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2022
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[2022] ZANCHC 11
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Karoo Wild Dienste (Pty) Ltd v Grieqwa-Land West Cooperative Limited and Others (141/2016) [2022] ZANCHC 11 (4 March 2022)
IN
THE HIGH COURT OF SOUTH AFRICA
NORTHERN
CAPE DIVISION, KIMBERLEY
Case
No: 141/2016
Reportable:
YES/NO
Circulate
to Judges: YES/NO
Circulate
to Magistrates: YES/NO
Circulate
to Regional Magistrates: YES/NO
In
the matter between:
KAROO
WILD DIENSTE (PTY) LTD
Applicant/Plaintiff
and
GRIEQWA-LAND
WEST
COOPERATIVE
LIMITED
Defendant/Respondent
DG
ANDRAG
1
st
Third Party
M
LOUW
2
nd
Third Party
Coram:
Lever J
JUDGMENT
– APPLICATION FOR LEAVE TO APPEAL
Lever
J
1.
This is an application for leave to appeal
a judgment I handed down on the 17 September 2021. In the said
judgment, I granted the
defendant absolution from the instance at the
close of the plaintiff’s case. To avoid confusion, the parties
will be referred
to as in the summons and Particulars of Claim. The
background and circumstances that led to the plaintiff’s claim
are set
out in my judgment, the subject of the present application
for leave to appeal. Accordingly, there is no need to restate the
background
to the claim in this judgment.
2.
In a document dated the 19 September 2021,
which does not bear the Registrars date stamp, the plaintiff lodged
its Notice of Application
for Leave to Appeal. In the said notice,
the plaintiff sets out 12 grounds of appeal.
3.
Subsequently, on the 25 October 2021, the
plaintiff filed its Heads of Argument. This is a document of some 12
pages in length and
containing some 61 paragraphs. This document
contains some grounds of appeal that are not strictly contained in
the Notice of Application
for Leave to Appeal. The plaintiff’s
Heads of Argument filed in this application, in sum sought to
convince me that the plaintiff’s
claim was for specific
performance. That in those circumstances, all the plaintiff was
required to do was to (a) allege and prove
the terms of the contract
and (b) compliance with any antecedent or reciprocal obligations or
must tender such compliance. Mr Gagiano,
who appeared for the
plaintiff in this application and the preceding trial, asserted in
his Heads of Argument that the plaintiff
had done this. Accordingly,
he asserted that the plaintiff had reasonable prospects of success on
appeal.
4.
Then on the 5 November 2021, when the
matter was argued, Mr Gagiano took a very different tack. He now
sought to base the plaintiff’s
claim on a cession of
plaintiff’s rights that was contained in the written portion of
the agreement that the defendant pleaded
governed the conduct of the
auction. The defendant was the auctioneer conducting an auction at
the behest of the plaintiff. The
relevant written agreement related
to the contractual relationship that came into being between the
auctioneer and the buyers at
the said auction.
5.
This is very different to the way the
plaintiff had pleaded its case and conducted the trial in this
matter. Mr Gagiano sought to
recharacterise paragraph 7.3 of the
plaintiff’s particulars of claim and submitted that the said
cession would fit in with
the said paragraph 7.3. Save for the
identity of the parties and the issue of jurisdiction I have quoted
the whole of the plaintiff’s
Particulars of Claim at paragraph
6 of my absolution judgment.
6.
What Mr Gagiano loses sight of is that this
new characterisation of plaintiff’s claim is at odds with the
way the plaintiff
conducted its case at the trial, the way that
plaintiff presented its case up to the oral argument for leave to
appeal and the
fact that one would now have to ignore the other
material parts of the particulars of claim to give paragraph 7.3 the
meaning that
the plaintiff now seeks to attribute to such paragraph.
7.
Save to state that the plaintiff was not
abandoning the grounds set out in the Notice of Application for Leave
to Appeal and his
Heads of Argument, Mr Gagiano did not mention or
deal with any of the other grounds for leave to appeal in his oral
argument. Accordingly,
I must deal with all the substantive grounds
raised in oral argument, the Notice of Application for Leave to
Appeal and the Heads
of Argument filed on behalf of the plaintiff. I
shall refer to each ground as raised and then deal with it directly.
