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[2021] ZANCHC 3
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Property One Shop CC t/a Remax Kalahari v Snyman N.O and Others (493/2017) [2021] ZANCHC 3 (8 January 2021)
IN THE HIGH COURT OF
SOUTH AFRICA
(Northern Cape
Division, Kimberley)
Reportable:
YES/ NO
Circulate to Judges: YES/
NO
Circulate to Regional
Magistrates: YES/ NO
Circulate to Magistrates:
YES/ NO
Case number:
493/2017
Date
heard:
17/06/2020
Date
available:
08/01/2021
In the matter of:
PROPERTY
ONE SHOP CC t/a
REMAX
KALAHARI
Plaintiff
and
WOUTER
WESSEL SNYMAN
N.O.
First
Defendant
CARINA
MARANITA SWARTZ
N.O.
Second
Defendant
ELMARI
KRIEK
N.O
Third
Defendant
Coram: Van Tonder, AJ
JUDGMENT
VAN TONDER, Al
[1]
This is a claim by the plaintiff for
payment of estate agent's commission in the amount of R1
904 849-93 against the Johan Snyman family
trust.
[2]
The plaintiff relies on a partly oral and
partly written, alternatively tacit agreement entered into between Mr
van der Schyff on behalf of the plaintiff
and Mr Hans Kruger
and/or
the
first
defendant,
on
behalf
of
the trust,
which
agreement
was
entered
into
between March to May 2016.
[3]
The
plaintiff
relies
on
six
emails
exchanged
between
van der Schyff on behalf of the plaintiff and Kruger on behalf of the
first defendant, in the period between
5
May 2016 and 18 May 2016 as the written part of the agreement.
[4]
The plaintiff also relies on clause 11 of
the sales agreement
that
was
signed
by
the
first
defendant
on the 18
th
of
May 2016, which agreement states the following in clause eleven
thereof:
"11.
AGENTS COMMISSION
11.1
the PURCHASER (Assmang) warrants
that he were introduced to the property by RE/MAX and by no other
agent and that RE/MAX was the
effective cause of the sale.
11.2
The SELLER (the trust) shall be
liable to pay a professional fee to RE/MAX of R475-00 per hectare
plus VAT as agreed upon."
[5]
The defendants deny that the plaintiff
traded as an
estate
agent and denied that the plaintiff as well as the members of the
plaintiff and Mr van der Schyff possessed the necessary
fidelity fund
certificates in terms of section 26 of the Estate Agency Affairs Act,
no 112 of 1976.
This
was however resolved prior to the commencement of the trial.
[6]
The
defendants
also
deny
that
there
was
any
agreement and specifically a contract of mandate
entered into between the plaintiff and the
trust as
pleaded
by the plaintiff.
[7]
The defendants however admit receipt of the
six receipt and
sending
of
the
six
emails
relied
upon
by
the
plaintiff, and the defendants also admit that the first defendant had
signed the agreement dated the 18 May 2016 (including
clause 11
thereof).
[8]
The basis of the defendants' denial in
respect of the agreement is worded as follows:
"4.2
The
Defendants
further
plead
that any
such
a contract the court may find
factually had been concluded (which remains denied) would in any
event be invalid as all of the
defendants
would
have
had
to
act
jointly
in
terms of
the Johan Snyman
Family Trust Deed in order
to bind the Trust to such a
transaction. They did not.
4.3
The Defendants moreover plead
that any and all correspondences the parties had sent to and fro
between
each
other, were precipitated
by
an
agreement
that Remax had concluded with Assmang (Pty) Ltd.
4.4
At no stage did there
factually exist any agreement of mandate as alleged or otherwise,
between Remax and the Defendants.
Nor was there any agreement that the
Defendants would pay Remax any commission from the proceeds of the
sale.
Any
commission that the Defendants would have been liable for in terms of
the transaction Remax had brokered on strength of its
Assmang
mandate, would have been added onto the price Assmang (Pty) Ltd paid
for the
merx."
[9]
The
terms
of
the
agreement
(which
are
all
denied
by
the
defendants)
were
pleaded
by
the
plaintiff
as
follows:
9.
Die volgende was die uitdruklike,
alternatiewelike stilswyende, alternatiewelik gei"mpliseerde
terme van die voormelde ooreenkoms:
9.1.
Verweerders
het
'n
mandaat
aan
die
Eiser
verleen
om as
eiendomsagent
die
plaas
Watermeyer
576
namens die Eiser te bemark teen
betaling van die gebruiklike kommissie.
Die mandaat is aanvanklik deur die
Eerste Verweerder
gedurende
Maart/April
2016
verleen
en deur
Kruger
gedurende
Mei 2016
bevestig;
9.2.
Die gemelde mandaat is mettertyd
uitgebrei om ook die grand bekend as die resterende gedeelte van
gedeelte
1
van die p/aas O'Donogue 577 in te
s/uit;
9.3.
lndien 'n koopooreenkoms tussen die
verweerders en Assmang (Edms) Bpk gesluit word ten opsigte van die
Plase
•
genaamd
Resterende Gedeelte van die p/aas Watermeyer
576 en Resterende Gedeelte van Gedeelte 1 van die plaas O'Donogue
577, dan erken die
verweerders dat die eiser die effektiewe oorsaak
was wat aanleiding gegee het tot sluiting van die ooreenkoms.
Die erkenning
is vervat in die
koopkontrak hierbo na verwys wat ook
die ooreenkoms met betrekking
tot
die kommissie
soos
uiteengesit
in die hieropvolgende paragraaf
ref/ekteer.
9.4.
Indien uitvoering aan die ooreenkoms
gegee word deur die eiendomme oor te dra in naam van die koper, dan
sal die verweerders aan
die eiser kommissie betaal bereken teen
R475.00 per hektaar plus Belasting op Toegevoegde Waarde."
[10]
The
defendants
admit
that
the sales
agreement
dated 18 May 2016 between the trust and
Assmang was not brought to fruition, and admit that during or about
October 2016 a new sales agreement was
entered into between the defendants and Assmang in respect of the
same
farms,
with a different
property
description.
[11]
The
defendants
furthermore
admit
that
the
new (October 2016) agreement was fulfilled
and that the aforesaid farms were indeed transferred from the trust
into
the
name
of
Assmang
on
the
17
th
of
February
2017.
[12]
The defendants however expressly pleaded
that:
“
The
merx
ultimately sold was however
substantially different to the one Remax had
-
in terms of its Assmang mandate
-
brokered.
"
[13]
The
plaintiff
furthermore
pleaded
(all
of
which
are denied by the defendants)
that:
"13bis. Eiser was
die effektiewe oorsaak van laasgenoemde verkoping en oordrag van
eiendomsreg aangesien Eiser die koper, te
wete Asmang (Eiendoms)
Beperk, aan die eiendom en aan die Verweerders voorgestel het, welke
voorstel gelei het tot die aanvanklike
koopooreenkoms van Mei 2016
ooreenkoms asook die latere onderhandelinge en die aangaan van die
Oktober 2016 ooreenkoms tussen Verweerders
en Assmang (Eiendoms)
Beperk.
