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2024
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[2024] ZAFSHC 50
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Pritchard v Mvubu and Others (6004/2023) [2024] ZAFSHC 50 (16 February 2024)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
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IN THE HIGH COURT
OF SOUTH AFRICA,
FREE STATE
DIVISION, BLOEMFONTEIN
Case
Number: 6004/2023
In
the matter between: -
BRINLEY
PRITCHARD
APPLICANT
and
ZINGISILE
MVUBU
FIRST
RESPONDENT
FREE
STATE GAMBLING, LIQUOR
AND
TOURISM AUTHORITY
SECOND
RESPONDENT
MCINTYRE
VAN DER POST INC
THIRD
RESPONDENT
CORAM
:
BUYS, AJ
HEARD
ON
:
01
FEBRUARY 2024
DELIVERED
ON
:
16 FEBRUARY 2024
[1]
This is the court’s judgment
in the opposed application in terms of which the applicant seeks the
following relief:
“
1.
It is declared that a valid sale agreement has come into existence on
17 October 2023
in respect of the Fist Respondent’s liquor
license registered in the name of ZINGISILE MVUBU under the name
Panos Liquor
Trading registered on the Erf 2[…], 271 Burgher
Street, Philippolis, Kopanong, Xariep with Registration Number:
FSG1[…].
2.
The First Respondent is ordered and directed to deliver to the
Applicant’s
attorney, within 5(Five) days of this order, the
liquor license registered in the name of
ZINGISILE MVUBU (under
the name Panos Liquor Trading registered on the Erf 2[…], 271
Burgher Street, Philippolis, Kopanong,
Xariep with Registration
Number: FSG1[…])
.
3.
Should the First Respondent fail or refuse to deliver the liquor
license (registered
in the name of
ZINGISILE MVUBU under the name
Panos Liquor Trading registered on the Erf 2[…], 271 Burgher
Street, Philippolis, Kopanong,
Xariep with Registration Number:
FSG1[…]
), then, the Sheriff of this court is authorised
and directed to take possession of the said liquor license from the
First Respondent,
or wherever it is found, and deliver it to the
Applicant or his Attorney.
4.
The First Respondent is ordered to sign within 5 (Five) days of this
order, all
documents to effect transfer of the liquor license in the
name of the Applicant.
5.
Should the First Respondent fail or refuse to sign all documents to
effect transfer
of the liquor license in the name of the Applicant,
the registrar of this Court is authorised to sign all documents to
effect transfer
of the liquor license in the name of the Applicant.
6.
The Third Respondent is order (sic) and directed to provide the
Applicant’s
attorney within 5 (Five) days with its trust
account banking details to effect payment of the purchase price.
7.
The Second Respondent is ordered and directed not to transfer the
abovementioned
liquor license (registered in the name of
ZINGISILE
MVUBU
) in the name of any third person, pending the outcome of
this case.
8.
The First Respondent to pay the costs of this Application.
9.
Any of the remaining Respondents, opposing this application, be
ordered to pay
the costs jointly and severally with the First
Respondent the one paying the others to be absolved, or, in such
proportion as in
the direction of the court.”
[2]
The relief sought by the applicant premised from an alleged purchase
agreement concluded between
the applicant and the first respondent in
terms of which the applicant allegedly purchased from the first
respondent a liquor license
in the name of the first respondent under
the name Panos Liquor Trading, registered on the Erf 2[…], 271
Burgher Street,
Philippolis, Kopanong, Xariep, with registration
number: FSG1[…] (“the liquor license”).
[3]
The applicant relies on two letters in support of its contention that
a valid purchase agreement
between the applicant and the first
respondent was concluded, namely:
[3.1] Letter
dated 16 October 2023, with specific reference to paragraph 3
thereof, wherein the first respondent, through
his attorney, declined
the applicant’s initial offer of R10 000.00 for the liquor
license and tendered a counter-offer
of R30 000.00 for the
purchase of the liquor license.
[3.2] Letter
dated 17 October 2023, with specific reference to the potion under
the heading “
AD PARAGRAPH 3
” wherein the
applicant’s attorney, on behalf of the applicant, accepted the
first respondent’s offer of R30 000.00.