The new reliance
on the cession as part of plaintiff’s cause of
action has been partly dealt with already, it is convenient to finish
off
this aspect first before proceeding to the Notice of Application
for Leave to Appeal and then insofar as it is necessary to deal
with
the Heads of Argument filed on behalf of the plaintiff in this
application for leave to appeal.
8.
Concluding the issue raised by the new
reliance on the said cession as part of the plaintiff’s claim,
it is common cause that
in conducting the relevant auction, the
defendant was the plaintiff’s agent. Placing emphasis on the
contention that the
defendant had to collect the purchase price as
pleaded in paragraph 7.3 of the Particulars of Claim and arguing that
the defendant
must make good for a defaulting purchaser, without more
being pleaded, flies in the face of an agreement of agency. This is
particularly
so in an auction. Normally, an auctioneer is not liable
for a defaulting purchaser. An additional term to that effect is
required
to be agreed between the parties. If such an additional term
was reached, it must per force be pleaded. This the plaintiff has not
done.
9.
The evidence of Mr Van der Westhuizen, who
gave evidence for the plaintiff, that he entered into the agreement
on behalf of the
plaintiff, simply cannot sustain this new line of
attack.
10.
In cross-examination Mr Van der Westhuizen
was asked in relation to the conclusion of the agreement that the
defendant would act
as the plaintiff’s agent in conducting the
relevant auction, “What would happen if a person who buys game
at the auction
simply walks away from his obligations?”. Mr Van
der Westhuizen responded that it was not discussed when he, acting
for the
plaintiff and Mr Klopper, acting for the defendant, entered
into the relevant agency agreement for the defendant to conduct the
auction. In these circumstances, I do not believe that the plaintiff
can rely on such cession as part of its cause of action, which
in any
event was not pleaded.
11.
Further, in an auction a cession is usually
contemplated and used to facilitate the role of the auctioneer in
delivering and transferring
ownership of the relevant goods to the
purchaser upon payment of the relevant purchase price. It cannot be
stretched further than
that unless special terms have been agreed and
pleaded. As can be seen from the evidence of Mr Van der Westhuizen,
set out above,
there was no agreement to that effect. Resulting in
the situation where this new cause of action based on the cession
cannot be
sustained.
12.
Turning now to the grounds of appeal set
out in the plaintiff’s Notice of Application for Leave to
Appeal. The first ground
of appeal set out in such document reads as
follows:
“
3.
Having found correctly that the plaintiff’s claim against the
defendant is for specific performance,
the Court erred and/or
misdirected itself:
3.1
By finding that there is an essential averment missing from the
plaintiff’s particulars of claim that would
establish a factual
or legal basis for holding the defendant liable for the
‘obligations
of the respective purchasers’
.”
13.
This finding referred to in the above
ground of appeal is to be found in paragraph 16.7 as read with
paragraph 41 of my judgment
on the issue of absolution.
14.
As can be seen from the prelude to these
grounds of appeal, the one under discussion and the ones to follow
from the Notice of Application
for Leave to Appeal, has until oral
argument for leave to appeal always been that plaintiff’s claim
is for ‘specific
performance’. I confirmed this in
paragraph 8 as read with paragraph 28 of my judgment.
15.
The plaintiff seeks to hold the defendant
liable for the default of the purchasers at the auction concerned.
The goods, being the
game concerned are still in the possession of
the plaintiff and have never left the plaintiff’s possession.
The plaintiff’s
claim as confirmed on multiple occasions up
until oral argument in this application, was for specific
performance. The question
arises, specific performance of whose
obligations? This question cannot be avoided. As pointed out in the
judgment three different
contracts come into existence when an
auction is conducted. Firstly, the agency agreement between the
seller and the auctioneer.
Secondly, the contract between the buyer
and the auctioneer. Thirdly, the contract between the buyer and the
seller.
16.