14.
In
die
vooropstel/ing is die verweerders
aan die eiser die bedrag van
Rl,904,849.93 verskuldig, synde 3517,7284 hektaar maal R475.0D plus
BTW teen 14%."
BACKGROUND
[14] During March
2016 Mr Dirk Coetzee of Assmang approached the plaintiff as an estate
agent in order to find farms suitable
for purchase by the mine, as
the sellers normally drastically inflated their prices when being
approached by the mine directly.
[15]
One of the farms listed by Coetzee on the
list that he provided to Remax was the farm Watermeyer.
[16]
Coetzee had heard that Assmang had directly
liaised with the owner of Watermeyer some years previously, but he
nonetheless requested
Remax to act as an intermediary
with regard
to
this potential
sale.
[17] Arising from
the aforesaid, van der Schyff on behalf of the plaintiff contacted
various farmers including the first defendant
to enquire whether
their farms were up for sale. The first defendant indicated that he
would be willing to sell if the price were
right and he mentioned a
price of R6 500-00 per hectare.
[18]
On 24 March 2016 van der Schyff on behalf
of the plaintiff addressed an email to Mr Coetzee of Assmang which
stated:
''Aangeheg is
vorderingsverslag van die plase waarop julle navraag gedoen het. Ek
kon nog nie met al die eienaars kontak maak nie,
maar sal die
inligting deurgee sodra ek dit bekom het."
[19]
The summary contained references to a
number of different
farms
(including
a
handwritten
reference
to
the farm Gamasip) of which the farm
Watermeyer, is listed as_
number
8 and a selling price of R7 000-00 per hectare (inclusive of
commission)
is
mentioned.
[20]
On 18 April 2016 van der Schyff again
emailed Coetzee with particular reference to the three farms which
Coetzee on behalf of Assmang
had indicated they were interested in
namely Beaumont, Watermeyer and Gomasip.
[21]
In
respect
of Watermeyer
the
email reads:
"Die prys is
huidiglik Rl 000-00/hektaar (BTW uitgesluit), maar die eienaar het
genoem hy sal kyk na 'n aanbod.
Die prys sal dan ook
sekere diere in of uitsluit, maar dit het hy gese ons sal bespreek as
daar 'n skriftelike aanbod is."
[22]
On 20 April 2016 Coetzee in an email asked
van der Schyff to make an offer in respect of the farm Watermeyer at
a price of R7 000-00
per hectare and to specifically include certain
conditions precedent, in respect of. approval by the Assmang
executive committee
for the purchase of the properties within 45 days
from date of acceptance, and also approval by the Northern Cape
Department of
Environment and Nature conservation regarding the sale
and purchase of the properties
for
the purposes
of
an offset area.
[23]
Van der Schyff then took the first Remax
offer to purchase to the first defendant, who subject to certain
conditions accepted the
offer in principle, including the fact that
the farm O'Donogue had to be included in the sale.
[24]
This was followed by an email from van der
Schyff to Coetzee on the 27 of April 2016 which confirmed the
following:
"Soos gister per
telefoon bespreek die volgende:Die eienaar aanvaar die aanbod wat
julle horn gemaak het, maar ook onder sekere
voorwaardes nl:
1.
Ek moet horn 'n week kans gee
om die aanbod ook met sy Trustees te bespreek
-
Plaas
is in Trust geregistreer.
2.
Hy wil ook net eers ander
grond kry vir homself om na toe te skuif
-
Dit mag dalk 'n rukkie neem, maar hy sal
volgende week meer duidelikheid kan gee insake die situasie.
3.
Daar
is
'n
ekstra
900
ha
(plaas
O'Donnaghue
-
Suid
van Watermeyer
-
Nie Noord soos ek
genoem
het nie) wat deel is van Plaas
Watermeyer wat hy as 'n eenheid met
Watermeyer
wil
verkoop.
As
julle
nie
die
ekstra deel
kan
bykoop
nie,
moet
onslhy
dalk
.
met
sy Buurman
onderhande/
om daardie deel
terug te koop
Ek
sal Dinsdag
-
2
Mei 2016 weer met eienaar in verbinding tree en terugvoer verskaf."
[25]
On the 4
th
of
May 2016 van der Schyff visited the farm Watermeyer for having the
first defendant signed the second Remax
contract,
but
the first defendant indicated
that
he
first
wanted
his
attorney
to
look
at the contract.
[26]
On 5 May 2016 van der Schyff then addressed
an email to the trust's attorney of record, one Hans Kruger at
Duvenhage and van der
Merwe Attorneys to which he annexed
a
draft
written
contract
of
sale
in
respect
of the farm Watermeyer.
[27]
The agreement was made out in the name of
the Johan Snyman Family Trust, IT64/2002 as the seller for the
sale
of
the
farm
Watermeyer
for
a
purchase
price
of
R18 962 650-00, excluding VAT.
[28]
Clause 11
of
the agreement
provided
as follows:
"11
AGENT'S
PROFESSIONAL
FEE
11.1
The Purchaser warrants that he/she
was introduced to the property by RE/MAX and by no other Agent and
that the RE/MAX
was
the effective cause of the sale.
11.2
The Seller shall pay a professional
fee of
7%
INCLUDING
VAT as agreed upon between the Seller and RE/MAX.
The said fee will be earned upon
acceptance of this offer and the subsequent fulfilment of any
suspensive conditions
contained
herein, and shall be payable not later than the
date of transfer of the property
into the name of the purchaser."
[29]
Also
on
the
5
th
of
May
2016
van
der
Schyff
sent
an email to Coetzee which stated as
follows:
"Soos per
telefoon bespreek vanoggend die volgende:
Ek het gister laat
weet dat eienaar van Plaas Watermeyer vandag sou teken, maar
ongelukkig het dit nie gebeur nie.
Die eienaar wou nou
eers saam met sy Prokureur deur die Koopkontrak/aanbod gaan.
Ek het die kontrak vir
hul aangestuur en hoop om spoedig van hulle af terugvoering te kry.
Sal
julle laat weet so gou moontlik wat die stand van sake is en wanneer
die ondertekening
sal
geskied.
"
[30]
The email sent by van der Schyff to Kruger
was answered by Kruger on 9 May 2016 in which email the following was
said:
"Aangeheg is die
koopkontrak wat ons opgestel het ooreenkomstig die Trust se
instruksies.
Het reeds aan Wouter
bevestig dat jy en die voornemende kopers more omstreeks 7:00 die
eiendom sal besoek.
Ons
het die Verkoper versoek
om
die
koopkontrak te teken en aan jou te stuur.
Laat weet gerus indien
enige voorgestelde wysigings aan die kontrak aangebring moet word.
Ons
het ook instruksie ontvang van die Trust om met sekere plaaseienaars
te onderhandel rakende die koop van nuwe p/aaseiendom.
