balance of approximately R400 000 outstanding.
The defence
[4]
Coega refused to make payment of the amount
claimed. It pleads no knowledge of the averment that QMC advised the
Trust that it (Coega)
was the implementing agent of the project and
that the Trust was to approach it regarding payment. Coega denies
that it concluded
an oral agreement with the Trust. Its pleaded
defence is that QMC was financed by Rapid Infrastructure Development
Agency (Pty)
Ltd trading as Small Business Finance Support (‘SBFS’)
in the amount of R820 000, and would cede all its payments
from
Pro-Khaya to SBFS. SBFS would, as part of its technical and
after-care support, process and pay all amounts due to QMC suppliers,
but only after receipt of the capital amount from Pro-Khaya and after
QMC had verified the amount to be paid to a supplier. Coega
did not
plead that the Trust was aware of this arrangement.
[5]
Two
special pleas, related to misjoinder and non-joinder, were dealt with
at the commencement of the trial and were dismissed by
way of an
ex
tempore
ruling
following argument.
[1]
The evidence
[6]
Mr Petrus Hancke (‘Hancke’),
the second plaintiff and one of the trustees of the Trust, testified
that he had represented
the Trust when it entered into an agreement
with Coega, represented by Petersen. He had summarised the terms of
the agreement,
as he understood them, in unanswered correspondence to
Petersen, as follows:
‘
1.
Ons is gedurende the middle van verlede jaar genader deur Ma Africa
vir die huur van masjienerie en voorsiening van padbou material.
2. Dit is algemene kennis
dat voormelde firma oor geen kredietwaardigheid beskik nie en dat ons
nie bereid was om enige risikos
met hulle te loop nie.
3. Op hulle versoek het
ons met u telefonies gepraat, wie ons die versekering gegee het dat
jul organisasie in beheer van al die
fondse vir die spesifieke projek
is en dus sal toesien en onderneem da tons betalings sal ontvang.
4. Op sterkte van hierdie
versekering duer u het ons voortgegaan en die dienste gelewer soos
deur Ma Africa op kwotasie aanvaar
en deur hul versoek.
5. Rekeninge is aan u
gelewer en u het ooreenkomstig betalings gemaak aan ons. In November
het u ons meegedeel dat ‘n dispuut
tussen Ma Africa as sub
kontrakteur en die hoof kontrakteur ontstaan het. U het egter steeds
oorbetalings aan ons gemaak in terme
van u onderneming…’
[7]
The correspondence was dated 24 January
2016 and addressed to ‘Die Senior Besigheids Adviseur, Coega
Development Corporation,
Port Elizabeth’. Petersen’s
email address, to which the correspondence had been sent, was
reflected as ‘h***.***@coega.co.za’.
[8]
Hancke confirmed the case of the plaintiff,
as reflected in the paragraphs of the particulars of claim, as cited
above. He and Petersen
agreed that delivery notes would be signed off
by QMC personnel, following confirmation that what appeared on those
notes had been
delivered to site. That was invoiced for, on a monthly
basis, and a summary of the invoices provided to QMC. Those documents
would
be taken to Petersen and had initially been met with payment
arranged by him.
[9]
A payment of R353 620 had been
received on 14 August 2015, and appeared in the QMC general ledger.
Petersen had attended to
the payment upon receipt of a statement and
following a telephonic discussion that payment was required.
According to Hancke, he
communicated with Petersen by either calling
his mobile phone or by telephoning Coega and being put through to
Petersen by a receptionist.
The amount received corresponded with a
statement dated 5 August 2015, and presumably related to goods
supplied up until the end
of July 2015. The Trust’s bank
account reflected the payment, which had followed the delivery of
invoices to Petersen. Hancke
could not make sense of the description
‘Rida’, which appeared alongside the payment. He
understood the payment to
emanate from Coega.
[10]
Hancke described the goods and services
reflected in three invoices to QMC, dated the end of August,
September and October 2015.