However, when the
offer was accepted, a request was made on behalf of the applicant
that the purchase price of R30 000.00
be kept in the trust
account of the first respondent’s attorney until such time the
first respondent “has signed all
the necessary documents and
transfer of ownership has been effected to” the applicant.
[4]
I do not intend to deal in detail with the history
preceding the alleged purchase agreement. However,
for purpose of the
relief sought by the applicant, I deem it important to highlight that
the counter-offer by the first respondent
on 16 October 2023 has its
roots in settlement negotiations between the applicant and the first
respondent since August 2023 regarding
a
void
agreement of sale of various immovable properties sold to the first
respondent by the applicant in August 2015. It is not in dispute
that
the said agreement of sale was contrary to the provisions of the
Alienation of Land Act.
[1]
[5]
The liquor license is registered on
Erf 2[...], being one of the immovable properties sold to
the first
respondent in August 2015. The counter-offer by the first respondent
referred to
supra
was the result of an offer of R10 000.00
by the applicant on 27 September 2023 to purchase the liquor license
from the first
respondent. The offer of R10 000.00 was in
response by the applicant to a rhetorical question posed on behalf of
the first
respondent in letter dated 22 September 2023, namely, “what
is to happen with the liquor license” when the first respondent
vacates the Erf 2[...].
[6]
Relying on the letters dated 16 and 17
October 2023 referred to
supra
, it is the applicant’s
case that a valid written sale agreement was concluded with the
“express, implied in alternative
tacit terms” that (a)
the purchase price of R30 000.00 will be paid immediately to the
first respondent’s attorney’s
trust account; (b) the
first respondent must deliver the liquor license and sign such
documents to effect transfer of the liquor
license from the first
respondent to the applicant; and (c) the applicant will pay the legal
costs to effect transfer of the liquor
license in the name of the
applicant.
[7]
On 18 October 2023, the first respondent
responded to the applicant’s letter dated 17 October
2023 as
follows:
“
We have conveyed
your client’s offer to purchase the liquor license to our
client, however our client has decided to not proceed
with the sale
of the liquor license as he would rather retain the liquor license
and transfer same to a new premises to enable
him to continue with
his business.”
[8]
This response by the first respondent
resulted in various correspondence being exchanged between the
attorneys of the applicant and the first respondent. I will deal with
the relevant correspondence
infra
. The applicant is of the
view that a valid agreement of sale was concluded on 17 October 2023
between the applicant and the first
respondent, and the first
respondent is bound to the agreement. According to the applicant, the
letter dated 18 October 2023 referred
to
supra
amounts to a
repudiation by the first respondent of the agreement of sale.
[9]
Over and above the two letters exchanged between the attorneys
of the applicant and the respondent
on 16, 17 and 18 October 2023
referred to
supra
, the applicant relies on a letter on behalf
of the first respondent dated 19 October 2023 wherein the first
respondent, according
to the applicant, asked for the applicant’s
clemency to resile from the contract. The applicant relies
specifically on the
preamble paragraphs of the said letter preceding
numbered paragraph 1. The following extract of the said letter needs
mentioning:
“…
from the
outset, we wish to request that your client take into consideration
that
the sale of the liquor license will take away the livelihood
and any possible income from our client and his family
.
Our client did consider
selling the license, but was subsequently able to secure a new
premises for his business,
which is the only option our client now
has to put food on the table for his family, after your client has
insisted on him vacating
the current premises
.
It is therefore
requested
that your client take some compassion in our client’s
predicament
and that he
refrains from eliminating any and all
means which our client has to sustain any form of income
.”
(emphasis added)
[10]
According to the applicant, the above extracts
clearly shows that the first respondent had a change of mind
after
the counter-offer was accepted by the applicant, and the intention of
the letter dated 19 October 2023 was an attempt by
the first
respondent to raise a dispute of fact after receipt of the letter on
behalf of applicant, dated 18 October 2023, in reply
to the first
respondent’s rejection letter referred to
supra
.
[11]
During argument, Mr Grewar, on behalf of the applicant repeated the
applicant’s case referred to
supra
, and submitted
specifically that:
[11.1] The
counter-offer made by the respondent in letter dated 16 October 2023
was accepted unconditionally by the applicant
in letter dated 17
October 2023. Consequently a written offer and acceptance were made
between the applicant and the first respondent,
and as a result
thereof, a legal binding contract came into existence.