Geliewe ons in kennis te stel
wanneer hierdie transaksie verseker sal voortgaan sodat ons met
sekerheid kan onderhandel
met
die nuwe verkopers.
"
[31]
On
the
17
th
of
May
2016
van
der
Schyff
sent
an
email to
Kruger
stating
inter alia
the
following:
"Goeie dag Hans.
Hou
die koopprys soos oorspronklik.
R25
263 000-00
Maak my kommissie
R475/ha plus BTW (Wouter kan BTW terug eis omdat RE/MAX en Wouter BTW
geregistreer is)
Wouter
kry
dan
R6
702/ha
in sy sak.
"
[32]
This email was answered by Kruger on the
18
th
May
2016 to
which
an amended
contract
for
a purchase price of R25 263 000-00 excluding VAT for the farms
Watermeyer 576 and O'Donogue 577, was attached, with the indication
that the seller would sign the agreement on 14:00.
[33]
The
agreement
attached
thereto
was
then
signed
by
the
first
defendant
and
sent
to
van
der
Schyff
by
Kruger via email at
14:53
on 18 May
2016.
[34]
It
is
on this agreement that the plaintiff relies as part of the
written
portion
of
the
agreement
between
the plaintiff and the trust.
[35]
The
heading
of
the
agreement
refers
to
AGREEMENT
OF PURCHASE AND SALE OF
FARM PROPERTY and the parties
are
recorded
as
follows:
"MEMORANDUM
OF
AGREEMENT
MADE
AND
ENTERED
INTO
BY
AND BETWEEN
THE TRUSTEES FOR
THE TIME BEING OF THE
.JOHAN SNYMAN
FAMILIE TRUST
REGISTRATION NUMBER
IT64/2002
Herein represented by
WOUTER
WESSEL SNYMAN
In his/her capacity as
Trustee
Duly authorised hereto
by a Trust Resolution (Hereinafter referred to as the SELLER)
and
ASSMANG PROPRIETARY
LTD
REGISTRATION NUMBER
1935/007343/07
Herein
represented by
COPANO
DAVID
SALEMO
In his capacity as
DIRECTOR of the
Company and duly
authorised thereto
(Hereinafter referred
to as the PURCHASER)
IN
TERMS
WHEREOF
THE PARTIES
AGREES
AS FOLLOWS:"
[36]
Clause
11 of the
agreement refers to the agent's commission as set out above.
[37]
Clause
12 of the
agreement refers to the special conditions and states the following:
"Assmang's .offer
shall be subject to the following conditions:
12.1
Approval by the Assmang
Executive committee for the purchase of the property within 45 (FORTY
FIVE) days from date of acceptance
of this offer by the owner.
12.2
Approval by the Northern Cape
Department of Environment and Nature Conservation regarding the sale
and the purchase of the properties
for the purpose of and Offset
area.
12.3
If
the Seller does not find a suitable
farm within 60 (SIXTY) days of
acceptance of this offer by the Seller then the Seller and Purchaser
can negotiate to extend the
process for another fixed period.
If
the Seller
does not find a suitable farm within
the time period provisioned for them the contract will be cancelled."
[38]
On 6 June 2016 Assmang requested certain
changes to the contract and on the 17
th
of June 2016 a representative of Assmang, Mrs Retha Mboya, addressed
an
email
to
van
der
Schyff
advising
him
that:
"Please note that
Hans (the trusts attorney) has considered and accepted all my
proposed changes. I now await the amended Agreement
for my final
consideration."
[39]
On
the
29
th
of
July
2016
Assmang
sent
an
email
to
Kruger which stated the following:
"Dear Hans
With reference to the
above matter and to the Agreement of Purchase and Sale of Farm
Property (the "Agreement") between
Assmang (Pty) Ltd and
your client, Johan Snyman Family Trust.
As you are aware, the
agreement stipulates as a special condition that, Assmang's offer
will be subject to its Executive Committee
approving the purchase of
the property by a proximately 4 July 2016.
Please take note that
due to the fact that your client requested that the purchase price be
increased to an amount of R30 million,
the Assmang Executive
Committee did not approve this transaction, and as such, shall not
make a recommendation to the Assmang Board
of Directors to proceed
with this transaction.
In view of the above,
the approval by the Assmang Executive Committee that is required by
the Agreement has not been granted, and
will not be granted, as such,
we are of the opinion that the Agreement is still conditional, and
shall remain conditional, and
as such must unfortunately laps as at
today's date.
Accordingly, Assmang
will no longer be proceeding with this sale."
[40]
On the 22 of August 2016, van der Schyff
sent an email to Kruger indicating that he had heard that . the
defendants and Kruger have
gone back to Assmang's representatives and
that the original sales price was accepted.
He rather sarcastically asked what the
reasons were that he did not make out part of the negotiations
anymore, as he had previously
asked telephonically
and
via
email
that
he
be
kept
up
to speed on the developments.
[41]
On
the
same
day
Kruger
answered
the
email
as follows:
"Wat
onderhandelinge tussen Assmang en Snyman Trust betref het daar geen
feitlike ooreenkomste plaasgevind waarby jy nie ingsluit
was nie!
Indien daar enige noemenswaardige ooreenkomste tussen die partye
gesluit word sal dit we/ onder jou aandag gebring word.
Jy is in kennis gestel
toe die koopooreenkoms finaa/ deur Assmang gekanselleer is. Geen een
van die opskortende voorwaardes is vervul
nie en derhalwe bestaan
daar nie eens 'n koop-opsie nie.
Daar
is we/ verwikkelinge aan die Trust se kant en in die verband het ek
Vrydag 'n e-pos gestuur aan 'n personeellid by Assmang
om dit onder
hul/e aandag te bring nadat ek verneem het dat Assmang se finansiele
committee op 31 Augustus 2016
vergader.
"
[42]
On the 28
th
of September 2016 Mrs de Waal from the plaintiff, sent an email to
Kruger stating that the mine (Assmang) had informed her that
they are
proceeding with
the
transaction
and
that
Remax
must
make
contact directly with Kruger.
She
also asked that all communication and progress in respect of the
transaction be forwarded to her.
[43]
The next day Kruger sent an email to de
Waal which stated the following:
"Dit is vreemd
dat die myn julle in kennis gestel het dat hulle aangaan met die
transaksie aangesien die myn dit nog nie pertinent
aan ons kantore of
aan die verkoper gekommunikeer het nie. Daar is wel onderhandelinge
aan die gang en het ons ook 'n konsep koopkontrak
aan die myn gestuur
vir oorweging.
Ons klient het 'n
koop-opsie geneem op 'n ander p/aas en is hy verplig kragtens die
opsie om dit uit te oefen voor of op 30 Sept.
2016. Gevo/glik vertrou
ons dat die myn dieselfde inligting wat aan julle gekommunikeer is
ook skriftelik aan ons sal kommunikeer
voor more. Sonder 'n
skriftelike aanvaarding van die myn sal die koop-opsie van ons klient
waarskynlik verval."
