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2022
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[2022] ZANCHC 17
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Karoo Wild Dienste (Pty) Ltd v Grieqwa-Land West Cooperative Limited and Others (141/2016) [2022] ZANCHC 17 (4 March 2022)
IN
THE HIGH COURT OF SOUTH AFRICA
NORTHERN
CAPE DIVISION, KIMBERLEY
Case
No: 141/2016
Reportable:
NO
Circulate
to Judges: NO
Circulate
to Magistrates: NO
Circulate
to Regional Magistrates: 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.
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.
13.
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’
.”
14.
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.
15.
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.
16.
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.
17.
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.
18.
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
19.
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;”
20.
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.
21.
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.
22.
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.
23.
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 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;”
25.
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.
26.
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.
27.
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;”
28.
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.
29.
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.
30.
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.
31.
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.
32.
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.
33.
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;”
34.
What is set out in paragraphs 28 to 31 above is applicable to this
contention
made by the plaintiff.
35.
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.
36.
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;”
37.
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.
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 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;”
40.
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.
41.
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.
42.
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;”
43.
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.
44.
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.
45.
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.
46.
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.
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 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.”
49.
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.
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 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.”
52.
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.
53.
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.
54.
The eleventh and twelfth grounds of appeal set out in the aforesaid
Notice have
already been dealt with.
55.
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.
56.
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.
57.
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.
58.
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.
59.
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.
60.
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.
61.
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.
62.
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.
63.
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.
64.
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.
65.
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.
66.
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.
67.
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.
68.
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:
68.1. The plaintiff was
never a party to the general rules of the auction. In law those only
apply between the auctioneer and the
purchaser;
68.2. 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;
68.3. Neither the
plaintiff nor the third parties signed a service liaison agreement;
68.4. 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
68.5. The averments in
the claim against the third parties were made provisionally, on the
basis that the defendant be found liable
to the plaintiff.
69.
The arguments in paragraphs 33 to 38 are interrelated and will
be dealt
with together.
70.
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.
71.
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.
72.
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.
73.
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.
74.
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.
75.
The plaintiff has not relied on sub-sections 17(1)(a)(ii), 17(1)(b)
or 17(1)(c).
76.
In these circumstances, the application for leave to appeal stands to
be dismissed.
77.
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:
AdvJG 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.