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2023
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[2023] ZAFSHC 65
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Klopper N.O and Others v Marais and Another (4786/2019) [2023] ZAFSHC 65 (6 March 2023)
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Case
no: 4786/2019
Reportable:
YES /
NO
Circulate
to Judges: YES /
NO
Circulate
to Magistrates: YES /
NO
Circulate
to Regional Magistrates: YES /
NO
In
the matter between:
WOUTER
KLOPPER
N.O
1
st
Plaintiff
DANIEL
FRANSCOIS PRINSLOO
N.O
2
nd
Plaintiff
ANDRIE
WIESNER HECTER
N.O
3
rd
Plaintiff
and
ZELNA
MARAIS
1
st
Defendant
PETRUS
JACOBUS
DELPORT
2
nd
Defendant
CORUM:
M E MAHLANGU, AJ
DATE
OF HEARING: 15
FEBRUARY 2023
DATE
OF DELIVERY OF JUDGEMENT:
6 MARCH 2023
JUDGEMNET
BY: M E MAHLANGU, AJ
JUDGEMENT
INTRODUCTION
[1]
The plaintiffs, the trustees of the G & M Trust with registration
number IT2149/01
(
Trust
), instituted an action against the
defendants, claiming rectification of an undertaking and damages
pursuant to the first defendant’s
breach of contract. The claim
against the second defendant is premised on the written undertaking
provided by the second defendant
to comply with all the obligations
of the first defendant in the event of her default.
BACKGROUND
FACTS
[2]
On 4 March 2016, the plaintiffs and the first defendant concluded an
agreement for
the sale of the immovable property (“the first
agreement”) situated at Portion 1 of erf 131 Wesselbron,
Bloemfontein
(“the property”). On 12 June 2018, the
second defendant took an undertaking that he would take over the
obligations
of the first defendant relating to the first agreement.
The first defendant failed to comply with the first agreement as a
result
thereof, the plaintiffs cancelled the first agreement on 17
October 2018.
[3]
On 3 November 2018, the plaintiffs and the first defendant entered
into a second Deed
of Sale agreement (the second agreement).
Paragraph 4.2 of the second agreement provided that:
“
4.2
Koopprys
Die koopprys van die
EIENDOM is die bedrag van R750 000-00 (SEWE HONDRED EN VYFTIG
DUISEND RAND
)”
[4]
Pursuant to the second agreement, the second defendant concluded an
undertaking in
which he undertook to comply with the first
defendant’s obligations. The first defendant failed to comply
with the second
agreement and the second defendant failed to comply
with the undertaking he took. The undertaking took by the second
defendant
provides that:
“
onderneem
hierme om enige en alle verpligtinge van ZELNA MARAIS
identiteitnommer …….., voortspruitende uit die
Koopkontrak
tussen die gemelde ZELNA MARAIS (as kopper) en die
trusees vir die ty den wyl van die G en M Trust ……..
”
[5]
Paragraph 10-13 of the plaintiffs particulars of claim provides that:
10
In
terms of clause 4.2 of the Second Agreement the First Defendant was
obliged to pay a deposit of R25 000 on 31
st
October
2018 and a further deposit of R255 000 on 9 November 2018. The
First Defendant however failed to make any payment
to the Plaintiffs.
11
In
terms of the provisions of clause 9 of the Second Agreement, the
Plaintiffs, represented by Honey Attorneys, gave written notice
by
electronic transmission the First Defendant on 19 November 2018 in
terms of which payment of the amount of R250 000 was
claimed
within 7 days as provided for in clause 9 of the Second Agreement. A
copy of the said notice is annexed hereto marked Annexure
“C”.
12
The
First Defendant failed and or neglected to pay the said amount of
R250 000 or any portion thereof to the Plaintiffs as
a
consequence of which the Plaintiffs, represented by Honey Attorneys
gave written notice by electronic transmission on 12 December
2018 of
cancellation of the Second Agreement. A copy of the said notice is
annexed hereto marked Annexure “D”
13
As a result of the
First Defendant’s breach of contract of both the First and the
Second Agreements the Plaintiffs have suffered
damages which damages
the plaintiffs are entitled to claim from the first Defendant in
terms of the provisions of clause 23.1.3.2
of the First Agreement and
clause 9.2 of the Second Agreement and from and the Second Defendant
by virtue of his undertakings,
Annexure “A1” and Annexure
“B1”.”