[11.2] The first
respondent fabricated a factual dispute, and reliance is placed on
the pre-amble paragraphs of the first
respondent’s letter dated
19 October 2023 referred to
supra
.
Mr Grewar also referred to the second last paragraph of the said
letter
[2]
as an indication of
the first respondent’s alleged change of mind and attempt to
create a factual dispute. Mr Grewar, when
referring to the extracts
of letter 19 October 2023 referred to
supra
,
submitted that the said paragraphs “reeks” of the first
respondent’s acknowledgement that there was an agreement
between the applicant and the first respondent.
[11.3] The
applicant did not make a counter-offer in his letter dated 17 October
2023, but merely “requested”
the first respondent to pay
the purchase price into the trust account of the first respondent’s
attorney pending the transfer
of the liquor license into the name of
the applicant. Mr Grewar submitted that this “request”
could have been rejected
or accepted by the applicant, but it had no
effect on the applicant’s acceptance of the counter-offer made
by the first respondent
in letter dated 16 October 2023.
[12]
In opposition of the relief sought by the applicant, the first
respondent relies on the following grounds:
[12.1] The relief
which the applicant moves for is not capable of being granted in
motion proceedings and stands to be dismissed
because a material
bona
fide
factual dispute exists between the applicant and the first
respondent, which the applicant was aware of and foresaw prior to
lodging
this application.
[12.2] It is denied
that an agreement was concluded between the applicant and the first
respondent, and consequently is the
applicant not entitled to the
relief sought in the application.
[13]
In support of the first respondent’s above opposition,
the first respondent relies on the following:
[13.1] The counter
proposal of 16 October 2023 was unconditional in respect of payment
of the purchase price and did not record
that the purchase price
would only be payable to the first respondent in the event the first
respondent complied with alternate
payment terms which the applicant
could unilaterally impose on the first respondent.
[13.2] The
applicant was not prepared to accept the unconditional terms which
the first respondent had proposed. However on
17 October 2023, the
applicant confirmed the purchase price of R30 000.00 for the
liquor license, but subject thereto that
the purchase price be kept
in trust by the first respondent’s attorney and it would only
be payable to the first respondent
once the first respondent have
signed all the necessary documents and transfer of ownership has been
effected to the applicant.
[13.3] The decision
by the first respondent not to accept the applicant’s
counter-offer, as contained in the letter
dated 17 October 2023, was
the result of the first respondent’s mindfulness of the fact
that the transfer of the liquor license
must be approved by the
second respondent and that such process could take months to
complete. Furthermore, the transfer of the
liquor license could even
be denied by the second respondent. The first respondent was not
prepared to wait for payment for an
extended period of time and ran
the risk of the sale not transpiring due to the second respondent’s
refusal to approve the
transfer. This decision resulted in the
rejection letter dated 18 October 2023 on behalf of the first
respondent referred to
supra
.
[13.4] In response
to the applicant’s threats in letter dated 18 October 2023,
namely, to proceed with an “appropriate
application”
should the first respondent fail or refuse to deliver the liquor
license, the first respondent in letter dated
19 October 2023
foreshadowed a factual dispute and warned the applicant that
application proceedings were not appropriate.
[13.5] The first
respondent in letter 19 October 2023
supra
not only denies
that consensus was reached on the payment terms, but furthermore held
that the payment terms countered on behalf
of the applicant in letter
dated 17 October 2023 is a conditional term of the “supposed
sale agreement” and forms “part
and parcel of the
essentialia of such an attend agreement”, and the first
respondent did not agree to such a term.
[13.6] Another
aspect on which the applicant and the first respondent did not have
consensus on was whether the applicant
would accept liability for the
transfer of the costs occasioned by the transfer of the liquor
license, should the sale proceed.
In letter 19 October 2023
supra
,
it was specifically held on behalf of the first respondent that the
applicant’s attorney stated to the attorney of the first
respondent that instructions regarding payment of the costs of the
transfer of the liquor license will have to be obtained from
the
applicant. It is however denied by the applicant in a follow up
letter dated 19 October 2023 that the applicant’s attorney
indicated that he first had to obtain instructions from the applicant
about payment of the transfer costs of the liquor license.