A statement dated 29 February 2016
summarised the position as follows:
Date
Description
Debit
Credit
08/31/15
Tax
invoice – August
R148
148
10/12/15
Payment
received
R148
148
09/30/15
Tax
invoice - September
R162
714
10/12/15
Payment
received
R1852
10/31/15
Tax
invoice – October 2015
R232
016
[11]
Only a single payment of R150 000 had
been paid in respect of the three invoices. The payment had
been received on 12
October 2015. On this occasion the words ‘Coega
Development Corporation’ appeared in the description. That
payment
had been broken into two, so that a part payment for the
September 2015 invoice was reflected (R1852). The balance of R392 878
remained outstanding and formed the basis of the action.
[12]
Hancke explained that he had spoken to
Petersen prior to receipt of the R150 000 payment. Petersen
agreed to make payment of
that amount immediately, and undertook to
pay the balance as soon as possible. In support of this, Hancke
highlighted that the
24 January 2016 correspondence, quoted above,
concluded with reference to an outstanding balance. That
correspondence had been
forwarded again on 29 January 2016, without
response, and on 23 February 2016, now coupled with the threat of
institution of legal
proceedings.
[13]
Hancke testified that he always dealt with
Petersen in claiming the payment of the invoices and knew of no other
party other than
Coega. During cross-examination, he explained that
although QMC required the services, the arrangement was only
concluded following
the discussion with Petersen. QMC had explained
to Hancke that money for the project would be administered by Coega.
Having been
approached by QMC for rental of machinery and supply of
material, Hancke had telephoned Petersen. He had obtained his details
and
number from QMC, via his son, who explained that Petersen should
be approached for payment of whatever work or machines were provided
to QMC. On the strength of the conversation that followed with
Petersen, he had decided to render the services to QMC, who were
considered a business risk.
[14]
No documentation had been provided to
Hancke by QMC explaining the nature of its relationship with Coega,
and forming the basis
of the Trust’s claims for payment from
Coega. Hancke explained that Petersen had been easily trusted given
previous business
undertakings with various departments of Coega. The
oral agreement was concluded on the first occasion he had spoken to
Petersen,
during the middle of 2015. Hancke provided Petersen with
the background for the call, based on the request for services from
QMC.
Petersen confirmed that he would be responsible for the finances
and that Hancke could rest assured that payment would be received.
[15]
The process for payment was also agreed
telephonically. Delivery notes and invoices were to be signed off by
QMC before payment
would be received. Hancke, feeling assured by the
discussion, agreed to proceed. No documentation was received at the
time confirming
that Petersen was in fact employed by Coega and
making undertakings on its behalf.
[16]
Hancke testified that he was unconcerned
that payment received on 14 August 2015 referenced ‘Rida’
as opposed to Coega.
He had not noticed that descriptor and simply
accepted that Petersen had made the necessary payment arrangement.
The only other
relevant payment received, on 12 October 2015, had
referenced ‘Coega Development Corporation’.
[17]
Petersen
was the only witness called by Coega. He testified that he was
employed by Coega and was the programme manager for SBFS,
which was a
subsidiary of Coega. SBFS was a private company which financed
businesses and provided business support to meet Coega’s
social
and economic obligations.
[2]
[18]
There was no written contractual
relationship between Coega and QMC. QMC had approached SBFS for
support following Coega’s
awarding of the project to Pro-Khaya.
They required access to plant hire, material and wages in order to
accept a sub-contractor
arrangement. The member of QMC, Ms Sokupe
(‘Sokupe’), had signed two acknowledgements of debt (in
her personal capacity
and as member of QMC) in favour of SBFS for
payment in the total sum of R820 000. An ‘agreement of cession
and pledge’
between QMC (as cedent) and SBFS (as cessionary)
was signed. The introduction to the agreement explains as follows:
‘
1.1
The Cedent has been contracted to carry out certain works by Coega
Development Corporation (Pty)
Ltd (“CDC”).
1.2
The Cessionary has loaned and advanced the Cedent a sum of money to
enable the Cedent to
fulfil its obligations to CDC in terms of the
contract.
1.3
The Cedent is desirous of transferring all right, title and interest
in and to payments
due to him by CDC in respect of the abovementioned
contract as are sufficient to cover its debt to the Cessionary for
the duration
of the contract.’
[19]
Petersen explained that Coega would not
have been involved in Pro-Khaya’s decision to appoint QMC as a
sub-contractor. QMC
required funding to accept that appointment and
approached SBFS, who entered into the two acknowledgements of debt
and cession
arrangement to protect their investment. He explained
that SBFS would extend limited cover for the benefit of QMC up to the
amount
of R820 000. The agreement would not be open-ended so
that any invoices submitted by the Trust would be met with payment by
Coega. Payments would be subject to Pro-Khaya making payment to QMC.
