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[2021] ZANCHC 42
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Karoo Wilddienste (Pty) Ltd v Griqwaland West Cooperative Limited (141/2016) [2021] ZANCHC 42 (17 September 2021)
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTHERN
CAPE PROVINCIAL 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
WILDDIENSTE (PTY)
LTD
Plaintiff
and
GRIQWALAND
WEST COOPERATIVE LIMITED
Defendant
and
G.D.
ANDRAG
1
st
Third Party
M.
LOUW
2
nd
Third Party
Coram:
Lever J
JUDGMENT
Lever
J
1.
This judgment deals with an application for
absolution from the instance at the close of the plaintiff’s
case. For the sake
of convenience and to avoid confusion the parties
will be referred to as in the summons. The applicant for absolution,
Griqwaland
West Cooperative Limited, will be referred to as the
defendant or where appropriate GWK. The respondent, Karoo Wilddienste
(Pty)
Ltd, will be referred to as the plaintiff or Karoo Wilddienste.
2.
The litigation arises out of an auction
conducted by the defendant at the behest of the plaintiff on the
plaintiff’s property,
on the 16 May 2015. The auction involved
the sale of certain wild game. The wild game on auction were divided
into two categories.
The first being ‘boma game’, which
were sold, paid for, and essentially delivered after the fall of the
hammer. The
second category being ‘catalogue’ game. The
catalogue game was sold at the fall of the hammer, but a 25% deposit
was
payable on the day of the sale and delivery was to take place
later in the year. There were other terms alleged in the pleadings
and in the plaintiff’s evidence, inter alia that an invoice was
to be delivered to the purchaser of each respective lot of
catalogue
game within a week of the sale. These additional terms are in
dispute.
3.
The present litigation involves two
different lots of catalogue game that the defendant sold on behalf of
the plaintiff at the said
auction. The first lot that forms the basis
of the current dispute was sold to the second third party. This lot
consisted of 5
bontebokke which were sold at auction to the second
third party. In respect of this lot the second third party’s
winning
bid was in the amount of R650,000.00 (six hundred and fifty
thousand Rand). The second lot that also forms part of the current
dispute consisted of a female black impala that was advertised as
being a certain age at the time of the sale and would be pregnant
at
the time of delivery. This lot was sold to the first third party for
the amount of R450,000.00 (four hundred and fifty thousand
Rand).
Collectively, I shall refer to the first and second third parties as
the purchasers.
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 arising from their
respective winning
bids at the said auction. The reason why the third
parties’ respective defaults are not relevant at this stage is
because
their liability is conditional upon the defendant being held
liable to the plaintiff. In those circumstances, if there is no basis
to hold the defendant liable to the plaintiff, there is also then no
basis to hold the third parties liable.
5.
Flowing from the purchasers not fulfilling
their contractual obligations respectively incurred by them, the
plaintiff sued GWK (the
defendant) for ‘specific performance’
in respect of both lots of catalogue game referred to above. It is
central in
determining the present application for absolution from
the instance to remember and not lose sight of the fact that the
defendant
was the auctioneer. In essence and in substance the
plaintiff’s agent. To the extent necessary, the nature of the
contractual
relationship between the various parties involved in the
relevant auction will be considered below.
6.
Having regard to the application by the
defendant and the particular arguments raised in support thereof by
Mr Gilliland, who appeared
for the defendant, it is necessary to
quote the material parts of the Particulars of Claim verbatim. The
said particulars read:
“
4.
Op 16 Mei 2015 en te Jakhalsdans, Loxton, en ingevolge ʼn
mondelinge ooreenkoms aangegaan tussen
die Eiser, behoorlik
verteenwoordig deur sy direkteur Nicola Burgerd van der Westhuizen,
en die verweerder, behoorlik verteenwoordig
deur sy afslaer, Deon
Klopper, het die partye as volg ooreengekom:
4.1 Die
Verweerder, deur sy afslaer, Deon Klopper, op die veiling verskeie
wildsoorte namens Eiser te koop sal
aanbied;
4.2 Die
Verweerder binne een week na die veiling verkoopsfakture sal uitmaak
en lewer aan alle persone wat op
die voormelde veiling wild gekoop
het;
4.3 Die
koopprys aldus ingevorder deur die Verweerder, na tender van lewering
van wild voormeld in paragrawe 6.1
en 6.2 hieronder, aan Eiser sal
oorbetaal.