The obligation to pay or make good the
purchase price is not one of the
naturalia
of a contract of agency. The obligation to pay the purchase price can
only arise in the second and third agreements referred to
above. In
both cases this obligation would fall on the purchaser. It would only
be an obligation on the part of the auctioneer
to make good on the
purchase price if the agency agreement included a term to the effect
that the auctioneer would warrant or guarantee
performance by the
purchaser. As set out above, there was no evidence to support
inclusion of such a clause in the agency agreement
and as can be
seen, it certainly was not pleaded in the particulars of claim.
17.
The second ground of appeal set out in the
said notice reads as follows:
“
3.
Having found correctly that the plaintiff’s claim against the
defendant is for specific performance,
the Court erred and/or
misdirected itself:
3.2
By confusing ‘the obligations of the purchasers’ as
anything other than the defendant’s
obligation to the plaintiff
in terms of the agreement entered into on the 16 May 2015 and
confirmed by the defendant at the auction;”
18.
The plaintiff, in making this
contention loses sight of the fact that in an auction three contracts
inevitably come into existence,
the first being the contract of
agency between the auctioneer and the seller, the second being
between the seller and the purchaser
and the third being between the
auctioneer and the purchaser. The plaintiff also loses sight of the
fact that the
naturalia
of the agency agreement between it and the defendant does not include
a term whereby the defendant would take on the obligations
of the
purchaser. There would have to be an additional term in the agency
agreement to that effect.
19.
As is set out above, plaintiff failed to
plead any such additional term in the agency agreement between it and
the defendant and
the evidence adduced on the part of the plaintiff
in the trial would not sustain the contention that such obligation on
the defendant
to make good the purchase price bid by the respective
buyers existed in the event of a default.
20.
On this ground as well, there is no basis
for me to find that there is a reasonable prospect that another court
would come to a
different conclusion. Accordingly, I cannot find that
on this ground the appeal, if allowed, would have a reasonable
prospect of
success.
21.
The third ground of appeal is set out as
follows in the Notice of Application for Leave to Appeal:
“
3.
Having found correctly that the plaintiff’s claim against the
defendant is for specific performance,
the Court erred and/or
misdirected itself:
3.3
By finding that the plaintiff has not adduced evidence on all aspects
of its claim;”
22.
This ground of appeal has already been
fully dealt with in dealing with the first two grounds of appeal set
out in the Notice of
Application for Leave to Appeal.
23.
Also, on this ground as well, there is no
basis for me to find that there is a reasonable prospect that another
court would come
to a different conclusion. Accordingly, I cannot
find that on this ground the appeal, if allowed, would have a
reasonable prospect
of success.
24.
The fourth ground of appeal set out in the
Notice of Application for Leave to Appeal, reads as follows:
“
3.
Having found correctly that the plaintiff’s claim against the
defendant is for specific performance,
the Court erred and/or
misdirected itself:
3.4
By finding that the evidence of Van der Westhuizen and Van der Berg
pertaining to Klopper’s (defendant’s
authorised
representative) to them on numerous occasions, is not confirmation of
defendant’s liability towards Plaintiff
(as pleaded and
testified to) is untenable for the purpose of an application for the
(sic) absolution from the instance;”
25.
Firstly, if plaintiff intends to allege
herein that plaintiff had pleaded that two or any representatives of
the defendant had confirmed
the defendant’s liability to the
plaintiff, this is not the case. No such contention has been pleaded
by the plaintiff. Van
der Berg and Van der Westhuizen did make this
contention in their evidence.
26.
The evidence of Van der Berg and Van der
Westhuizen on this aspect was challenged in cross-examination.
Accordingly, it cannot be
said that such evidence went unchallenged.
27.
Of more import, at the stage of considering
absolution, is the fact that even if it can be accepted that Klopper
and Bosman made
remarks to the effect that they believed that the
defendant was liable to the plaintiff, the plaintiff still had to
plead the basis
on which the defendant accepted liability of the
obligations of the respective purchasers who reneged on their
respective obligations
to pay the amount bid by them at the auction.
This was not done.
28.
Any confirmation of the defendant’s
liability towards the plaintiff’s witnesses, in the absence of
a special term making
provision for such liability in the agency
agreement, such confirmation would fly in the face of the agency
agreement pleaded by
the plaintiff. Consequently, this contention is
untenable and cannot be sustained on the pleadings and evidence
currently before
the court.
29.