[44]
On the 12
th
of October 2016 van der Schyff sent an
email to
Kruger
enquiring
as
to
whether
there were any developments with the sale
of the farm to Assmang as Remax no longer took part in the
negotiations between the parties.
[45]
Kruger
replied
on
the
17
th
of
October
2016
in
an email to van der Schyff
which
stated the following:
"Die koper en
verkoper het tot 'n ooreenkoms gekom. Sien aangehegde e-pos wat dit
bevestig. Sien ook Assmang se bevestiging
dat hul nie verantwoordelik
is vir agente kommissie nie. Volgens Assmang was daar nooit enige
mandaat deur hulle gegee met betrekking
tot 'n agent nie.
Die
koopkontrak (wat jy beding het) waarin Remax as agent opgetree
het, het finaal
tot
'n
einde
gekom
op
29
Julie 2016. Sien ook aangehegde e-pos
van jouself waarin dit bevestig is dat daardie onderhandelinge finaal
gestop was.
Sien verder hierby
aangeheg dat daar op 17 Augustus 2016 met nuwe onderhandelinge begin
is. Hierdie onderhandelinge het ontwikkel
tot 'n ooreenkoms.
Tydens konsultasie met
die Verkoper is daar vasgestel dat Assmang reeds in Julie 2013 'n
aanbod aan die Verkoper gemaak het welke
aanbod nie deur die Verkoper
aanvaar is nie. (Sien hierby aangeheg die aanbod). Met verdere
navraag aan die Verkoper is bevestig
dat hy nooit enige mandaat aan
Remax gegee het met 'n opdrag om die plaas Watermeyer te verkoop nie.
Met verwysing na
bovermelde is dit derhalwe ons advies aan die Verkoper dat die
effektiewe oorsaak van die transaksie nie deur Remax
bewerkstellig is
nie.lndien agente kommissie van R1 .8. miljoen (soos deur julle geeis
is in die eerste ooreenkoms wat ten einde
geloop het) geeis word sou
die Verkoper in elk geval nie tot die koop kon instem nie.
Indien
enigiets onduidelik
is
kontak my gerus.
"
[46]
It is common cause between the parties that
during October 2016 an agreement was entered into between Assmang and
the trust in terms
of which the farm Watermeyer 789 was sold to
Assmang for a purchase price of R25
600
000-00 excluding
VAT.
[47]
The
heading
of
this
agreement
refers
to
AGREEMENT
OF
PURCHASE
AND
SALE
OF
FARM
PROPERTY
AND
GAME and the
parties
are recorded as follows:
"MEMORANDUM
OF AGREEMENT
MADE
AND ENTERED INTO BY AND BETWEEN
THE
TRUSTEES
FOR
THE
TIME
BEING
OF
THE
JOHAN SNYMAN
FAMILIE TRUST
REGISTRATION NUMBER
IT64/2002
Herein represented by
WOUTER WESSEL SNYMAN
In his/her capacity as
Trustee
Duly authorised hereto
by a Trust Resolution
(Hereinafter referred
to as the SELLER)
and
ASSMANG PROPRIETARY
LTD
REGISTRATION NUMBER
1935/007343/07
Herein
represented by
CO
PANO
DAVID SALEMO
In his capacity as
DIRECTOR of the
Company and duly
authorised thereto
(Hereinafter referred
to as the PURCHASER)
IN
TERMS WHEREOF
THE
PARTIES
AGREES
AS
FOLLOWS:"
[48]
The
sale
also
included
game
specified
as
follows:
15 x Oryx
15 x Blesbuck (grey)
2 x Blesbuck (White)
25 x Springbuck and
25 x Springbuck (copper)
[49]
In
clause
8
of
the
agreement
the
a_greement
provides as follows:
"8.1 Both
the SELLER and PURCHASER shall not be liable to pay a professional
fee to any estate agent as a result of the
conclusion of this
transaction."
[50]
On
the
28
th
of
October
2016
an
email
was
sent
from
Retha Mboya to Kruger:
"In the first
instance, I would like to advise that at this moment there is no
fully signed and/or binding agreement between
Assmang and the Johan
Snyman Familie Trust.
As
all the parties are aware, at
this
late stage of finalising
the
sale agreement, there is now a dispute regarding Remax's commission
on the sale:
Remax
believes that it is entitled to a commission, however Hans is of the
view
.
that
they are not entitled to any commission
-
there obviously now exists a deadlock
between Remax and the Seller.
At
this point in time, the Assmang Exco expected for this agreement to
be signed, however, Hans is of the view that no agreement
can be
signed until the issue of the commission is dealt with
-
I
agree, as such, no agreement
will be concluded until this matter
has been resolved.
.
In view of the
above, and in order to settle this matter amicably between us
attorneys, can you both of you give me guidance on
how you envision
this matter should be resolved as a matter of urgency, noting that
the dispute is actually
between the Seller and Remax."
[51]
The three issues that court need to
determine
is:
[51.1]
Was
the
plaintiff
mandated
by
the
trust
to
sell
the farms?
[51.2] Was the plaintiff
the effective cause of the sale?
[51.3] Was the
merx
sold in terms of the first and second sale agreements the same or
substantially similar?
THE PARTIES
CONTENTIONS
[52]
Adv van Aswegen on behalf of the defendants
argued that the trust had never granted a mandate to the
plaintiff
to
sell
the
farms
Watermeyer
and/or O'Donogue.
[53]
He argued that it
was in fact Assmang
that had granted a
mandate
to
the
plaintiff
in
order
to
enable
Assmang to purchase properties, including
Watermeyer and O'Donogue.
[54]
The defendants furthermore contended that
any commission due to
the
plaintiff
would
therefore have
had
to be paid by Assmang.
[55]
Adv van Aswegen furthermore argued that if
the court should find that first defendant had in fact granted Remax
a mandate to sell
the farm, then and in that event,
the
mandate
was
not
properly
given
in
that
the
mandate was not authorised, discussed and decided upon by both
the first and second defendants who were the trustees at the time.
[56]
It
is
common
cause
that
during
2016
the
third defendant
was not yet a
trustee
of
the trust.
[57]
Adv van Aswegen argued that if a mandate
was indeed given or a
written
sale concluded
the
trust
denies that all the trustees at the time acted jointly in given the
mandate and that the mandate
was
invalidly
given.
[58]
Adv van Aswegen argued that the written
contract of
sale
fell through as a result of the fact that Assmang's executives had
not approved thereof in terms of the suspensive condition.
[59]
He also argued
that
the
suspensive
conditions
regarding the obtaining of other properties by the first defendant
was not timeously
complied
with,
and that this also contributed to the fact that the first sales
agreement did not proceed.
This
was not expressly pleaded in the defendants' plea.
[60]
Adv van Aswegen then also argued that the
second sale was negotiated by Kruger without any intervention
and/or contribution by the plaintiff, and
that these negotiations then resulted in the eventual sale of the
property.