5.
Die Eiser het al sy verpligtinge uit hoofde van die ooreenkoms tussen
hom en die Verweerder
nagekom.
6.
Die Verweerder het versuim om sy verpligtinge uit hoofde van die
vormelde ooreenkoms na te
kom deurdat hy versuim het om binne ʼn
week na die vormelde veiling, welke veiling plaasgevind het op 16 Mei
2015 te die plaas
Jakhalsdans, die verkoopsfakture te lewer aan die
kopers van die volgende wild, welke op die veiling verkoop is vir die
bedrae
soos hieronder aangedui, en om die betaling van 25% van die
koopsomme aldus verskuldig, in te vorder:
6.1 X5
bontebokke
R650,000.00
6.2 X1
swart rooibok
R450,000.00
7.
Strydig met die bepalings van die ooreenkoms voormeld, het Verweerder
nagelaat en of versuim
om;
7.1 die
depositos van 25% van die bedrae uiteengesit in paragrawe 6.1 en 6.2
hierbo verwys na, met afloop van
die veiling in te vorder.
7.2 die
verkoopsfakture voormeld aan die kopers van die wild verwys na
in paragrawe 6.1 en 6.2 hierbo te
lewer.
7.3 die
balans van die koopprys van die wild verwys na in paragrawe 6.1 en
6.2 hierbo uiteengesit teen tender
van lewering, in te vorder en aan
die eiser oor te betaal.
8.
In die vooropstelling is die Verweerder aanspreeklik teenoor die
Eiser vir die betaaling
van die bedrag van R1,100,000.00 (Een Miljoen
Een Honderd Duisend Rand), maar nieteenstande aanmaning daartoe
weier en/of
versuim die Verweerder om daardie, of enige ander
bedrag aan die Eiser te betaal.
WEESHALWE eis Eiser van
Verweerder as volg:
1.
Betaaling van die bedrag van R1,100,000.00;
2.
Rente op bovermelde bedrag a tempore morae;
3.
Teen betaaling van die bedrag plus rente
voormeld, tender Eiser onmiddellik lewering van die wild verwys na
6.1 en 6.2 hierbo;
4.
Koste van die geding;
5.
Sodanige verdere en/of alternatiewe
regshulp waarop Eiser geregtig is.”
7.
The above quotation represents the material
parts of the plaintiff’s Particulars of Claim after certain
minor amendments were
sought and granted at the commencement of the
trial.
8.
It is clear from the Particulars of Claim
set out above that plaintiff does not seek contractual damages from
the defendant. It
is further clear that plaintiff does not sue
defendant in order to seek defendant’s assistance in suing the
purchasers to
fulfil their obligations arising from the auction.
Plaintiff in the Particulars of Claim does not seek to compel
defendant to sue
the purchasers to perform their respective
obligations in terms of the sale concluded at the auction concerned.
Nor does plaintiff
seek a re-cession of the right to claim the
purchase price that plaintiff may have ceded to the defendant, and
which is reflected
in the general conditions of sale. Plaintiff seeks
specific performance from the defendant in respect of the obligations
of the
purchasers incurred at the relevant auction. The Particulars
of Claim quoted above allow no other reasonable interpretation.
9.
In the context of the present application
for absolution from the instance and in the special circumstances of
this case, two questions
arise. Firstly, has a complete or proper
cause of action been pleaded by the plaintiff in order to hold
defendant liable for the
obligations of the purchasers. Stated
differently, is there in fact a case for defendant to answer on the
pleadings in respect
of it being liable to the plaintiff for the
obligations of the purchasers. Secondly, if there is in fact a case
for the defendant
to answer on the pleadings, is the evidence led on
behalf of the plaintiff, as it stands at the close of the plaintiff’s
case of such a nature that a court applying its mind reasonably to
such evidence might find for the plaintiff.
10.
