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[2011] ZASCA 125
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Atkin v Botes (566/10) [2011] ZASCA 125; 2011 (6) SA 231 (SCA) (9 September 2011)
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THE SUPREME COURT OF
APPEAL OF SOUTH AFRICA
JUDGMENT
Case No: 69/11
In
the matter between:
WILLEM JACOBUS MINNIE
RADEMEYER
…..........................................
Appellant
v
DANIËL
ROUX VILJOEN
…..........................................................
First
Respondent
SWANEPOEL
& PARTNERS AUCTIONEERS
…...................
Second
Respondent
Neutral citation:
Rademeyer v Viljoen
(69/11)
[2011] ZASCA 189
(3 November
2011).
Coram:
Brand,
Van Heerden, Malan, Majiedt JJA et Plasket AJA
Heard:
3
November 2011
Delivered: 3 November
2011
______________________________________________________________
ORDER
______________________________________________________________
On appeal from:
North Gauteng High Court, Pretoria.
(Pretorius J sitting as
court of first instance):
The appeal is dismissed
with costs including the costs of both respondents.
______________________________________________________________
JUDGMENT
BRAND JA
(
VAN
HEERDEN, MALAN, MAJIEDT JJA ET PLASKET AJA
concurring):
[1] This appeal is
against a judgment of Pretorius J in the North Gauteng High Court. It
raises no questions of law. It turns on
the application of
well-established principles of law to the facts which are not
particularly complicated. The matter comes before
us with the leave
of the court a quo who gave no reasons whatsoever as to why she
considered that the appeal should lie to this
court. In the
circumstances we can only repeat what, to the readers of our judgment
in the law reports, must by now have become
a rather tiring refrain.
So for example it was said by Marais JA in
Shoprite Checkers (Pty)
Ltd v Bumpers Schwarmas CC
2003 (5) SA 354
(SCA) para 23:
‘
Whatever
a party or the parties may prefer, it remains the duty of the trial
Judge to consider what Court is the more appropriate
in the
circumstances of the case. The issue was purely one of fact; no
controversial legal principle was involved; and the sums
of money
involved are by today’s standards not so great as to justify
the decision. The inappropriate granting of leave to
appeal to this
Court increases the litigants’ costs and results in cases
involving greater difficulty and which are truly
deserving of the
attention of this Court having to compete for a place on the Court’s
roll with a case which is not.’
(See also eg
MTN
Service Provider (Pty) Ltd v Afro Call (Pty) Ltd
2007 (6) SA 620
(SCA) para 24.)
[2] Though we do not
agree with the court a quo’s exposition of legal principles in
all respects nor with every one of her
factual findings, we believe
that her ultimate conclusion cannot be faulted. That is why the
appeal should, in our view, be dismissed
with costs. In the
circumstances I propose to state our reasons as succinctly as
possible. In broad outline the background facts
are these. On 29
January 2000 the appellant, Mr Willem Rademeyer, who was at the time
a 65 year old farmer in the Mpumalanga province,
was the successful
bidder at an auction. The auctioneer was the first respondent, Mr
Daniël Viljoen, who acted as representative
of the second
respondent, Swanepoel and Partners Auctioneers (the auctioneers).
[3] The property put up
for sale at the auction was the farming business of the A J Kruger
family trust (the trust) as a going concern.
It consisted of three
farms, all movables used in the farming activities and the existing
crops on the farm. Rademeyer’s
bid of R4,5 million was the
highest and thus constituted the selling price of the property.
Pursuant to clause 6 to the conditions
of sale, which applied at the
auction, Rademeyer paid a deposit of 20 per cent of the purchase
price, ie R900 000. In terms
of clause 17 of these same
conditions, the highest bid at the auction was subject to
confirmation by the trust within a period
of 14 days. On 10 February
2000 Viljoen, who was also a trustee of the trust, accepted the offer
on its behalf and the sale thus
became binding.
[4] Shortly after
confirmation of the sale, Viljoen paid out the amount of R900 000
to creditors of the trust, including the
auctioneer’s
commission of about R205 000 and the balance to the trust’s
banker, Absa, where it had an overdraft
account. On 8 March 2000
Rademeyer cancelled the sale in terms of clause 16 of the conditions
of sale to which I shall soon return.