[6]
The defendants pleaded the following in response to the plaintiffs
claim:
“
AD PARAGRAPH
10:
9.1
It is denied that
clause 4.2
obliged the Defendants to pay a deposit and further deposit.
Clause
4.2
of
Annexure
B
to Plaintiffs’ particulars of
claim stipulates that the purchase price of
R750
000,00
.
9.2
Clauses 4.2.1 to 4.2.3
stipulates when certain deposits are
due and the amounts thereof as follows: a deposit of
R 40 000
already received,
R25 000,00
due on
31 October 2018
and a further deposit of
R25 000,00
due on
9 November
2018.
9.3
It is further specially denied that Defendants failed to make any
payments to Plaintiffs.
9.3.1
Due to financial constraints suffered by Defendants, plaintiffs
agreed and accept
alternative down payments of the deposit amounts
and further waived the time periods as agreed in the second
agreement.
9.3.2
It is further specifically pleaded that
clause 4.3
stipulates
that no occupation rental will be due and payable unless the deposits
cannot be paid as agreed in
4.2.1 to 4.2.3
in which event
monthly occupation rent is due and payable at
R5 00,00
per
month. This amount being duly paid and accepted by the Plaintiffs.
9.3.3
Plaintiffs further accepted payment of the amounts tendered by
Defendants during
September 2018
to
November 2018
as
settlement of the deposit amounts.
9.3.4
It was also further agreed that all payments made in respect of the
first agreement
would be utilized as part of the outstanding balance
of purchase.
10.
AD PARAGRAPH 11:
It is admitted that
Honey Attorneys claimed an amount of
R250 000
from the defendants on
19
November 2018
,
however it is denied
that Defendants are indebted to Plaintiffs in that amount or at all.
11.
AD PARAGRAPH 12
11.1 Defendants
specifically denies any indebtedness to Plaintiff and consequently
admits that Defendants failed and or neglected
to pay any amount as
incorrectly claimed or demanded by Plaintiffs.
11.2 defendants
admit receipt of the letter of cancellation dated
12 December 2018
however deny Plaintiffs entitlement to cancel the agreement.”
[7]
The following exhibits were admitted by the Court at the start of the
trial:
8.1 Exhibit A:
First agreement concluded on 4 March 2016;
8.2 Exhibit B:
Second contract concluded on 3 November 2016;
8.3 Exhibit C:
Second defendant’s second under taking dated 3 November
2018;
8.4 Exhibit D:
Second defendant’s first undertaking entered into on 12
June
2018.
PLAINTIFFS’
EVIDENCE
[8]
Before I turn to the evidence proffered by the parties, there is an
application by
the plaintiff for the rectification of the
contract attached to the particulars of claim as Annexure “B1”
and admitted
by the court as exhibit B, by the insertion of the
words “…. oor te neem” to be considered and it is
premised
on the grounds that there was an error between the
parties where the words “oor te neem” were omitted
at
the end of the undertaking after the words “November 2018”.
[9]
In the matter of
Brits v Van Heerden 2001(3) SA 257 (C) at 283
the Court held that:
“
[R]ectification
may be granted where the written memorial of an agreement does
not reflect the true consensus of the parties
.”
[10]
This application is not opposed by the defendants and I am also
satisfied that the plaintiffs
have succeeded in proving on a
balance of preponderances that rectification ought to be
granted.
[11]
Two witnesses testified on behalf of the plaintiffs, Mr Deaon Rossouw
(“Mr
Rossouw
and Mr Pieter Muller (“Mr muller”). Mr Rossouw testified
that, he is a practicing attorney and a director of
Honey Inc.
Bloemfontein. He further testified that, at all material times, he
acted as the Trustee and attorney of G & M Trust
and he oversaw
all the dealings in respect of this matter, which were handled in his
department.
[12]
Mr Rossouw testified that, the first Deed of Sale agreement was
concluded on 4 March 2016 and
the undertaking by the second defendant
was concluded on 12 June 2018. Pursuant to the breach of the first
agreement by the first
defendant, the first agreement was cancelled.