Absolution from the instance at the close
of the plaintiff’s case is provided for by the provisions of
Rule 39(6) of the Uniform
Rules of Court (the Rule/s). The said rule
reads as follows:
“
39(6)
At the close of the case for the plaintiff, the defendant may apply
for absolution from the instance, in which event the defendant or one
advocate on his behalf may address the court and the plaintiff
or one
advocate on his behalf may reply. The defendant or his advocate may
thereupon reply on any matter arising out of the address
of the
plaintiff or his advocate.”
11.
The
test to be applied in an application for absolution from the instance
at the close of the plaintiff’s case has been set
out by Harms
JA in the matter of
GORDON
LLOYD PAGE & ASSOCIATES v RIVIERA AND ANOTHER
[1]
as follows:
“
[2]
The test for absolution to be applied by a trial court at the end of
the plaintiff’s case was formulated
in
Claude
Neon Lights (SA) Ltd v Daniel
1976 (4)
SA 403
(A) at 409G-H in these terms:
‘…
(W)hen
absolution from the instance is sought at the close of the
plaintiff’s case, the test to be applied is not whether
the
evidence led by the plaintiff establishes what would finally be
required to be established, but whether there is evidence upon
which
a Court, applying its mind reasonably to the evidence, could or might
(not should or ought to) find for the plaintiff. (
Gascoyne
v Paul and Hunter
1917 TPD 170
at 173;
Ruto Flour Mills (Pty) Ltd v Adelson (2)
1958 (4) SA 307
(T).)’
This implies that a
plaintiff has to make out a
prima facie
case – in the
sense that there is evidence relating to all elements of the claim –
to survive absolution because without
such evidence no court could
find for the plaintiff
(Marine and Trade Insurance Co Ltd v Van
der Schyff
1972 (1) SA 26
(A) at 37G-38A; Schmidt
Bewysreg
4
th
ed at 91-2). As far as inferences from the evidence
are concerned, the inference relied upon by the plaintiff must be a
reasonable
one not the only reasonable one
Schmidt
at 93). The
test has from time to time been formulated in different terms,
especially it has been said that the court must consider
whether
there is ‘evidence upon which a reasonable man might find for
the plaintiff’
(Gascoyne (loc cit)) –
a test which
had its origin in jury trials when the ‘reasonable man’
was a reasonable member of the jury
(Ruto Flour Mills)
. Such a
formulation tends to cloud the issue. The Court ought not to be
concerned with what someone else might think; it should
rather be
concerned with its own judgment and not that of another ‘reasonable’
person or court. Having said this, absolution
at the end of a
plaintiff’s case, in the ordinary course of events, will
nevertheless be granted sparingly but when the occasion
arises, a
court should order it in the interests of justice.”
12.
The
approach to the test for absolution set out above was specifically
reaffirmed by the Supreme Court of Appeal (SCA) in the matter
of
DE
KLERK v ABSA BANK LIMITED AND OTHERS
[2]
.
13.
In
the context of an application for absolution from the instance at the
close of the plaintiff’s case, the plaintiff must
establish a
prima
facie
case in the sense that it must adduce evidence on all of the elements
of its claim. This is set out by Harms JA in the
GORDON
LLOYD PAGE
[3]
judgment. The relevant passage is included in the quote set out above
and in the judgment itself is to be found at page 92G-H of
that
judgment.
14.
A
prima
facie
case in the sense set out above, is to be distinguished from the
manner in which the phrase ‘a
prima
facie
case’ is more commonly used. In this latter case the phrase
means if the party upon whom the onus rested adduces evidence
which
calls for an answer from the opposing party, such party has
established a
prima
facie
case. If that evidence is not answered by the opposing party, then
the
prima
facie
case becomes conclusive proof and the party upon whom the onus rested
has discharged such onus and is entitled to judgment in its
favour on
the basis of such unchallenged evidence.
[4]
15.
The
respondent opposing an application for absolution does not have to
establish a
prima
facie
case in this latter sense. Such respondent, in order to avoid
absolution only has to adduce evidence on every element of its case.
Unless such evidence is inherently unacceptable, it should be
accepted as true in an application for absolution at the close of
the
plaintiff’s case.
[5]
16.
Mr Gilliland on behalf of the defendant
argued that absolution should be granted for the following reasons:
16.1.