Important for present purposes,
however, is that Rademeyer reclaimed payment of the deposit of
R900 000 from the trust. When
the trust refused to comply with
his demand, Rademeyer instituted proceedings for payment in the court
a quo. Despite opposition
by the trust, his claim ultimately proved
to be successful and judgement was given in his favour on 27
September 2000. On the same
day, however, an application was brought
for the sequestration of the trust’s estate which was
eventually granted. Rademeyer
filed a claim in the insolvent estate.
As a concurrent creditor he recovered a dividend of less than
R200 000. He thereupon
issued summons for the balance of the
deposit in the court a quo against the auctioneers.
[5] In due course he also
instituted a separate action in the court a quo against Viljoen in
his personal capacity. By agreement
between the parties the two
actions were heard as one before Pretorius J. At the end of the
proceedings before her, she dismissed
the claims in both actions with
costs. The appeal against that judgment is, as I have said, with the
leave of the court a quo.
[6] As also appears from
what I have said, the two clauses in the conditions of sale that
proved to be pertinent were clause 6 and
16. They provided in
relevant part:
‘
6.
The purchaser shall pay a deposit of 20% (twenty per cent) of the
purchase price in cash on the day of the sale, the balance
against
transfer, however, to be secured by an acceptable bank guarantee to
be approved by the seller’s attorney and to be
furnished to the
said attorney within 30 days from date of confirmation.
.
. .
The
seller warrants the following:
That
he has no knowledge of any claims or indication of any claims made
by any third party in respect of the whole or any portion
of the
property in terms of the provisions of the
Restitution of Land
Rights Act 22 of 1994
and do hereby authorise the purchaser to make
any enquiries in this regard to the relevant authorities as to
ensure that no
such claims do exist.
16.2
Should it transpire that any claims have indeed been made by any
third party in respect of the property in terms of the provisions
of
the said Act, then the purchaser shall at his election be entitled,
but not obliged, to withdraw from this agreement in which
event all
amounts as paid by the purchaser shall be repaid to him by the seller
– subject however thereto that the purchaser
shall not be
entitled to rely on this clause for repayment once transfer has been
effected and the balance purchase price has been
paid.’
[7] The basis upon which
Rademeyer cancelled the sale in terms of clause 16 on 8 March 2000
was that a land claim was indeed filed
against the property, in terms
of the
Restitution of Land Rights Act 22 of 1994
in December 1998.
From evidence led on behalf of Rademeyer himself, it turned out that
he already heard about this claim on 4 February
2000 at a time when
his cheque for R900 000 had not yet been drawn upon. It is
common cause, however, that he only confronted
Viljoen with the
allegation of such a claim, through his attorney, in March 2000.
Viljoen’s evidence was that this was the
first time he became
aware of these allegations which he then established to be true, but
that if it had been brought to his notice
before 10 February 2000, he
would not have deposited Rademeyer’s cheque.
[8] The claim against the
auctioneers rested on no less than five alternative grounds while the
claim against Viljoen was based
on three alternatives. In broad
outline they amounted to these:
(a) The main claim, which
was brought against the auctioneers only, departed from the premise
that the contract embodied in the
conditions of sale constituted a
tripartite agreement between the trust, Rademeyer and the
auctioneers. On a proper interpretation
of that agreement, so
Rademeyer’s particulars of claim proceeded, the auctioneers
undertook not to pay the deposit to the
trust pending transfer of the
property, but that they would keep it in their trust account until
the occurrence of that event.
(b) The first alternative
claim, again brought against the auctioneers only, was based on a
tacit agreement between Rademeyer and
the auctioneers. The alleged
terms of the tacit agreement were the same as those relied upon for
the main claim.
(c) The second
alternative, which was pleaded against both auctioneers and Viljoen
relied in both instances on the common law contract
of
depositum
.
According to this claim, as formulated in Rademeyer’s
particulars of claim, the auctioneers and Viljoen undertook to take
the deposit in safekeeping until transfer of the property into his
name in which event it would be paid to the trust but, failing
which,
it would be restored to him.
(d) The third alternative
claim, also brought against both the auctioneers and Viljoen, was
brought in delict. In support of this
claim it was pleaded that
Viljoen, acting in the course and scope of his employment as an
employee of the auctioneers had paid
the deposit to the trust in
breach of a legal duty towards Rademeyer not to do so pending
transfer of the property in his name.