SBFS could only render services up to the total amount of
the
acknowledgments of debt signed by QMC, or based on payments received
by QMC from Pro-Khaya.
[20]
Petersen testified further that SBFS had
made both of the payments that the Trust had received, and not Coega.
The 12 August 2015
payment, in the amount of R353 620, had been
made from the RIDA account, and the statement reference was ‘Rida’.
The second payment, dated 12 October 2015, had been made from the
same account in the amount of R150 000. On this occasion
the
person making payment had erroneously inserted ‘Coega
Development Corporation’ as the reference.
[21]
The relationship between payments received
by QMC from Pro Khaya and payments made from the RIDA account to the
Trust was also explained.
Petersen’s suggestion that money
would be paid by Pro-Khaya prior to any payments to the Trust was,
however, not borne out
by the relevant journal entries prepared by
SBFS for QMC. As to the amounts received from Pro-Khaya, Petersen
suggested that Pro
Khaya had short-changed QMC because of a dispute
regarding the appropriate rate. This resulted in SBFS making use of
the ‘loan-facility’
in paying a larger amount to the
Trust. Petersen had, however, not represented Coega in making such
payments and had never indicated
to the Trust that he did so.
[22]
Petersen
acknowledged, during cross-examination, that his email signature made
reference to a ‘Small Business Finance
Unit
’,
as opposed to a separate legal entity.
[3]
An ordinary reader, he agreed, may well consider this to be a unit
falling within the larger Coega enterprise. His emails, including
his
signature, made no reference to the existence of a separate legal
entity apart from Coega. He conceded that, generally speaking,
suppliers to Coega would not be aware that an internal arrangement
had resulted in the use of RIDA to assist SMMEs. He suggested
that
Sokupe may have explained the position to Hancke, or may have been
expected to indicate its loan agreement with SBFS.
The issues
[23]
The
matter must be approached on the basis that the particulars of claim
sought to imply that Petersen had actual authority to conclude
an
agreement on behalf of Coega.
[4]
The plea over failed to raise authority as an issue, so that it may
be accepted that Petersen’s authority to bind Coega is
uncontested.
[5]
[24]
It
is for the plaintiff to prove the claimed contractual nexus on a
balance of probabilities. This relates to the identity of the
parties
to the contract as well as the terms of the agreement.
[6]
Proof of the terms of the contract include proof of the anterior
question whether both parties had the requisite
animus
contrahendi
,
and failure to do so will result in the plaintiff being
unsuccessful.
[7]
As the SCA
confirmed in
Africa
Solar (Pty) Ltd v Divwatt (Pty) Ltd
,
[8]
if, at the end of all the evidence, there is uncertainty as to
whether
animus
contrahendi
on the part of both parties had been established, it is the plaintiff
that fails.
Did the Trust enter
into an agreement with Coega?
[25]
The
first essential requirement for a contract is that there is an
agreement by two (or more) persons for future performance or
non-performance by one or more of them.
[9]
In ascertaining whether there was an agreement between the parties,
it is convenient to consider the matter from the perspective
of an
offer and acceptance.
[10]
The
agreement on which a contract is based may be actual or apparent. It
is actual when there is a true meeting of the minds of
the parties on
all material aspects of the contract. The parties have the same
intention concerning the subject-matter, namely
the performance or
non-performance in question, and this intention is expressed or
communicated by each to the other. It is apparent
when, despite the
lack of subjective consensus between the parties, there is an
objective appearance of agreement (or a reasonable
belief in the
existence of consensus) which the law will uphold as a binding
contract.
[11]
[26]
To
form an agreement it is necessary, firstly, that each party knows
what the other intends to do in the way of performance and,
secondly,
that each assents to the other’s intention. For an offer to be
capable of being turned into a contract by acceptance,
it is
necessary that the offer must contain definite terms of performance
and that it must be made with the intention of being
accepted by some
other person.
[12]
Acceptance
of an offer is an assent by the person to whom the offer is made to
be bound by the terms contained in the offer.