The second Deeds of Sale agreement was concluded on 3 November 2018
together with
its undertaking. The first defendant failed to comply
with the second deeds of sale agreement and was placed
in mora
by the plaintiffs on 19 November 2018. The first defendant failed to
rectify the breach and the second agreement was cancelled
on 12
December 2018. Mr Rossouw denied that there was any oral agreement
that was entered into between the parties. The second
defendant did
not also comply with the second undertaking.
[13]
During the cross examination, Mr Rossouw was referred to the
defendants’ trial bundle which
contained the payments that were
allegedly made by the defendants into the plaintiffs’ Trust
account. Mr Rossouw testified
that the amounts of monies were not
paid directly into the plaintiffs Trust account, but into Mr
Prinsloo’s bank account.
Mr Prinsloo has since passed away.
[14]
During the cross examination, Mr Rossouw further pointed out that,
the plaintiffs are entitled
to retain any payments made in terms of
the second Deed of Sale agreement, as pre-calculated damages, until
such time as damages
have been awarded, at which time it can be
set-off against the actual damages suffered by the plaintiffs. He was
adamant that the
first defendant did not comply with the second
agreement.
[15]
Mr Muller testified as an expert witness and an estate agent at the
time when the property was
sold after the cancellation of the second
Deed of Sale agreement. Mr Muller testified that he personally
visited the property in
December 2018. He evaluated the property in
an amount of R550 000.00 at the time, taking into account the
prevailing market
conditions in the area.
[16]
Mr Muller testified that, eventually obtained an offer to the amount
of R500 000.00 and
he advised Mr Prinsloo to accept it as he had
only one potential buyer of the property. Mr Muller confirmed that,
R500 000
was the reasonable value of the property at the time.
He negotiated R22 500.00, which is a 4% commission of the
purchase price
which was less than the market value and was a
reasonable commission.
[17]
Mr Muller was not cross examined by the defendants. The plaintiffs
closed their case. The defendants
also closed their case without
leading any evidence.
[18]
Counsel advanced oral arguments after the defendants closed their
case.
[19]
Mr Van Rensburg for the plaintiffs argued that, the plaintiffs
suffered damages in the amount
of R250 000.00 being the amount
between the price that they would have obtained had the first
defendant performed in terms
of the second Deed of Sale agreement. He
further argued that the plaintiffs suffered further damages in the
amount of R25 875.00
including VAT in respect of the agent’s
commission which had to be paid.
[20]
Mr Van Rensburg argued that, the documents relied to by the
defendants in their trial bundle
were not proven and therefore the
court should reject them. I am in agreement with Mr Van Rensburg,
during the cross examination
of Mr Rossouw, it was put to him that
the defendants would testify that the payments were made as Mr Muller
could not admit or
deny the payments. The defendants closed their
case without proving the correctness of the payments.
[21]
Ms Ferreira countered on behalf of the defendants that, the
plaintiffs’ damages could have
been calculated from the time
when the performance was due. The defendants argued that the
performance was due on 31 October 2018.
It was further submitted
that, Mr Muller failed to give evidence based on the value of the
property as at October 2018. Ms Ferreira
submitted that, the
plaintiffs’ failed to discharge their onus relating to the
R250 000 claim. Mr Van Rensburg argued
that, Mr Muller testified
that he evaluated the property and he accepted the good offer at the
time.
[22]
Ms Ferreira argued on behalf of the defendants
that, there was no basis laid by the plaintiffs to use the
estate
agent in selling of the property. She further argued that the estate
agent commission is a consequential damage which can
only be paid if
they result from a particular contract. The onus is on the plaintiffs
to prove special circumstances that made
them to appoint the estate
agent. Mr Van Rensburg argued that, the defendants failed to sell the
property, for the plaintiffs to
sell it, they had to elect the estate
agent to assist them with the sale. He further submitted that, the
defendants confuse consequential
damages and the position which the
aggrieved party in the contractual agreement should be reinstated on
failure by the defendant
to comply with the contract.