(e) The fourth
alternative, also brought against the auctioneers and Viljoen was
only introduced by way of an amendment to Rademeyer’s
particulars of claim on 7 July 2009. Why I mention this is because it
gave rise to a special plea of prescription against this
claim to
which I shall return. The nub of this claim was that Viljoen (a) was
aware at the time of the auction that there was a
land claim in
respect of the property or at least that there were indications of
such a claim; (b) that in the light of this knowledge
he was under a
legal duty to inform Rademeyer of the possibility of a land claim and
of the precarious state of the trust’s
financial affairs; and
that (c) while acting in the course and scope of his employment as
employee of the auctioneers, Viljoen
had failed to comply with his
duty.
[9] The court a quo held
that Rademeyer’s main claim was not supported by a proper
interpretation of the sale. I agree. Clause
6 refers to two payments:
(a) the deposit and (b) the balance of the purchase price. The
payment in (b) is manifestly to be made
to the seller. Since the
clause draws no distinction between the recipient of (a) and (b),
logic dictates that they were both to
be made to the seller.
[10] In this light the
auctioneers could only accept payment of the deposit as agent for the
seller. No doubt the contract could
have provided that the agent must
keep the deposit in trust, either as agent for the purchaser or as a
stakeholder, pending transfer.
That is illustrated by numerous
reported cases. The point is that the contract made no such
provision. In consequence the prepayment
of the deposit provided for
by the contract had to be made to the seller. If anything, this
interpretation of clause 6 is supported
by clause 16 of the contract
which was the very basis relied upon by Rademeyer for his claim
against the trust. This clause expressly
provides that, in the event
of cancellation by the purchaser, the seller would be the party
obliged to repay, which presupposes
that the seller was the recipient
prior to transfer.
[11] Thus understood, the
auctioneers had no right to retain the deposit. On a proper
interpretation of clause 6 they were obliged
to pay the deposit to
the trust on the date of sale which was the date of confirmation
under clause 17. This is exactly what Viljoen
did. It follows that
the main claim was rightly dismissed by the court a quo.
[12] The further
consequence of these findings is that there was simply no room for
the other contracts relied upon by Rademeyer
in the alternative. Once
it is accepted that in terms of the sale, the auctioneers were
obliged to pay the deposit to the trust
on the date of the sale, any
suggestion that in terms of some other contract they undertook to do
the exact opposite by keeping
the deposit in trust until transfer,
becomes manifestly untenable. As a matter of pure logic the
auctioneers could not be presumed
to have entered into two contracts
which imposed diametrically conflicting obligations upon themselves.
[13] The same goes for
the first claim in delict which relied upon a duty imposed by law on
Viljoen and the auctioneers to keep
the deposit in trust pending
transfer. It is well-established that for policy reasons, the
extension of delictual liability will
be refused if it would
constitute an interference with the defendant’s lawful
obligations (see eg
Fourway Haulage SA (Pty) Ltd v SA National
Roads Agency Ltd
[2008] ZASCA 134
;
2009 (2) SA 150
(SCA) para 26). In the present
context, it must mean that the law will not impose a duty on a
defendant which would compel him
or her to act in conflict with a
contractual obligation. Another policy consideration why this court
had refused in the past to
impose a legal duty on a particular
defendant, was that the plaintiff was in a position to avoid the risk
of the loss claimed by
contractual means (see eg
Trustees, Two
Oceans Trust v Kantey & Templer (Pty) Ltd
2006 (3) SA 138
(SCA) para 20). A corollary of Rademeyer’s unsuccessful
argument that he contractually covered himself against the harm that
materialised, was that he was undoubtedly in a position to do so.
[14] In support of the
alleged existence of the legal duty contended for, much was made of
the allegation that the auctioneers were
estate agents as defined by
the Estate Agency Affairs Act 112 of 1976, that they should thus have
been in possession of a fidelity
fund certificate and maintained a
trust account and were bound by the estate agent’s code of
conduct. The court a quo held
that the auctioneers were not estate
agents as defined by the Act. But I find it unnecessary to decide
this issue. The fact remains
that even if the auctioneers were estate
agents and if they had maintained a trust account they would still be
contractually bound
by the sale to pay the deposit to the seller and
not into their trust account.
[15] The final
alternative claim is essentially based on fraud: that Viljoen had
known about the land claim and of the trust’s
precarious
financial position at the time of the auction and that he had
deliberately refrained from informing Rademeyer about
these facts.