That
ordinarily when a seller engages an auctioneer to conduct an auction,
different contractual relationships come into being between
three
different parties resulting in three distinct contracts at different
stages of the auctioneer in fact conducting the contemplated
auction.
In making this submission Mr Gilliland relied on the authority of
SPRINGFIELD
OMNIBUS SERVICE DURBAN v PETER MASKELL AUCTION CC and
ANOTHER
[6]
.
16.2.
The first agreement arises from the
appointment by the seller of the auctioneer. In terms of this
contract the auctioneer acts as
the seller’s agent.
16.3.
The second contract arises between the
auctioneer and the prospective buyer. This contract usually comes
into existence when a person
registers as a buyer for the relevant
auction and sometimes when a potential buyer makes a bid at the
relevant auction. This contract
is sometimes referred to as the
‘rules of the game’. Essentially, the rules under which
the auction would be conducted
which the prospective buyers agree to
in one of the ways referred to above.
16.4.
The third contract is between the seller
and the buyer. This contract comes into existence when a bidder at
the respective auction
has a sale awarded to her/him/it at the fall
of the hammer. In other words, the auctioneer, as the seller’s
agent, on the
fall of the hammer has awarded the relevant sale to the
particular buyer who has made the highest acceptable bid, which
results
in a contract between the seller and the buyer.
16.5.
It is not normal or customary for the
auctioneer, being the seller’s agent, to take on the
obligations of the buyer to the
seller unless there is a special
provision to that effect in the agency agreement. It would be
necessary to plead such special
contractual provision if it existed
in the agency agreement between the seller and the auctioneer. This
is so because it would
form the factual and legal basis for a claim
of specific performance against the auctioneer for performance of the
obligations
of the buyer to the seller.
16.6.
In the present case, the plaintiff has
pleaded no such contractual basis for its claim of specific
performance for the defendant
to perform the obligations of the
respective buyers relevant to plaintiff’s claim.
16.7.
In other words, there is no factual or
contractual basis set out in plaintiff’s Particulars of Claim
that could form the factual
and legal basis of plaintiff’s
claim that the defendant should perform the obligations of the
respective buyers to the plaintiff.
16.8.
It is submitted that in these circumstances
it is not possible to say that the court reasonably assessing the
evidence at the close
of the plaintiff’s case might or could
find for the plaintiff.
16.9.
Mr Van den Bergh the first witness for the
plaintiff testified that the defendant’s own auctioneer, Mr
Klopper, said on a
number of occasions that the defendant ought to
pay the plaintiff.
16.10.
Mr Van der Westhuizen the second witness
for the plaintiff testified that he understood that the failure of
defendant to collect
the 25% deposit on the day of the sale and the
failure to deliver the relevant invoices to the said buyers within
one week of the
sale meant that plaintiff was entitled to claim that
the defendant fulfil the obligations of the respective purchasers. Mr
Van
der Westhuizen also testified that on occasions Mr Klopper also
told him that the defendant should pay the plaintiff.
16.11.
Mr Gilliland submitted that this was the
high watermark of the plaintiff’s evidence in support of its
claim against the defendant.
That this fell short of being evidence
of plaintiff’s claim.
16.12.
Mr Gilliland further submitted that this is
not a case where, as a result of its plea or for any other reason the
onus on any aspect
of the case rested on the defendant. In his
submission, the onus rests on and remains that of the plaintiff.
16.13.
Mr Gilliland also spent a great deal of
time and effort in dealing with the ownership clauses and their legal
effect in both the
conditions of sale agreement and the liaison
agreement. The defendant had pleaded that these two agreements formed
part of the
agency agreement it had entered into with the plaintiff.
However, having regard to Mr Gagiano’s express disavowal on
behalf
of the plaintiff, of any reliance on the ownership status of
the game concerned after the auction, and Mr Gagiano’s
assertion
that the plaintiff’s claim is for specific
performance, pure and simple, it is not necessary to consider the
submissions
on the effect of the ownership clauses in the said
agreements.
16.14.