[61]
The defendants furthermore contended that
the first sales agreement was in respect of the farms
Watermeyer 576 and O'Donogue 577 whereas
the second sales agreement was in respect of the farm Watermeyer 789,
which was a consolidation
and subdivision
of
the
up to
then
farms
Watermeyer
576 and O'Donogue 577.
Adv van Aswegen therefore argued that the
merx
that
was sold in terms of the second agreement was not the same as the
merx
that
was sold in terms of the first agreement.
[62]
Adv van Riet SC on behalf of the plaintiff
argued that there could be no doubt that the trust had given Remax
a mandate during April 2016 to sell the
property in question, at a purchase price agreed upon (R6 500-00 per
hectare), which mandate
was subsequently expressly confirmed by the
trust when it agreed to pay the
plaintiffs
commission
in
terms
of
the
first
agreement of sale. Adv van Riet SC also
argued that the reason why the first agreement
fell through
was
because
off
the fact that the trust had decided to unilaterally increase the
purchase
price by
nearly RS 000
000-00,
whereas
in
the second sales agreement the defendants had reverted to almost the
same purchase
price
as in the first sales agreement.
[63]
Adv van Riet SC also argued that it was
clear from the evidence of both Snyman and Kruger that they knew from
the start that the
consent of all trustees had to be obtained and
this was duly done as was confirmed by Kruger's statement in his
email of 9 May
2016, wherein he confirmed that he had prepared the
sale
"ooreenkomstig die trust se
instuksies"
and that his notation
on the contract that Snyman was
"duly
authorised by a trust resolution"
was indeed correct.
[64]
Mr van Aswegen also argued that the
plaintiff was not
the
effective
cause
of the sale and that the role played
by
van der Schyff on behalf of the plaintiff
was merely the following:
[65.1]
Van der Schyff phoned Snyman to enquire whether
the farm was for sale.
[65.2] Van der Schyff
established what price Snyman wanted for the farm.
[65.3] Van der Schyff met
with Snyman twice to get more detail about the size of the farm,
establish whether the game was included
in the sale, and to discuss
the conditions spelled out in Snyman's email to him.
[65.4]
That
van
der
Schyff
drafted
a
first
generic
offer to purchase on a Remax letterhead.
[65.5] That van der
Schyff later mailed a second generic offer to purchase on a Remax
letterhead to Kruger.
[65.6] That van der
Schyff showed the farm to Dirk Coetzee and Andre Johnson on behalf of
Assmang.
[65]
Adv van Aswegen argued that the material
events took place after van der Schyff's assistance, and occurred
without van der Schyff's
participation, and even without his
knowledge, in view of the fact that finding a suitable farm
for
Snyman
played
a
central
role
in
the
transaction.
[66]
Van
Aswegen argued that it was Kruger who:
[67.1]
Played a prominent role in the
decision-making process concerning the purchase of the farm Scholtz.
[67.2] Made the effort to
move Assmang to increase the purchase price of the farms to ensure
the financial viability of the purchasing
of the farm Scholtz.
[67.3] Cautioned Snyman
in August 2016 to consider selling the farms before the mines
extracted all the groundwater of neighbouring
land.
[67.4] Suggested to
Snyman that he moves to the farm Dekeppi and brokered the deal with
second defendant, that paved the way to
do so.
[67.5] Ascertained that
Assmang was locked in negotiations to purchase the farm Gammasip.
[67.6] Brokered the
purchase of the farm Compton.
[67.7] Consolidated the
farms in accordance with the conditions imposed by the Minister of
Agriculture.
[67.8] Brokered a new
(second) sales agreement deal with Assmang, free from the suspensive
condition that effectively derailed the
first sales agreement.
[68] Adv van Aswegen
contended that it was Kruger's wisdom and business acumen that was
the driving force behind the successful
sale and that these
intervening factors were such as to make van der Schyff's initial
introduction relatively unimportant.
[69]
Adv van Aswegen furthermore contended that
the
merx
that
was sold in terms of the first sale agreement, consisted of 2
separate farms and that when the pieces of land were consolidated,
they took on a new character in law.
The
farms O'Donogue 577 and Watermeyer 576 did not exist anymore and a
new farm Watermeyer 789 was registered, and transferred to
Assmang.
[70]
He also argued that the game identified in
the second sales agreement did not form part of the
merx
sold in terms of the first agreement.
As a result, Mr van Aswegen argued that the
merx
ultimately
sold was substantially different to the one brokered by Remax in
terms of its contract of mandate with Assmang and that
being
so
Remax
is
not
entitled
to
the
commission
that it claims from the defendants.
THE LEGAL POSITION
[71]
As set out in LAWSA:
“
The
service expected of the estate agent is the introduction to the owner
of immovable property of a person who is able, both legally
and
financially, to purchase the property, and who is
willing to purchase, or (if the
agent acts for a would-be buyer of immovable property) to introduce
an owner who is willing to sell
the property
for the price which
the buyer is willing to pay.
An
estate
agent
is
in
a
different
position
from
most
other
persons who render professional services: sometimes he or she acts
for the buyer sometimes
for
the seller or conceivably
for
both buyer and seller as a kind of broker''
[1]
And also:
"The
usual contract between the principal and the estate agent is that the
estate agent is entitled to an agreed or customary
commission if he
or she succeeds in introducing to the principal a person who is able,
both legally and financially, to purchase
and who is willing to
purchase; and if the introduction is the effective cause of the
conclusion of the sale.
No
obligation is imposed on the agent to
do
anything;
the
contract
is
merely
a
promise binding
on
the
principal
to
pay
a
sum
of
money
on
the
happening of a specified event, which involved the rendering of some
service by the agent.''
[2]
[72]
As
set out in
Miller
vs Pam Snyman Eiendoms Konsultante
(Edms)
Bpk)
[3]
a
mandate
may
be
express or tacit, and mandates are very seldom concluded by expressly
using the word mandate by the seller and/or the estate
agent in
question.
[73]
As set out by
Silke:
"The
agent is, in the absence of express agreement to the contrary,
entitled to its commission, where once it is established
that he was
the efficient cause of the sale, notwithstanding that such sale: (1)
May only go through long after his active efforts
have ceased, or (2)
may eventually be concluded directly between the parties without his
participation, or (3) may go through on
different terms and
conditions
from
those on which
the
agent was employed to sell or after termination of the mandate."
[4]
[74]
The
introduction of the eventual purchaser to the property concerned, in
the event of an ultimate sale thereof, even in the case
of the
intervention of another agent, is a strong factor in favour thereof
that the agent
concerned
was
the
efficient
cause of the sale.
[5]
[75]
In
regard
to
the
issue
to
effective
cause
the
following
extract
from
Aida
vs
Lipschitz
is
often quoted:
"If
a new factor intervenes, causing or contributing to the conclusion
of
the sale, and the new
factor
is
not the making
of
the agent, the final decision depends on the result of the further
inquiry
-
viz,
did the new factor outweigh the effect of the introduction
being
more
than
or
equally
conducive
to
the
bringing about of the sale as the introduction was, or was the
introduction still overridingly
the
operative
?"