The argument under this ground for leave to
appeal is untenable. There is no basis for me to find that there is a
reasonable prospect
that another court would come to a different
conclusion. Accordingly, I cannot find that on this ground the
appeal, if allowed,
would have a reasonable prospect of success.
30.
The fifth ground of appeal in the said
Notice is set out as follows:
“
3.
Having found correctly that the plaintiff’s claim against the
defendant is for specific performance,
the Court erred and/or
misdirected itself:
3.5
By disregarding what was by the Defendant’s counsel, Klopper
and the other representative Bosman
on behalf of the defendant, and
the first third party would testify to in regard to defendant’s
version of the agreement
entered into between the parties, as
pleaded, and testified to by Van der Westhuizen and Van der Berg;”
31.
What is set out in paragraphs 28 to 31
above is applicable to this contention made by the plaintiff.
32.
On this ground as well, there is no basis
for me to find that there is a reasonable prospect that another court
would come to a
different conclusion. Accordingly, I cannot find that
on this ground the appeal, if allowed, would have a reasonable
prospect of
success.
33.
The sixth ground of appeal set out in the
said Notice reads as follows:
“
3.
Having found correctly that the plaintiff’s claim against the
defendant is for specific performance,
the Court erred and/or
misdirected itself:
3.6
By finding
‘that the litigation arises out of an auction
conducted by the defendant at the behest of the plaintiff’
whilst it is common cause that the litigation arose because of
the defendant’s failure to comply with it’s obligation
in
terms of the agreement entered into between the parties regarding
payment of the game sold to Andrag and Louw at the auction;”
34.
Whilst plaintiff pleaded a claim against
defendant for the sums owed by the first and second Third Parties, no
underlying basis
that would support the plaintiff’s claim was
ever pleaded by the plaintiff. Also, the evidence adduced by the
plaintiff at
the trial did not support any such claim.
35.
In these circumstances as well, there is no
basis for me to find that there is a reasonable prospect that another
court would come
to a different conclusion. Accordingly, I cannot
find that on this ground the appeal, if allowed, would have a
reasonable prospect
of success.
36.
The seventh ground of appeal set out in the
said Notice reads as follows:
“
3.
Having found correctly that the plaintiff’s claim against the
defendant is for specific performance,
the Court erred and/or
misdirected itself:
3.7
By concluding in paragraph 4
‘For various reasons not fully
known at this stage and which are also not material to the present
application both third parties
(the purchasers) either did not follow
through or defaulted on their respective obligations
…’
the Court misdirected itself. Having found that there was a material
averment missing from the plaintiff’s
particulars of claim,
being that defendant was liable to the plaintiff for the purchase
price of the game, in the event of Andrag
and Louw failing to pay the
defendant for the game purchased at the auction, the version of the
defendant in regard hereto (disregarded
by the Court), was that
defendant’s representative would testify, that despite numerous
attempts by them, and eventually
defendant’s managing director
Wim van Rooyen, Andrag simply refused or avoided delivery. The
Court’s speculation that
Bosman was merely attempting to
facilitate delivery as part as part of his duty as an agent is wrong,
especially if regard is had
to the fact that the learned Judge was
dealing with evidence to be considered at the stage of an application
for absolution. Again
it is trite law that if judging evidence at the
stage of absolution there are two or more versions the Court is not
to speculate
on which version should prevail, but find in favour of
the plaintiff;”
37.
In my view, nothing turns on the argument
set out in this ground of appeal. Even if it is accepted that Bosman
attempted to facilitate
the delivery of game his conduct, as such,
does not justify an inference (which must be reasonable) that the
defendant’s
representatives considered the defendant to be
bound to make good to the plaintiff the obligations of the purchasers
to the plaintiff
in circumstances where such purchasers reneged on
their obligations to the plaintiff.
38.
In these circumstances as well, there is no
basis for me to find that there is a reasonable prospect that another
court would come
to a different conclusion. Accordingly, I cannot
find that on this ground the appeal, if allowed, would have a
reasonable prospect
of success.
39.
The eighth ground of appeal set out in the
aforesaid notice reads as follows:
“
3.