Mr Gilliland submitted that the defendant
was only obliged to pay the plaintiff if it collected the relevant
amounts from the prospective
purchasers. This, he submits, is what
the plaintiff actually claimed in paragraph 4.3 of its Particulars of
Claim. The said paragraph
of plaintiff’s Particulars of Claim
has been quoted verbatim above. By extension, Mr Gilliland submitted
that as the defendant
had not collected any money from the respective
purchasers, it was not obliged to pay the plaintiff as claimed or at
all. Mr Gilliland
also submitted that clause 4.3 of the Particulars
of Claim cannot be interpreted to mean that it was a claim for
defendant to collect
the balance of the purchase price or that there
was an obligation on the defendant to stand good for the purchase
price of the
respective lots sold on auction.
17.
Mr Gagiano on behalf of the plaintiff
argued that absolution should be refused for the following reasons:
17.1.
The provisions of the ‘Conditions of
Sale’, an agreement in the form of a standard form agreement
defendant uses for
auctions and the ‘liaison agreement’
pleaded by defendant as part of its ‘agency’ agreement
with plaintiff,
supports the plaintiff’s case. Defendant
pleaded that the said ‘agency’ agreement was partly
written and partly
oral.
17.2.
Mr Gagiano submitted that the defendant
pleaded these agreements and their terms, and that plaintiff had
accepted that as a correct
reflection of the agreement that existed
between them.
17.3.
Mr Gagiano submitted that the plaintiff
relied on these terms and specifically clause 5 of the ‘Conditions
of Sale’
agreement assists plaintiff’s case. The said
clause 5 reads as follows:
“
5.
All goods and livestock (hereinafter referred to as the “assets”)
are sold
by the Auctioneer as agent on behalf of the seller, who
authorises the auctioneer to collect the purchase price from the
buyer
and the seller hereby cedes to the auctioneer all the seller’s
rights, title and interest in and to its claim for payment
of the
purchase price against the purchaser which session (sic) the
Auctioneer hereby accepts.”
17.4.
Mr Gagiano maintains that because of the
cession contained in clause 5 of the conditions of sale agreement,
the plaintiff has no
other remedy but to sue the defendant for
specific performance.
17.5.
Mr Gagiano submits that the evidence of Mr
Van den Bergh and Mr Van der Westhuizen in relation to both Mr
Kloppers alleged point
of view vis-a-vie the liability of the
defendant to the plaintiff and the evidence of Mr Van der
Westhuizen’s understanding
of the effect of the terms relating
to the 25% deposit and the provision of the invoice within one week
of the auction put in place
a factual case that the defendant must
answer. That in such circumstances absolution must be refused.
17.6.
On behalf of the plaintiff, Mr Gagiano
submitted that, plaintiff’s case is for specific performance,
defendant had the obligation
to make payment to the plaintiff in
September 2015. Defendant failed to make good on that obligation.
Accordingly, he submitted
the plaintiff was entitled to specific
performance against the defendant.
17.7.
Mr Gagiano submitted that plaintiff did not
have to plead its remedies. He submitted that if there is a breach of
the agreement
the remedies follow as a matter of law. He submitted
that the plaintiff’s Particulars of Claim have laid a
sufficient basis
for its claim of specific performance.
17.8.
Mr Gagiano referred the court to a request
for Particulars for Trial lodged by the first third party and more
particularly at paragraphs
3.7 to 3.11 of such request. In such
request the first third party asked where, by whom on behalf of
plaintiff/defendant, to whom
on behalf of the first third party, and
subject to what terms and conditions, was delivery offered but
refused by the first third
party. He then referred the court to the
defendant’s response thereto contained in paragraphs 10.1 to
10.3 of such response.
In the said response the defendant informs the
first third party that a Mr H Bosman on behalf of defendant tried to
contact the
first third party to arrange such delivery. That first
third party deflected and stated he would contact plaintiff himself
to arrange
delivery. That this occurred during or about September
2015. That the terms of delivery were that 25% was to have been paid
on
the day of the auction and that the remainder of the purchase
price was to be paid on delivery. In interrogating the defendant’s
response, Mr Gagiano asked if the defendant denies its obligation to
effect delivery or make payment of the purchase price why
would Mr
Bosman go to the trouble of trying to facilitate delivery of the game
concerned.
17.9.