[13]
In order for the acceptance to constitute a contract it is necessary
that the acceptance be definite and unconditional, and also
that the
acceptor be a person to whom the offer was intended to be made.
[14]
An acceptance by some other person does not constitute a
contract.
[15]
[27]
In
Bird
v Sumerville and Another
,
[16]
for example, the court gave detailed consideration to the intended
recipient of an offer, holding that it was impossible to say
that the
appellant intended to make an offer to two respondents jointly in
circumstances where he did not know of the existence
of the second
respondent. Consideration was given to the expressed intention of the
appellant in making the offer (to the first
respondent only). As that
offer was not accepted by its recipient, the court held that no
contract of sale had been concluded.
[17]
[28]
The evidence establishes that the Trust,
via Mr Hancke (junior), offered to supply material and machinery to
QMC in return for payment.
The Trust’s intention, also
considering its communication with QMC, was that Coega would accept
the offer and assume responsibility
for payment. In fact, the offer
was communicated to Petersen, who communicated his agreement.
The
arrangement was concluded
orally, by way of
a brief telephone call. A second telephone call, seemingly equally
brief, related mainly to the invoicing process
and clarified the
relationship between Petersen’s principal and QMC.
[29]
Petersen was a Coega employee, performing
key functions for SBFS. His e-mail address reflected that reality and
the overall project
was a Coega project. He appeared to suggest,
during cross-examination, that it was incumbent on QMC to have
clarified its relationship
with SBFS to the Trust. There is simply no
evidence that it did so or that the Trust had any inkling that
Petersen represented
an entity other than his employer in his
dealings with it. Petersen had no difficulty in accepting that,
absent such communication,
any outside person would have been unaware
of the specifics of an internal financing arrangement involving SBFS.
Hancke’s
evidence, which must be accepted, was that his
dealings were with Petersen for payment and that, in that respect, he
knew of no
other entity other than Coega.
[30]
Petersen, however, had no intention to
contract on behalf of Coega. As the following excerpt indicates, and
as this court accepts,
he intended to accept the offer on behalf of
SBSF, an entity fulfilling a specific function for Coega:
‘
Is
it correct that you represented CDC [Coega] in an agreement for CDC
to pay for a SMME that was contracted by one of its contractors
Pro-Khaya?
No, absolutely not.
Did you ever make that
statement to the plaintiff?
No, absolutely not.
Why would you not have
made such a statement, why would the plaintiff believe otherwise?
We indicated that we will
make payment M’Lord on behalf of the CDC and maybe I must go
back to the engagements that we have
had with Mr Hancke jnr
.
My
engagement was in terms of the arrangements was with Mr Hancke jnr.
Mr Hancke jnr. contacted me via telephone and part of our
services as
support services that we provide, is to make payment on behalf of the
SMME’s that we fund…So, because
the payments are ceded
to us Mr Hancke contacted me…So we offer this product to our
client and the first and the initial
engagement was a brief
conversation that we had with Mr Hancke M’Lord and he
telephoned me and I confirmed who I am…So
I confirmed that we
were able to pay upon receipt of payment, because Qingani Ma-Afrika’s
payments they were not able to
pay themselves. So in that respect we
agreed to make payment based on the fact that the progress payments
are ceded to us…’
[31]
Put
differently, it may be accepted that the Trust’s initial
conversation with Petersen was intended to convey an offer to
Coega.
Petersen indicated his agreement, the Trust knowing full well that he
did so on behalf of a principal.
[18]
The Trust assumed, however, seemingly on the strength of their
discussions with QMC, that Petersen was expressing agreement on
behalf of Coega. The Trust was mistaken in doing so. In fact,
considering the evidence in its entirety, it is apparent that
Petersen never intended to contract on behalf of Coega and, judging
by the evidence of the external manifestations, the Trust was
not
truly in agreement with Coega. The ‘us’ and the ‘we’
in the quotation, above, are clearly references
to the SBSF, as
cessionary to QMC’s progress payments. This is, in effect,
Coega’s plea.
[32]
The
fact that somebody has authority to contract on behalf of a principal
does not mean that every time such person concludes a
contract they
do so as the principal’s agent:
[19]
‘
The
mere fact that he had the authority to bind his principal cannot
without more be proof of the fact that he did in fact act as
agent
for him … the question whether he acted as agent or not in a
particular case must be established from other circumstances.’