Having found correctly that the plaintiff’s claim against the
defendant is for specific performance,
the Court erred and/or
misdirected itself:
3.8
In concluding in paragraph 8 of the judgment that the Plaintiff
‘seeks specific performance
from the defendant in respect of the obligations of the purchasers…
’
and concluding that
‘The
particulars of claim quoted above allow of no other reasonable
interpretation’
.
Again, the Court misdirected itself in finding
that it is at the stage of absolution called upon to interpret the
particulars of
claim. The particulars quoted are to be accepted as
pleaded;”
40.
Plaintiff pleaded that the defendant would
sell certain wild game at auction on plaintiff’s farm
Jakhalsdans on behalf of
plaintiff. Further, that defendant would
collect the proceeds of the respective sales and after tender of
delivery by plaintiff
would pay over the proceeds thus collected to
the plaintiff. This is the case as pleaded by the plaintiff.
41.
The case pleaded by the plaintiff has
inescapable consequences that would apply in these circumstances
unless the plaintiff pleaded
a special term in the contract of agency
between it and the defendant. Although I used the phrase ‘would
allow of no other
reasonable interpretation’, in the judgment,
no interpretation is required. It flows from the plaintiff’s
pleadings.
One of those inescapable consequences would be that the
purchaser would pay the price for the goods he had bid at the
auction.
No special term was pleaded by the plaintiff that would make
defendant liable for this obligation that fell on the buyer. The
naturalia
of the contract of agency between plaintiff and the defendant would
apply in the absence of the special term in the contract of
agency
already referred to above.
42.
This
brings me to the
dicta
of Harms JA in the matter of GORDON LLOYD PAGE & ASSOCIATES v
RIVIERA & ANOTHER
[1]
the
relevant passage is quoted at paragraph 11 of the judgment. This
dictum
asserts that there must be evidence acceptable on the face of it on
all aspects of the plaintiff’s claim to avoid absolution
from
the instances.
43.
As can be seen from the above: firstly,
plaintiff has not pleaded a necessary term of the agency agreement in
order to support its
claim; and secondly, plaintiff has not led
evidence on all aspects of its claim, never mind the requirement that
such evidence
should be acceptable on the face of it. Such evidence
to support defendant’s liability to pay the purchase price,
owed by
the purchaser to the plaintiff, is simply not there.
44.
In these circumstances as well, there is no
basis for me to find that there is a reasonable prospect that another
court would come
to a different conclusion. Accordingly, I cannot
find that on this ground the appeal, if allowed, would have a
reasonable prospect
of success.
45.
The ninth ground of appeal set out in the
aforesaid Notice reads as follows:
“
3.
Having found correctly that the plaintiff’s claim against the
defendant is for specific performance,
the Court erred and/or
misdirected itself:
3.9
In disregarding paragraph 9.3 of the defendant’s amended plea
dated on the day the trial resumed before
the learned Judge, by which
the defendant for the first time allege (sic) that the first third
party had cancelled the sale of
the swart rooibok with Mr Van der
Westhuizen
‘…ten gevolge waarvan die Verweerder geen
verdere verpligtinge met betrekking tot die voormelde swart rooibok
teenoor
die Eiser gehad het nie…’
When considering
at the stage of an application for absolution, whether there is
evidence upon which a reasonable man might find
for the plaintiff,
the evidence has to be judged against the background of the
pleadings.”
46.
Even if the defendant’s amended plea
is relevant at the stage of absolution, such amended plea in my view
amounts to nothing
more than a statement that once there had been a
consensual cancellation between the plaintiff and the first third
party there
can be no claim on any basis for the defendant to make
good the failure of the first third party to pay the purchase price.
In
my view such amended plea does not amount to an admission that
there is or ever had been a basis for plaintiff to claim the
fulfilment
of such obligation from the defendant.
47.
In these circumstances as well, there is no
basis for me to find that there is a reasonable prospect that another
court would come
to a different conclusion. Accordingly, I cannot
find that on this ground the appeal, if allowed, would have a
reasonable prospect
of success.
48.
The tenth ground of appeal set out in the
relevant Notice reads as follows:
“
3.