Mr Gagiano then referred to a passage in
the transcript of the evidence where Mr Gilliland was cross-examining
Mr Van der Westhuizen
and Mr Gilliland put to Mr Van der Westhuizen:
“
Mr
Bosman will testify that after four or so attempts to arrange
delivery or capture and delivery, he told you to sort it out with
Mr
Andrag and Mr Louw and to let him know when delivery can take place
so that the transaction can be finalised.”
Mr Gagiano argued that
this position put to Mr Van der Westhuizen by Mr Gilliland contrasts
and conflicts with the submission by
Mr Gilliland that the defendant
was merely the agent.
18.
It is relevant to note at this stage that
the evidence adduced by the plaintiff differed from what was pleaded.
However, for the
purposes of the absolution application and the view
I take of such application, it is not necessary for me to consider
and deal
with these differences.
19.
It is convenient to deal with the
plaintiff’s contentions opposing absolution first. The first
submission to be considered
is set out in paragraphs 17.1 to 17.4
above. In short that the cession in the ‘Conditions of Sale’
contract effectively
meant that the plaintiff had no other remedy but
to sue the defendant for specific performance.
20.
In reply, Mr Gilliland dealt with the
argument based on the cession on the following basis: Firstly, the
plaintiff could not rely
on the cession agreement because the
agreement pleaded was between the auctioneer and the buyer.; The
cession was not pleaded by
the plaintiff.; There was no evidence that
a cession had taken place. In support of this submission Mr Gilliland
submitted that
when he asked Mr Van der Westhuizen if the scenario of
a buyer walking away from the sale agreement had been specifically
discussed,
this would have been the time for Mr Van der Westhuizen to
have raised the cession. Instead, Mr Van der Westhuizen simply
answered
that such scenario was not discussed.
21.
At
first blush, I was tempted to simply dismiss Mr Gilliland’s
submission on the cession out of hand. However, a cession does
not
require any formalities and the person entitled to those rights must
clearly intend to cede them and must also do everything
necessary to
give effect to that intention.
[7]
There is no evidence to that effect from either of the plaintiff’s
witnesses.
22.
Mr Gilliland’s submissions on the
cession might come into play at the close of the defendant’s
case. In my view in considering
the application for absolution at the
close of the plaintiff’s case and in the special circumstances
of this case, it would
be more appropriate to assume to the benefit
of the plaintiff that such cession had in fact taken place and to
deal with the application
for absolution on that basis.
23.
Accordingly, for present purposes, the
cession contemplated in terms of clause 5 of the Conditions of Sale
will be assumed. It is
clear from the terms of clause 5 quoted above
that the plaintiff would have ceded its right to pursue the
individual purchasers
for their obligations to pay the purchase
price.
24.
Such cession would deprive the plaintiff of
the right to sue the said purchasers. Mr Gagiano is wrong when he
submits that as a
consequence of the cession the plaintiff has no
remedy. The plaintiff has at least 3 ready remedies.
25.
Firstly, it could sue defendant for
contractual damages that might have flowed from its default in
collecting the 25% deposit on
the day of the sale and its default of
not delivering to the respective purchasers the relevant invoice
within 1 week of the sale.
In fact, at one point the plaintiff had
amended its claim to one of contractual damages then inexplicably
changed it back to a
claim for specific performance against the
defendant for the performance of the obligations of the respective
buyers to the seller
without any contractual or legal basis for such
claim.
26.
Secondly, it could sue defendant for a
mandamus
compelling defendant to assist plaintiff to sue the respective
purchasers to fulfil their obligations.
27.
Thirdly, plaintiff could sue the defendant
to re-cede the relevant right to pursue the purchasers for the
purchase price back to
the plaintiff.
28.
More significantly, the fact that plaintiff
may have ceded the right to claim payment from the respective
purchasers to the defendant,
this does not, in and of itself and on
the basis of the terms of the said clause 5 set out above, create a
right to claim such
payment from the defendant on the basis of
‘specific performance’. Without more, no such right
exists.
29.