[33]
Even
though it is accepted for present purposes that Petersen had the
authority to bind Coega, he did not accept the offer and contract
on
its behalf, even though the Trust might have understood that he had
done so.
[20]
Mr
Ronaasen
relied on
Stellenbosch
Farmers’ Winery Group Ltd and Another v Martell & Cie SA
and Others
(
SFW
)
[21]
to argue that Petersen’s failure to respond to the
correspondence addressed to him on 24 January 2016 was a strong
indicator
in support of the Trust’s version. I disagree in the
circumstances, which I consider to be clearly distinguishable from
SFW
.
The letter was addressed some six months after the alleged contract,
as part of the process leading to litigation, which Petersen
explained was part of the reason for not responding. While he may not
have taken issue with much of the contents of the letter,
he did not
intend to contract on behalf of Coega.
[22]
The letter does not tilt the scale sufficiently. Considering the
evidence before me, the Trust has ultimately failed to discharge
the
onus of establishing the necessary
animus
contrahendi
and
proving a contract with Coega, represented by Petersen, on a balance
of probabilities.
[23]
Costs
[34]
I have considered
Mr
Ronaasen’s
submissions that
Petersen’s conduct in failing to explain to Hancke that he was
contracting with SBFS warrants the conclusion
that each party be
ordered to pay their own costs. In deciding to follow the usual
approach in respect of costs, I have been influenced
by the fact that
the defendant’s special pleas and amended plea were filed
during October 2020. Those pleas, read together,
ground the
defendant’s case in Petersen acting on behalf of SBFS, a
separate legal entity from Coega, and the denial of an
oral agreement
between the Trust and Coega. The plaintiffs nevertheless persisted in
their claim against Coega. They have been
unsuccessful and must be
ordered to pay the defendant’s costs, including the costs of
only one counsel, on the usual scale.
Order
[35]
The following order will issue:
1.
The plaintiffs’ claim is dismissed
with costs.
A GOVINDJEE
JUDGE OF THE HIGH
COURT
Heard
:
22-23 February 2021; 09-10 February 2023 and 11 April 2023
Delivered
:
13 June 2023
Appearances:
For
the for the Applicant:
Adv
OH Ronaasen SC
Club
Chambers
Gqeberha
Instructed
by:
Roelofse
Meyer Inc.
29
Bird Street
Central
Gqeberha
Tel:
041
585
3270
For
the Defendants:
Adv
N Msizi and Adv M Pango
Oasim
Chambers
Gqeberha
Instructed
by:
Pumeza
Bono Inc.
15
Annerley Terrace
Central
Gqeberha
Tel:
041 582 3823
[1]
See
Corvine
Investments CC v Advtech (Pty) Ltd t/a Property Division
[2022] ZAGPJHC 617 (‘
Corvine
Investments
’)
paras 43-46, 70.
[2]
The relevant submission to the Coega board reflects that the
subsidiary (SBFS) would focus on extending bridging finance to
Coega-contracted SMEs. Coega would commit its own resources to the
project and would control the payment cessions. One of the
key
objectives of SBFS would be to become sustainable and generate its
own revenue. A dormant subsidiary, Rapid Infrastructure
Development
Agency (‘RIDA’) could be used for the creation of an
entity that would provide bridging finance to Coega-contracted
SMEs.
[3]
See
Board
of Executors Ltd v McCafferty
2000 (1) SA 848
(SCA) (‘
McCafferty
’)
para 12, 15: different entities may be considered to be co-employers
of an employee in certain circumstances.
[4]
Ostensible authority was not pleaded: cf
Makate
v Vodacom Ltd
2016 (4) SA 121
(CC) (‘
Vodacom
’)
paras 33 – 42, 59, 119, 121. Unlike
Vodacom
,
the issue of authority was not dealt with in the particulars of
claim: see H Daniels
Beck’s
Theory and Principles of Pleadings in Civil Actions
(6
th
ed) (2002) at 13.28.1. Also see
Ying
and Another v South British Insurance Co Ltd
1957 (2) SA 194
(E) at 198F-H.
[5]
See
Durbach
v Fairway Hotel
1949 (3) SA 1081
(SR): the denial of the authority of an agent is a
special defence and must be specifically and unambiguously pleaded,
and not
left to be inferred from a general traverse of the
allegations in the declaration: at 1082.