Having found correctly that the plaintiff’s claim against the
defendant is for
specific performance, the Court erred and/or
misdirected itself:
3.10 The learned
judge erred in applying the approach adopted in the case of
SPRINGFIELD OMNIBUS SERVICE DURBAN v PETER MASKELL
AUCTION CC and
ANOTHER, as being applicable to the circumstances governing the
auction in the present matter. The auction in that
matter was simply
a normal auction, not subject to any specific terms contained in an
agreement entered into between the seller
and the auctioneer prior to
the auction.”
49.
The
passage quoted in the Springfield Omnibus matter
[2]
referred to in paragraph 16.1 of the judgment, sets out the three
contracting parties involved in an auction, deals with the three
distinct contracts and contractual relationships that come into
existence when an auction is conducted. The passage is of such
general application that it is only in rare instances when it would
not apply. The only instance where it would not apply that
I can
think of is possibly when the auctioneer sells his own goods on
auction. Then the contractual relationships set out in Springfield
Omnibus case would not apply. It certainly cannot be distinguished on
the basis that plaintiff seeks to distinguish it from the
instant
case.
50.
In these circumstances as well, there is no
basis for me to find that there is a reasonable prospect that another
court would come
to a different conclusion. Accordingly, I cannot
find that on this ground the appeal, if allowed, would have a
reasonable prospect
of success.
51.
The eleventh and twelfth grounds of appeal
set out in the aforesaid Notice have already been dealt with.
52.
Turning now to deal with what plaintiff
contends in the Heads of Argument filed on its behalf, insofar as
such arguments are not
set out and already dealt with as a ground of
appeal in the Notice of Application for Leave to Appeal.
53.
I will not be setting out the averments
made in the plaintiff’s Heads of Argument as this will make an
already cumbersome
judgment unmanageable, but will deal with the
arguments raised to the extent necessary by referring to the relevant
passages in
the plaintiff’s Heads of Argument. Where
appropriate and where paragraphs are interrelated or deal with the
same issue in
the application for leave to appeal, I will deal with
such grounds in batches.
54.
It is convenient to deal with the issues
raised in paragraphs 7 to 13 of the plaintiff’s Heads as the
first set of issues
I need to canvass in the said Heads of Argument.
55.
The defendant’s version, including
its instructions from Klopper and Bosman had to be put to the
plaintiff’s witnesses
when they were under cross-examination as
defendant could not assume that absolution from the instance would be
granted. Defendant
had to lay the basis for its defence and challenge
the evidence of the plaintiff’s witnesses where it was at odds
with the
instructions and evidence provided to it in case absolution
was not granted. In those circumstances if the defendant did not do
so there would be no opportunity to recall the plaintiff’s
witnesses.
56.
As has already been pointed out Mr Van der
Westhuizen who gave evidence for the plaintiff, testified that the
position that would
prevail if one of the purchasers reneged on their
obligation to pay was never discussed with the defendant. It is not
part of the
naturalia
of an agency agreement. On Mr Van der Westhuizen’s evidence it
could not be part of the relevant agency agreement in this
matter.
57.
The excerpt of the evidence quoted in
paragraph 11 of the plaintiff’s Heads has been taken out of
context. Particularly as
Mr Van der Westhuizen testified that the
issue of what would happen if a buyer reneged was never discussed
between the plaintiff
and the defendant.
58.
The statement of Mr Van der Westhuizen
quoted in paragraph 11 of the Heads is nothing more than a baseless
statement when he was
confronted with the improbability of the
defendant taking on the obligations of the purchasers who reneged on
their obligations.
This must also be seen in the light of the fact
that no basis for holding the defendant liable for the obligations of
the purchasers
was pleaded by the plaintiff in its Particulars of
Claim.
59.
The contentions set out on plaintiff’s
behalf in paragraphs 14 to 16 of the Heads filed on plaintiff’s
behalf also stand
to be dealt with as a unit.
60.
The question the court was faced with at
the stage of assessing the application of the defendant for
absolution did not concern
the credibility of the defendant’s
witnesses but whether the plaintiff had pleaded and established, on
the basis of
prima facie
evidence on all aspects of its claim that would establish a complete
cause of action.
61.
The arguments set out in paragraphs 17 to
26 in the Heads filed on behalf of the plaintiff will be dealt with
as a unit as they
are interrelated.