[6]
[76]
As well as:
"Often
success is only achieved through the intervention of third parties,
and
quite
often
the
agent
himself
is
not a participant
in
the negotiations.It
would,
however,
be
a
mistake
to
say
that
the
occurrence
of
these
financial
obstacles
and
their
removal
without
the
assistance
of
the agent
necessarily
go
to
show
that
agent's
introduction
was
not
affective
in
bringing
about
the
ultimate
sale.Obstacles
in
the
way
of
a sale and
the
fact that one
or
other
or
both
of
the
parties,
by
independent
effort
overcame them, may indeed support the very opposite view.
It
may
be
a measure
of
the
wisdom
and
the
business
acumen
of
the agent in introducing
to
each other a seller who is so keen to sell
and/or
a
purchaser
who
is
so
keen
to buy that
even
formidable
obstacles
in the way of the sale were overcome;or, to
put
it more crudely, the willingness and ability of the purchaser
introduced by the agent was so great that nothing could prevent
the
sale taking place.
In
such a case, the agent would
be
entitled
to
remuneration,
no
matter
whether
he
selected the potential purchaser by change or by foresight.
The
commission
agent
is
paid by
results
and
not
by good intentions or either hard work.''
[7]
[77]
The Supreme Court of Appeal approved of the
approach adopted
in
Aida vs Lipschitz
in the matter
of
Wakefield
Real
Estate
vs
Attree,
supra.
[78]
In
the
matter
of
Manu
et
Manu
v
Nationwide
Airlines,
[8]
the
Supreme
Court
of Appeal held that the
test
in
circumstances
where
there
are
competing
agents is in determining whether the intervening cause was
"sufficiently
weighty"
to
break
the
chain
of
causation between the agent's endeavours and the eventual
transaction. The Supreme Court of Appeal observed that:
"Although
every commission claim depends on its own facts, second agents seldom
seem to succeed; the introduction of a purchaser
by the first agent
remains the effective, or
...
'the
dominant' cause of the sale."
[9]
[79]
Where
an
estate agent has furnished
the
principal
with
a binding offer from a person able to purchase and if a sale to that
person results, the agent has earned his or her commission
and the
principal cannot lawfully avoid paying that commission should the
principal for any reason decide to cancel the sale.
[10]
[80]
Even
if an estate agent does not sign the written sales agreement between
a seller and purchaser which agreement provides for the
payment of
commission to the
estate
agent,
that
agreement
is
binding
on
the
seller and/or principal.
[11]
[81]
As
also
set
out
in
the
case
of
Vanarthday
(Edms)
Bpk vs Roos
where
it was found that where an estate agent introduces a person who
subsequently
purchases,
the agent has earned the commission and it is immaterial
that
the first negotiations
led
to
nothing
and that the negotiations are afterwards renewed
without
further introduction.
[12]
[82]
In
the
event
of
the
court
finding
that
the
trust
did
give
a mandate to the plaintiff, in respect of the alleged lack
of
authority on the side of first defendant in giving the mandate,
the
onus
is
on
the
trustees
to
establish
such
a lack of authority as the aforesaid denial is based on facts
exclusively
within
their knowledge.
[13]
WAS THE PLAINTIFF
MANDATED BY THE TRUST TO SELL THE FARMS?
[83]
The
first
defendant,
Mr
Snyman's
evidence
that
the
only reason why mention was made of the trust paying estate agent
commission
to
the plaintiff,
was because he
believed
that
that
was
the
way
that
it
works,
and
that
no
mandate
was
given
by
the
trust
to
the
plaintiff, is difficult to understand,
especially in view of the correspondence and terms of the first
agreement referred
to
above.
His direct
evidence
was
the following:
"omdat
ek geglo het dit
is
hoe dit
werk.
"
[84]
The question arises as to how the trust
would agree to pay over an amount of almost R2 000 000-00 in estate
agent's commission,
without
having
provided
the
plaintiff
with
a
mandate
to
sell the farm
Watermeyer.
[85]
Adv van Aswegen's argument that van der
Schyff negotiated
his
commission
directly
with
Assmang, which commission would be added to
the purchase price, and thus be paid by Assmang as a result of the
mandate given to
the plaintiff by Assmang, requires scrutiny.
[86]
It is common cause that when van der Schyff
approached the first defendant the first defendant indicated that the
trust required
an amount
of
R6 500-
00 per
hectare in its pocket, in order for the sale to proceed.
[87]
On that basis the first agreement
was drafted with such a purchase price that
the plaintiff would be entitled to claim 7% commission on the
transaction, which would
result
in
the
trust
receiving
an
amount
of
R6
500-00
per hectare in its pocket.
[88]
The first defendant
thereafter
indicated
that
he wanted to
have
an amount
of R6
700-00 in his pocket in order for the sale to proceed, as a result of
which van der Schyff agreed to limit the plaintiff's
estate agent's
commission to an amount of R475-00 per hectare.
[89]
This would, based on the purchase price,
ensure that
the
trust would receive R6 702-00 per hectare, as per
the first defendant's requirements.
[90]
The estate agent's commission limited to
R475-00 per hectare was in fact added to the amount that the trust
wanted
in
its
pocket,
R6 702-00,
and
the
purchase
price remained an amount of R7 200-00 per hectare.
[91]
There were even negotiations on behalf of
the trust, to reach some sort of agreement that the estate agent's
commission would be
divided between the trust and Assmang, i.e. that
half would be paid by Assmang and half by the trust, which proposal
was not acceptable
to Assmang.
[92]
Adv van Aswegen's argument that Assmang was
liable for the payment
of
commission
as a
result of the fact that it was Assmang that had given a mandate to
the plaintiff, loses sight of the fact that the total purchase
price
was R7200-00 per hectare, consisting of a purchase price of R6702-00
per hectare that the trust wanted
in
its pocket,
as
well as a reduced
commission
of R475-00 per hectare that was agreed between the trust and the
plaintiff.
[93]
This result of this was that Assmang would
have paid both
the
purchase
price
required
by
the
trust,
as
well
as the commission agreed to between the trust and the plaintiff,
to
the
trust,
i.e.
the
commission
would indirectly be paid by Assmang.
There can therefore be no question that no
estate agent's commission would therefore be paid in addition to the
purchase price of
R7200-00 as the defendants allege.
[94]
This
agreed
commission
in
the
amount
of
R475-00
per hectare
was
also
expressly
included
in
the
first
sales agreement
when it
was
drafted
by
Kruger
on
behalf
of the
trust.
[95]
What is also clear from the evidence of van
der Schyff, Coetzee,
the
first
defendant,
as well as Kruger,
is that up until the end of July 2016 it
was not only contemplated,
but
also agreed by all the parties
involved,
that the plaintiff would be paid estate agent's commission by the
trust.