DISCUSSION
[23]
In the matter of
Victoria Falls and Transvaal Co Ltd v
Consolidated Langlaagte Mines Ltd 1915 AD (Victoria case)
at
paragraph 22, the court authoritatively stated the mitigating rule is
a rule where a breach of contract has occurred. The innocent
party
cannot merely sit back and allow their losses to accumulate; the
party must take reasonable positive steps to prevent the
occurrence
or accumulation of losses. The rule does not require the innocent
party to do anything more than a reasonable person
could do under the
same circumstances. Reasonable expenses incurred in carrying out the
mitigation steps may be claimed as additional
damage suffered. The
onus of proving what steps could reasonably have been taken, or that
the expenses incurred were unreasonable,
rests on the party in
breach.
[24]
Both parties referred to the different case law that I took into
consideration. The defendants
closed their case, the allegations made
in respect of the payments made to the plaintiffs were not proved.
The defendant could
not also prove the documents relied upon during
the cross examination
[25]
According to the second Deed of Sale agreement, the agreement between
the parties was that, the
purchase price of the property is R750
00.00. The first defendant failed to comply with the obligations of
the second Deed of Sale
agreement, the agreement was cancelled. The
second defendant did not also comply with the second undertaking he
took. The plaintiffs
through the assistance of Mr Muller, sold the
property for R500 000.00 which was less than the agreed amount.
Mr Muller testified
that, the R500 000.00 offer he accepted, was
a reasonable offer at the time.
[26]
The plaintiffs conceded during their arguments that, the defendants
made a payment of R40 000.00
as a deposit to the property. I am
of a view that R40 000.00 should be set-off from the amount
claimed by the plaintiffs.
I am of a view further that the plaintiffs
are entitled to the agents commission. The plaintiffs incurred costs
of the agent who
assisted them to find a buyer of the property. The
failure to sell the property by the defendants, led to the plaintiffs
to incur
the estate agent’s costs.
CONCLUSION
[27]
The defendants did not rebut the plaintiffs evidence and prove to the
court that the damages
claimed by the plaintiffs were unreasonable.
The plaintiffs have therefore suffered damages in the amount of
R250 000.00 being
the difference between the price that they
would have obtained had the first defendant performed its obligations
in terms of the
second deeds of sale agreement. The plaintiffs could
not have been liable for agents commission to the amount of
R22 500.00
including VAT, had the first defendant performed his
obligations in terms of the second Deed of Sale agreement.
[28]
I am therefore of a view that the plaintiffs proved their claim
against the first defendant in
the amount of R235 875.00. I am
further of a view that the second defendant is liable for the payment
of the R235 875.00
in terms of the second undertaking for the
first defendant’s failure to comply with the second Deed of
Sale agreement. I
am of a view that the second defendant failed to
fulfil his undertaking concluded on 3 November 2018 in which he
undertook to take
all the first defendant’s obligation of the
second agreement. The second defendant should therefore be liable for
the damages
suffered by the plaintiffs.
COSTS
[29]
In terms of clause 10 of the second Deed of Sale agreements, a party
that fails to fulfil the
obligations contained in the second deeds of
sale agreement is obliged to pay all costs incurred by the innocent
party including
attorney and client scale costs. I do not see any
reason of deviating from the parties agreement. I am therefore of a
view that,
the second defendant is liable to the plaintiffs costs of
this application on an attorney and client scale.
ORDER
[30]
Consequently the following order is made:
1.
That the rectification of Annexure “B1” by inserting the
words “
oor te neem
” at the end of the undertaking
after the words “
November 2018
” is granted.
2.
That the plaintiffs’ claim is granted;
3.
That the second defendant is ordered to pay the plaintiffs an amount
of R235 875.00
4.
That the second defendant is ordered to pay the plaintiffs’
costs on an attorney and
client scale.
MAHLANGU
AJ
REPRESENTATIVES
On
behalf of plaintiffs:
Adv FG Janse Van Rensburg
c/o Willers Attorneys
117
Klaradyn Avenue
Pellissier
Bloemfontein
Tel:
087 153 0010
Email:
pieter@williersattorneys.co.za
On
behalf of the defendants:
Adv J Ferreira
Noordmans Attorneys
4
Seventh Street
Arboretum
Bloemfontein
9301
Tel:
051 011 9122
Email:
anton@noordmans.co.za