[6]
Stucco
Italiano Decorators (Pty) Ltd v Nitida Wine Farm and Others
[2012]
ZAWCHC 123
para 61.
[7]
Africa
Solar (Pty) Ltd v Divwatt (Pty) Ltd
2002
(4) SA 681
(SCA) at 698B.
[8]
Ibid.
[9]
F
Du
Bois (ed)
Wille’s
Principles of South African Law
(9
th
Ed) (Juta) (2007) at 740. The Trust did not plead a contract
concluded with CDC by conduct or by quasi-mutual assent: see GB
Bradfield
Christie’s
The Law of Contract in South Africa
(8
th
ed) (LexisNexis) (2022) at 36-37;
Constantia
Graswerke BK v Snyman
1996
(4) SA 117
(W) (‘
Constantia
’)
at 124I-J, cited in
Vincorp
(Pty) Ltd v Trust Hungary ZRT
[2018]
ZASCA 35
(
Vincorp
)
para 32; Also see
Vincorp
,
especially at paras 27 – 33 and
Fischer
v Ramahlele
2014
(4) SA 614
(SCA) paras 13-14: it is generally for the parties to
identify the dispute and for the court to determine that dispute and
that
dispute alone.
[10]
Reid
Bros (SA) Ltd v Fischer Bearings Co Ltd
1943 AD 232
at 241.
[11]
Du Bois above n 9 at 737.
[12]
See du Bois above n 9 at 741. An offer can be accepted only by a
person to whom it was made or was intended to be made. An acceptance
by some other person does not constitute a contract and an offer
cannot be accepted by a person who does not even know of it:
at 743.
Also see
Blew
v Snoxell
1931 TPD 226
at 229-230: ‘an offer made by one person to
another cannot be accepted by a third … for the simple reason
that there
was no intention on the part of the one person to
contract with the other person whatever the subject matter of the
contract
may be.’
[13]
See
Levin
v Drieprok Properties (Pty) Ltd
1975
(2) SA 397
(A) at 409A-C.
[14]
Du Bois above n 9 at 742.
[15]
Du Bois above n 9 at 743. What determines who can accept an offer is
the intention of the offeror as proved by the terms of the
offer and
by any other admissible evidence:
Hersch
v Nel
1948
(3) SA 686
(A) at 691 – 693. Also see
Rudman
and Norman (Edms) Bpk
v
Dunell, Ebden & Kie Bpk
1959 1 PH A12 (O): an offer of renewal of contract was clearly
intended to be accepted by two company directors, rather than
the
company to whom the offer was addressed. It was held that the
company was not entitled to accept the offer.
[16]
Bird v
Sumerville and Another
1961
(3) SA 194 (A).
[17]
Ibid at 203F-H.
[18]
Cf
Cullinan
v Noordkaaplandse Aartappel-kernmoerkwekers Koöperasie Bpk
1972 (1) SA 761 (A).
[19]
M &
C Finance (Pty) Ltd v Segalo
1994 (1) SA 233
(O) at 235I – 236C.
[20]
Cf
National
and Overseas Distributors Corporation (Pty) Ltd v Potato Board
1958
(2) SA 473
(A) at 479 – 480; cf
Marais
& Others v Varicor Nineteen (Pty) Ltd
[2017]
ZASCA 46
(
Marais
)
paras 23 – 32. Also see
G
Glover ‘Agency in South Africa: Mapping its defining
characteristics’ in
Acta
Juridica
(2021) 243 at 267.
[21]
Stellenbosch
Farmers’ Winery Group Ltd and Another v Martell & Cie SA
and Others
[2002] ZASCA 98
para 22.
[22]
See
Vincorp
above n 9, paras 28, 31. The SCA confirmed, at para 32, that failure
to discharge the onus of establishing the necessary
animus
contrahendi
on the part of both parties is the end of the matter.
[23]
Vincorp
above n 9 para 32.
See
Marais
above
n 20 para 33;
South
African Eagle Insurance Company Limited v NBS Bank Limited
[2001] ZASCA 118
;
[2002] 2 All SA 220
(A) paras 26, 27;
Corvine
Investments
above
n 1 paras 60 - 63.