[96]
As set out above there were also
discussions between van der Schyff on behalf of the plaintiff and
Kruger on behalf
of
the
trust
to
reduce
the
plaintiff's
commission to
an
amount
of
R475-00
per
hectare,
in
order
to
enable the trust to receive R6 702-00 per hectare after the deduction
of the estate agents commission
agreed
to
between the parties.
It
begs the question as to why these negotiations
would be necessary
if
the
trust did not give a mandate to the plaintiff and agreed to pay it
commission.
[97]
This
is
also
confirmed
by
the
fact
that
Kruger attempted
to
negotiate
that
the
estate
agent
commission be divided between the plaintiff and Assmang; to
which Assmang was not
prepared to
agree.
[98]
In view of the evidence, the correspondence
via email and the provisions of clause 11 of the first sales
agreement,
it
is
difficult
to
understand
on
what
basis the defendants deny the fact that
they had given a mandate
to
the plaintiff,
wherefore
I
am satisfied that the plaintiff had proven
the mandate that was given to the plaintiff
by
the
trust,
as
well
as
the
terms
thereof.
[99]
As set out above the
case law is also the effect that even
though an estate agent is not a party to a written agreement entered
into between parties,
in terms of which a certain estate agent
commission is negotiated on behalf of the estate agent, such an
agreement is nonetheless
enforceable also by the estate agent.
[100]
In
view
of the aforesaid,
the onus
was
on the defendants to show that the mandate that was given to the
plaintiff
and
the
agreement
that
was
entered
into
the first sales agreement was not done by all the
trustees acting jointly.
[101]
At that point in time there were only 2
trustees namely the first and the second defendants, and it is clear
from the evidence that
from the outset the first defendant as well
as
the
plaintiff
as
well
as
Kruger,
were
aware
of
the
fact
that
in
view
of
the
seller
being
a
trust,
all
the trustees had to act jointly.
[102]
The first sales agreement expressly stated
that the first defendant
was
authorised
by
a
resolution
of
the
trustees of the trust to enter into the sales agreement, which
was
clearly
done
on
the
trust's
instruction,
as
well as the fact that the trust had expressly therein agreed to pay
the agreed (and reduced) estate agent's commission of R475-00
per
hectare (in accordance with the mandate
that
the
trust
had
given
to
the
plaintiff).
[103]
This also accords with the correspondence
between the parties,
inter alia:
[103.1] The email from
van der Schyff to Coetzee on the 27 of April 2016 which confirmed
that:
"1.
Die
eienaar
aanvaar
die
aanbod
wat
ju/le
hom
gemaak
het, maar
ook onder
sekere voorwaardes
nl:
1.
Ek moet hom 'n
week kans gee om die aanbod ook met
sy Trustees te bespreek
-
Plaas is in Trust geregistreer"
[103.2] The email from
Kruger to van der Schyff on 9 May 2016 which email expressly stated:
"Aangeheg
is die koopkontrak wat ons opgeste het
ooreenkomstig
die
Trust se instruksies.
[104]
On this basis I find that the defendants
have not discharged the onus of proving the alleged lack of authority
relied on by the
trust, in order to avert the plaintiff's claim for
commission.
WAS
THE
PLAINTIFF
THE
EFFECTIVE
CAUSE
OF
THE SALE?
[105]
There was no reason why the first sales
agreement could
not
be finalised,
and
it
is clear
that the reason why Assmang's executive
committee did not approve and proceed with the first sales agreement,
was due to the fact
that Kruger on behalf of the trust had informed
Assmang that the purchase price had to be increased to an amount of
R30 000 000-00.
[106]
It is clear that the suspensive condition
regarding the approval of the transaction
was not complied
with, due to the trust unilaterally
deciding to increase the
purchase price to R30 000 000-00.
[107]
In respect of the second suspensive
condition, referring to alternative land being available to the trust
to purchase, the contract
expressly made provision for an extension
of
this
time
period,
by
agreement
between the
parties,
to
enable
the
trust
to
find
alternative
land to purchase in order to continue with
its farming operations thereon.
[108]
Less
than
a
month
after
the
first
sales
agreement falling
through,
Kruger
and
the
trust
proceeded
to again resume negotiations with Assmang
in respect of the sale of the properties. (These negotiations were
resumed
on 17
August
2016,
less than
3
weeks
after
the first agreement
fell
through).
If
the
trust had required more time to purchase alternative land, there
appears
to
be
no
reason
why
the
trust
could
not
request an extension in terms of the agreement, which would probably
be agreed to by Assmang.
[109]
In
this
regard
the
email
from
Kruger
to
the
plaintiff
dated
the
17
October
2016,
requires
closer examination with application of the
facts herein, as well as the evidence of the parties.
[110]
The
aforesaid
email
confirms
that
the
purchaser
and
the seller did reach an (second) agreement.
[111]
The
email
also
stated
that
Assmang
confirmed
that
they were not responsible for estate agent commission. This is
clearly in accordance with the whole basis upon which
the
negotiations
proceeded
with
regard
to
the first
sales
agreement,
in
view
of
the
fact
that
the
plaintiff
even
reduced
its
commission,
in
order to
make it
agreeable to the trust.
An
attempt by Kruger to negotiate that Assmang would pay half of the
estate agents commission and the trust the other half, also
clearly
came to
naught
as Assmang
was
not prepared to consider such a proposal.
[112]
The email expressly
states that the sales agreement
that was negotiated by van der Schyff on
behalf of Remax who acted as agent, had come to an end on the 29 of
July 2016.
As set
out above, up until the end of July 2016, there was no anticipated
dispute or difficulty regarding the estate agent commission
that was
due to Remax, and which would be paid by the trust.
[113]
Kruger's email then states that during
consultation with the seller it
was
established that Assmang had already in July 2013 made an offer to
purchase to the seller which offer was not accepted by the
trust.
Clearly nothing
came
of
the offer
to
purchase
which
was made during 2013, and more than three
years had passed since
that
offer
was
made
and
not
accepted
by
the
trust.
This can
clearly have no bearing on the plaintiffs claim for estate agent
commission during 2016.
[114]
The
email
further
confirms
that
upon
further
enquiries
to the seller it
was
confirmed that he (presumably
the
first defendant on behalf of the trust) had never given
any mandate to Remax with an instruction to
sell the farm
Watermeyer.
This allegation
clearly
flies in the face of the whole process of
negotiation, including the first sales agreement in which it
was expressly
confirmed that Remax was the effective
cause of the sale, and that the seller would pay estate agent's
commission in a reduced rate
of R475-00 per hectare.
[115]
The
said
email clearly
states
that
in
view
of the aforesaid it was Kruger's advice to
the seller that the effective cause of the sale was not the
plaintiff.
The
email also expressly states that if the estate agent's commission of
an amount of Rl
800
000-00 was in fact claimed the seller would not have consented to the
sale of the farm.
This
is patently wrong as the seller had effectively
already
on
the 18
th
of May
2016,
accepted the offer to purchase based on the
agreement that the plaintiff
would
limit
its
estate
agent's
commission
to R475-00
per hectare in order to accommodate
the
trust to make the whole transaction financially
viable.