[14]
According to Mr van der Merwe, on behalf of
the first respondent, the first respondent’s opposition
is
based on two grounds, namely:
[14.1] A material
and
bona fide
factual dispute exists between the applicant and
the first respondent, which the applicant was aware of and foresaw
prior to the
bringing of the application, and for this reason alone,
the application should be dismissed with costs.
[14.2] No agreement
was concluded between the applicant and the first respondent.
[15]
In dealing with the second ground, it was submitted on behalf
of the first respondent, with reference to
various case law, that:
[15.1] For a
contract to have come into existence pursuant to an offer, such offer
must have been accepted clearly and unambiguously.
[15.2] The offer
should correspond with the terms set out in the in the offer for the
acceptance of an offer to be effective
and to lead to the conclusion
of a contract.
[15.3] Anything
more or less than an unqualified acceptance of the entire offer
amounts to a counter-offer and constitutes
a rejection of the
original offer.
[15.4] With
reference to
Command
Protection Services (Gauteng) (Pty) Ltd t/a Maxi Security v South
African Post Office
[3]
(“Command Protection”) Mr van der Merwe submitted that
the conditional acceptance of an offer amounts to a rejection
of the
offer and not the conclusion of a contract, but rather a
counter-offer.
[15.5] Mr van der
Merwe also referred me to the matter of
Rockbreaker
and Parts (Pty) Ltd v Rolag Property Trading (Pty) Ltd
[4]
(“Rockbreaker”) where the Supreme Court of Appeal held
that if a manuscript insertion embodied a material alteration
to the
contractual terms and thus constituted a counter-offer that was never
accepted in writing, then the contract would be unenforceable.
Mr van
der Merwe further submitted that the applicant sought to alter the
material terms of the first respondent’s counter-offer
by
adding conditions that the purchase price was to be kept in trust and
only paid to the first respondent if the first respondent
has signed
all required transfer documents and when the transfer of the liquor
license eventuates. This condition added by the
applicant aims to
protect the applicant from loss in the event that the transfer of the
liquor license did not materialise.
[16]
Mr Grewar submitted during argument that the case
law and relevant
dictum
referred to
supra
are
distinguishable from the facts of the present application. However,
no clear submissions have been made indicating how the
facts of this
application are distinguishable from the said case law. I am in
agreement with the principles referred to in the
Command
Protection
and
Rockbreaker
– matters, and
consequently find the principles set out therein to be equally
applicable to the facts of this application.
[17]
In motion proceedings, the affidavits take the
place not only of the pleadings in an action, but also of
the
essential evidence which would be led at a trial.
[5]
[18]
In determining the application and the evidence
presented in the affidavits, a final order will only be
granted on
notice of motion if the facts, as stated by a respondent, together
with the facts alleged by an applicant, that are
admitted by the
respondent, justify such order.
[6]
[19]
As a general rule, decisions of fact cannot properly be founded on a
consideration of probabilities, unless
the court is satisfied that
there is no real genuine dispute on the facts in question, or that
one party’s allegations are
so far-fetched or so clearly
untenable or so palpably implausible as to warrant their rejection
merely on the papers, or that
viva
voce
evidence would not disturb the balance of probabilities appearing
from the affidavits.
[7]
Mr van
der Merwe referred me to
Fakie
NO v CCII Systems (Pty) Ltd
[8]
in support of his submission that the following dictum stands to be
applied in this instance where the first respondent version
is
supported by
aliunde
evidence:
“
[56]
Practice in
this regard has become considerably more robust, and rightly so. If
it were otherwise, most of the busy motion courts
in the country
might cease functioning.
But
the limits remain, and however robust a court may be inclined to be,
a respondent's version can be rejected in motion proceedings
only if
it is 'fictitious' or so far-fetched and clearly untenable that
it can confidently be said, on the papers alone, that
it is
demonstrably and clearly unworthy of credence
.”
(emphasis added)
[20]
The first respondent denies that a valid agreement came into
existence on 17 October 2023 when his unconditional
counter-offer of
R30 000.00 for the liquor license was accepted by the applicant.