The allegation as to Viljoen’s alleged knowledge of the land
claim was essentially based on the evidence of
Ms Louise Huijink that
she had overheard a discussion between Viljoen and her mother, Mrs
Kruger, who was another trustee of the
trust, prior to the auction in
which reference was made to the land claim. Viljoen’s answer to
this evidence was twofold.
First, that he did not know about the land
claim and second, that the alleged conversation never occurred. The
court a quo preferred
the evidence of Viljoen and rejected the
version of Ms Huijink to the contrary. I find it unnecessary to
restate the court’s
reasons for doing so. Suffice it to say, in
my view, that these reasons cannot be faulted. The further argument
raised by Rademeyer
was that the inherent probability tend to
indicate that Viljoen must have known about the land claim. Again I
find myself in agreement
with the court a quo’s finding that
this is not so and that the inherent probabilities would indeed
support the version of
Viljoen.
[16] As part of this
fourth alternative, Rademeyer also relied on a failure by Viljoen to
inform him and the other potential buyers
at the auction about the
precarious financial position of the trust. In this instance, I have
no doubt that Viljoen was aware that
the trust had financial
difficulties, but I do not believe there was any duty to convey these
facts to the potential purchasers
at the auction. Absent any
knowledge of the land claim, Viljoen’s position was no
different from any other auctioneer and
I can think of no reason why
a duty should be imposed on auctioneers in general to inform those
attending the auction about the
financial difficulties of his or her
principal.
[17] As far as this
fourth alternative is concerned, the respondents filed pleas of
prescription which were dismissed by the court
a quo. I believe,
however, that these prescription pleas should have been upheld. The
pertinent test is succinctly formulated as
follows by Scott JA in
Firstrand Bank Ltd v Nedbank (Swaziland) Ltd
2004 (6) SA 317
(SCA) para 4:
‘
The
sole question in the present appeal is therefore whether the right of
action relied upon in the particulars of claim as amended
is
recognisable as the same or substantially the same as that relied
upon in the particulars of claim in its original form.’
[18] I do not believe
that the amendment passed this test. All the original claims were
essentially based on a duty to keep the
deposit in trust. The
alternative introduced by the amendment, on the other hand, relied on
a duty to disclose. As I see it, the
latter can by no stretch of the
imagination be recognised as substantially the same claim as the
former.
[19] To all these claims
there is in any event a defence which should in my view have
succeeded. In short it can be labelled as
lack of factual causation.
After all is said and done, I believe the ultimate reason for
Rademeyer’s loss was his failure
to inform Viljoen of the land
claim on 4 February 2000, that is, before confirmation of the sale
and before the cheque was deposited
by Viljoen. This conduct was, in
my view, unreasonable. Moreover, I can find no reason to reject
Viljoen’s evidence that
if the existence of a land claim had
been brought to his notice at that stage, the deposit would never
have been paid over to the
trust. But for Rademeyer’s
unreasonable conduct he would therefore have suffered no loss.
[20] The final argument
raised on behalf of Rademeyer on appeal was that he was at least
entitled to the payments made by Viljoen
from the auctioneer’s
bank account after cancellation of the sale on 8 March 2000. I find
no merit in this argument. If Viljoen
was obliged to pay over the
deposit to the trust after confirmation of the sale on 10 February
2000, as I found that he was, cancellation
could only give rise to a
claim for repayment against the trust. Whether after that date the
money was paid over on behalf of the
trust to some other creditor, or
kept in the bank account of the auctioneers or paid into the trust’s
Absa account, can make
no difference in principle. The principle
remains that the money was controlled either by or on behalf of the
trust and could only
be repaid to Rademeyer with its approval.
[21] These, in short,
were our reasons for dismissing the appeal with costs, including the
costs of both respondents.
…………………
..
F D J BRAND
JUDGE OF APPEAL
Counsel for Appellants: P
Delport SC
Instructed
by: S Roux Ing
PRETORIA
Correspondents:
Hugo & Bruwer Ing
BLOEMFONTEIN
Counsel
for First Respondent: B H Swart SC
Instructed
by: Geldenhuys Lessing Malatji
PRETORIA
Correspondents:
Honey & Vennote
BLOEMFONTEIN
Counsel
for Second Respondent: T A L L Potgieter
Instructed
by: Van Zyl Le Roux & Hurter
PRETORIA
Correspondents:
Naudes Prokureurs
BLOEMFONTEIN
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