[116]
During
the
evidence
of
Kruger
he
expressly
testified that he had asked the first
defendant whether he had granted
the
plaintiff a
written
mandate.
At no point
in
his evidence did Kruger indicate that he and the first defendant had
discussed or enquired or considered an oral mandate granted
to the
plaintiff by the first defendant on behalf of the trust.
[117]
It
is
clear that up to and until the 29
th
of July 2016, the trust had no difficulty or objection to paying
estate agent's commission to the plaintiff.
This position however changed after the
advice of Kruger, to the
effect
that
the
plaintiff
was
not
entitled
to
commission
on the transaction.
[118]
In his evidence Kruger persisted with his
view that the plaintiff was not entitled to estate agent commission.
[119]
No mention is made in the correspondence,
the defendant's plea and/or the defendant's affidavit in the summary
judgement application,
of the allegation that Kruger
was
indeed
the
effective
cause
of
the
second
sales agreement, and that Kruger's efforts had
overcome any obstacles in respect of the
first sales agreement, to such an extent that Kruger's intervention
was
"sufficiently
weighty"
to
break
the chain
of
causation between the plaintiff's endeavours and the eventual
transaction,
and
that
Kruger
was
in
fact entitled to estate agent's commission.
[120]
The second sales agreement also fails to
mention that Kruger would be entitled to or be paid estate agent's
commission in respect
of the transaction.
On the contrary, the agreement expressly
stated in clause 8 thereof,
that
both
the
seller
and
the
purchaser
would not be liable to pay a professional
fee to any estate
agent
as a result of the conclusion
of
the transaction.
[121]
Likewise the defendants and Kruger failed
to disclose that Kruger had received any commission on the
transaction, despite being
expressly asked this information
in
the
plaintiff's
request
for
further particulars
as
well
as
the
plaintiff's
rule
35(3)
notice.
The defendants failed to disclose any such information and failed to
discover any documentation pertaining to agent commission
being paid
to Kruger.
[122]
Even in his evidence Kruger was unwilling
to disclose that
he
had earned
commission
on the sale
of
the farms,
and in
his evidence
testified
that
his
firm was paid an amount of RS00 000-00, in
respect of both the divorce proceedings conducted on behalf of the
first defendant,
as
well as the consolidation
of
the properties,
the
drafting
of
the
sales
agreements
and the negotiations conducted therein.
[123]
This was referred to by Kruger as a
"Boeresom"
with no mention
of
any
part
of
it
consisting
of commission
on
the
sale
of
the
property.
Only
during
cross
examination did it come to light that of the amount of R800 000-00
only an amount of R300 000-00 was paid to
the
defendant's
attorneys
of
record
(the
firm
of
which Kruger is a director) and that an amount of R500 000-00 was in
fact paid to Kruger in his personal capacity.
[124]
If the objective facts are viewed in
consideration of the legal
position
as
set
out
above,
Kruger's
efforts
were not of such a nature that it overcame
insurmountable obstacles to the first sale proceeding.
[125]
During Kruger's evidence he testified that
he simply received
a
"professionele
fooi"
in
an
amount
of
R800 000-00,
in
an attempt
to not
disclose
the
fact that he was in fact paid an estate
agent's commission of R500 000-00.
[126]
This must be taken in context to Kruger's
reply to the Rule 35(3) notice where he expressly indicated that the
documentation
pertaining
to
commission
payable
on
the second sales agreement was irrelevant
to these proceedings.
WAS THE
MERX
SOLD IN TERMS OF THE FIRST AND SECOND SALE AGREEMENTS THE SAME OR
SUBSTANTIALLY SIMILAR?
[127]
The farms Watermeyer 576 and O'Donogue 577
were consolidated into the farm Watermeyer 789, which in essence
remained the same properties
as was involved in the first sales
agreement.
[128]
A
small
portion
of
the
farm
was
subdivided
and
sold
to a neighbouring farmer, although in
essence the two properties prior to consolidation and the one
property after consolidation
relates to the same immovable property.
[129]
This is also confirmed by the fact that the
farms Watermeyer and O,Donogue consist of 2708.9495 hectares
and
810.7174
hectares
respectively,
totalling
3
519.6669
hectares,
whereas
the
farm
Watermeyer
789
consist
of
3517.7284
hectares.
[130]
Also the argument that the sale of certain
game also changed the whole tenor of the first sales agreement, is
clearly unfounded
as
from the initial discussions and negotiations between van der Schyff
and the first defendant, mention was already made that the
sale of
the farms may include the sale of some of the game on the farms.
This is therefore not a novel new part of
the second agreement, but was already contemplated and considered
even during the initial
negotiations.
CONCLUSION
[131]
Wherefore I
make
the following order:
Judgment
is granted for the plaintiff against the
defendants for-:
1
Payment
of
the amount
of
R1
904
849-93;
[1]
Lawsa,
Volume 18 2
nd
Edition, Estate Agents parl Low vs Shedden (2001)2 All SA 171
(c)
at lSOl-181B
[2]
Lawsa
Volume 18 2
nd
Edition, Estate Agents par 3
[3]
Miller
v Pam Snyman Eiendoms Konsultante (Edms) Beperk 2001
(1)
SA 313(C)
[4]
Silke:
The Law of Agency (3
rd
edition) article 56 page 395
[5]
Pretorius
vs Meyer 1975 (3) 279 (T)
Aida Real Estate vs
Lipschitz
1971 (3) SA 871
W)
Wakefields
Real Estate (Pty) Ltd vs Attree & Others 2011(6) 557 (SCA)
[6]
Aida
vs Lipschitz supra at 873H-874A
[7]
Aida
vs Lipschitz supra at 875F
[8]
Manu
et Manu vs Nationwide Airlines (Pty) Ltd 2007(2) SA 512 SCA
[9]
Manu
et Manu vs Nationwide Airlines (Pty) Ltd 2007(2) SA 512 SCA at
paragraph
18
[10]
Glickman
vs Landau & Co
1944 TPD 261
at 268
Watson
vs Fintrust Properties (Pty) Ltd (1987]
2 All SA 62
(C} also
reported as
1987 (2) SA 739
(C) at 752 1-J
[11]
Baker
vs Afrikaanse Nasionale Afslaers
en
Agentskap
Mpy
(Edms)
Bpk
1951(3) SA 371
(A)
375G tot
376H
also reported as (1951]
3 All SA 306
(A)
Tyrone Selmon Properties
(Pty) Ltd vs Phindana Properties 112 (Pty) Ltd (2006)1 All SA 54S(C)
at paragraph 33
[12]
Vanarthday
vs Roos 1979 (4) SA (aa) at
llfF-G
also reported as (1979) 2 All SA 315 (AA)
[13]
Moraitis
Investments (Pty) Ltd & Others vs Montie Dairy (Ptd) Ltd
2017
(5) SA 509
(SCA) at
paragraph
21, 33 and 35, also reported as
[2017] 3 All SA 485
(SCA)