62.
The argument that the evidence referred to
in paragraphs 17.1 to 17.3 had to be considered before absolution was
granted cannot
be sustained. Such evidence would only have been
relevant in two circumstances: Firstly, if plaintiff’s claim
was not for
specific performance but for contractual damages arising
out of the respective breaches of the relevant agency agreement
pleaded
in paragraphs 17.1 to 17.3; and secondly if plaintiff had
pleaded a complete cause of action. Neither of these scenarios was
applicable
when the court ruled that absolution from the instance be
granted.
63.
This court’s finding on the attempts
of Bosman trying to facilitate the delivery of game to the purchasers
was done in an
attempt to execute the defendant’s obligations
to the plaintiff, as its agent, is an inference that flows from the
naturalia
of the agency agreement between them. As such it is not speculation.
64.
The arguments set out on plaintiff’s
behalf in paragraphs 27 to 32 of the Heads filed on behalf of the
plaintiff are interrelated
and will also be dealt with together.
65.
The statement of the law as pleaded in
paragraph 7.1 of the defendant’s conditional claim against the
third parties, which
is referred to in paragraph 28 of plaintiff’s
Heads, is wrong for the following reasons:
65.1.
The plaintiff was never a party to the
general rules of the auction. In law those only apply between the
auctioneer and the purchaser;
65.2.
The general rules of an auction do not, in
law, make a purchaser of game at an auction a party to the agency
agreement that is concluded
between the seller of game, as principal,
and an auctioneer as the sellers agent;
65.3.
Neither the plaintiff nor the third parties
signed a service liaison agreement;
65.4.
The defendant’s Plea and the
averments in its provisional claim against the third parties does not
detract from the fact that
the plaintiff had to plead and adduce
evidence on a complete cause of action; and
65.5.
The averments in the claim against the
third parties were made provisionally, on the basis that the
defendant be found liable to
the plaintiff.
66.
The arguments in paragraphs 33 to 38
are interrelated and will be dealt with together.
67.
Whilst it may be that no exception was
raised by the defendant, namely that the Particulars of Claim lack an
essential averment,
the defendant could not foresee what evidence the
plaintiff would lead in support of its case.
68.
It is a question for the court to decide if
the plaintiff’s cause of action is incomplete, the view of the
plaintiff’s
witnesses on this aspect is irrelevant.
69.
In respect of the argument set out in
paragraph 38 of the Heads filed on behalf of the plaintiff, plaintiff
loses sight of the fact
that the naturalia of an agreement of agency
does not include a term that the auctioneer will stand good for a
purchaser’s
obligations to the seller if the purchaser reneges
on its obligation to pay the purchase price.
70.
The other arguments set out in the Heads of
Argument filed on behalf of the plaintiff have substantively been
dealt with elsewhere
in this ruling. It would serve no purpose to
repeat them.
71.
In all the issues set out in the Heads of
Argument filed on behalf of the plaintiff I cannot find that there is
a reasonable prospect
of another court coming to a different
conclusion. In the circumstances, I cannot find that the plaintiff
would have a reasonable
prospect of success on appeal on these or any
of the other grounds raised by the plaintiff.
72.
The plaintiff has not relied on
sub-sections 17(1)(a)(ii), 17(1)(b) or 17(1)(c).
73.
In these circumstances, the application for
leave to appeal stands to be dismissed.
74.
The only remaining issue is the issue of
costs. Both parties agreed that costs should follow the result. I can
find no reason not
to follow the general rule on costs and this will
be reflected in the order.
In
the circumstances, the following order is made:
1)
The application for leave to appeal is
refused.
2)
The plaintiff/applicant is to pay the costs
of such application.
_____________________
Lawrence
Lever
Judge
Northern
Cape Division, Kimberley
Representation:
Applicant:
Adv GJ Gagiano – oio Engelsman Magabane
Respondent:
Adv JG Gilliland – oio Van De Waal Inc.
Date
of hearing:
05 November 2021
Date
of Judgment: 04
March 2022
[1]
2001
(1) SA 88
at 92E – 93A.
[2]
2006
(4) SA 188
(NPD) at 191I to 192C.