The basis for this denial, according to
the first respondent, is the
conditional acceptance by the applicant of the first respondent’s
counter-offer, namely for
the purchase price to be held in the trust
account of first respondent’s attorney pending the transfer of
the liquor license
to the applicant. This conditional acceptance by
the applicant, according to the first respondent, amounts to a
rejection of the
first respondent’s counter-offer and not a
conclusion of a contract, but rather a counter-offer made by the
applicant.
[9]
[21]
The first respondent’s version is supported by the evidence
presented in both the founding affidavit
and opposing affidavit, and
in applying the well-known and established
Plascon-Evans
rule
referred to
supra
, I cannot find the first respondent’s
version referred to
supra
to be fictitious or so far-fetched
and clearly untenable to be rejected on the papers alone. With
reference to letter dated 19
October 2023
supra
, nothing
suggests in the preamble thereof that the first respondent
acknowledged the existence of a valid agreement. The said portions
referred to by the applicant should not be read and interpreted in
isolation, but it should be read and interpreted in context
and
against what is contained in the letter as a whole. It is evident
from the said letter, when considered and interpreted holistically,
that the first respondent not only disputed the validity of the
alleged agreement of sale, but also denied that the parties have
reached consensus on the material terms of the alleged agreement.
[22]
The first respondent as early as 19 October 2023 forewarned the
applicant in writing about the factual dispute
insofar as to the
conclusion of a valid agreement between the applicant and the first
respondent, but regardless of this, the applicant
persisted to move
this application.
[23]
I cannot find on a consideration of probabilities, based on the first
respondent’s denial, whether
a valid agreement between the
applicant and the first respondent was concluded. In determining the
application and the evidence
presented in the affidavits, a
foreseeable real and genuine dispute of facts exists, and, for this
reason alone, the application
should be dismissed. I am furthermore
of the view that
viva voce
evidence would not disturb the
balance of probabilities appearing from the affidavits before me.
[24]
Accordingly I make the following order:
The application is
dismissed with costs.
JJ
BUYS, AJ
On
behalf of the Applicant:
Adv.
D.M. Grewar
HJ
Booysen Attorneys In
Bloemfontein
On
behalf of the First Respondent:
Adv.
R. van der Merwe
McIntyre
van der Post Law Firm
Bloemfontein
[1]
Act
68 of 1981.
[2]
“
We
hope that your client will consider departing from his intent of
legal action. If anything,
for
the sake of the reasons submitted in the first few paragraphs of
this letter…”.
[3]
2013
(2) SA 133 (SCA).
[4]
2010
(2) SA 400
(SCA) at page 404F-H.
[5]
Hart
v Pinetown Drive-Inn Cinema (Pty) Ltd
1972 (1) SA 464
(D) at 469C-E and
National
Credit
Regulator
v Lewis Stores (Pty) Ltd
2020 (2) SA
390
(SCA) at par 20.
[6]
Stellenbosch
Farmers’ Winery Ltd v Stellenbosch Winery (Pty) Ltd
1957 (4) SA 234
(C) at 235 and
Plascon
Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd
[1984] ZASCA 51
;
1984 (3) SA 623
(A) at 634H-I.
[7]
Cape
Town City v South Africa National Roads Agency Ltd
2015 (6) SA 535
(WCC) at 608F-I;
Administrator,
Transvaal v Theletsane
[1990] ZASCA 156
;
1991
(2) SA 192
(A) at 197A-B;
Plascon
Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd
supra
at
634H-635C;
Room
Hire Co (Pty) Ltd v Jeppe Street Mansions (Pty) Ltd
1949 (3) SA 1155
(T) at 1162 and
National
Director of Public Prosecutions v Zuma
[2009] ZASCA 1
;
2009 (2) SA 277
(SCA) at 290F.
[8]
[2006] ZASCA 52
;
2006
(4) SA 326
(SCA) at para
[56]
.
[9]
See
Command
Protection Services (Gauteng) (Pty) Ltd t/a Maxi Security v South
African Post
Office
supra and Rockbreaker and Parts (Pty) Ltd v Rolag Property Trading
(Pty) Ltd supra.