The next argument relied upon by Mr Gagiano
is set out in paragraph 17.5 above, being that Mr Van den Bergh and
Mr Van der Westhuizen’s
evidence of the alleged statements of
Mr Klopper, the defendant’s auctioneer. The short answer to
this is that without an
underlying contractual basis being pleaded
for a claim for specific performance by the defendant on an
obligation that rests on
the respective purchasers, the allegations
of what Mr Klopper may or may not have said amount to nothing more
than an opinion without
any discernible basis in fact or in law to
hold such opinion. In short, such assertions cannot be evidence of
anything in the context
of the claim as pleaded read with the
evidence at the close of the plaintiff’s case. Without a
factual or legal basis being
established in either the particulars of
claim or the evidence, such alleged opinion is simply untenable and
inherently unacceptable
as evidence, even at the close of plaintiff’s
case.
30.
What
Mr Klopper is alleged to have said can only be relevant if a factual
or legal basis was pleaded for the defendant to stand
in for the
obligations of the purchasers, as was the case in
MARCUS
v STAMPER and ZOUTENDIJK
[8]
,
where the auctioneer warranted the performance of the purchaser. The
probable reason why such warranty is not the normal practice
in
auctions is apparent from the facts of MARCUS’ case.
31.
The next argument raised on behalf of the
plaintiff is set out in paragraph 17.6 above. This is to the effect
that plaintiff’s
claim is for specific performance. That
defendant was to pay in September 2015. Defendant failed to do so and
therefore plaintiff
can claim specific performance from defendant.
Firstly, Mr Gagiano misstates the facts when he says defendant was
obliged to pay
in September 2015. On plaintiff’s own version
and paragraph 4.3, as read with paragraph 7.1 and 7.3 of its
Particulars of
Claim, defendant was obliged to facilitate collection
of the relevant monies and delivery of the game concerned to the
purchasers
and in circumstances where delivery and payment were
assured, make payment to the plaintiff.
32.
Plaintiff not only misstates the facts but
also conflates the three different contracts that come into existence
when an auctioneer
is appointed to run an auction on behalf of the
seller. In short, plaintiff has not pleaded or established a claim
for the defendant
to perform the obligations of the respective
purchasers.
33.
The next argument to be dealt with is set
out in paragraph 17.7 above. Here Mr Gagiano argues that plaintiff’s
particulars
of claim set out a sufficient basis for its claim. That
plaintiff does not have to plead its remedies. That plaintiff need
only
plead the breach and the remedies follow as a matter of law.
34.
Again, plaintiff conflates the 3 agreements
that come into being when an auctioneer is appointed to and runs an
auction. Plaintiff
has to plead a contractual basis for the defendant
to be held liable to stand good for the obligations of the respective
purchasers,
this the plaintiff has failed to do. Accordingly, the
plaintiff’s argument on this issue has no substance.
35.
The plaintiff’s arguments set out in
paragraphs 17.8 and 17.9 above run together. The relevant statements
attributed to Mr
Bosman are not evidence that the relationship was
something more than just an agreement of agency. Mr Bosman’s
alleged statements
have to be assessed in the context that his
efforts were consistent with an agent trying to deliver the
pre-requisite circumstances
in which it would be entitled to its
commission, nothing more.
36.
Turning now to the arguments raised by Mr
Gilliland on behalf of the defendant.
37.
The first argument set out by the defendant
appears from paragraphs 16.1 to 16.8 above. In brief this argument
relates to the 3
contracts that come into being when an auctioneer is
appointed to run an auction. The significance of those separate and
distinct
contracts. The fact that ordinarily the auctioneer does not
take on the obligations of the purchaser in the absence of a special
agreement to that effect.
38.
No such agreement has been pleaded. In
effect such an agreement, if it existed, would amount to a warranty
by the auctioneer that
the purchaser will perform in respect of
its/his/her obligations. There is no evidence at all of such a term
being part of the
agreement of agency between the plaintiff and the
defendant relating to the conduct of such auction. Nor is there any
evidence
of any other term to the same effect being agreed to by the
plaintiff and the defendant.
39.
The issues raised in paragraphs 16.9 and
16.11 run together. The evidence of what Mr Klopper is alleged to
have said has already
been dealt with. It does not assist the
plaintiff in avoiding absolution from the instance in the
circumstances of this case. In
the circumstances of this case even if
Mr Klopper did make the statement he is alleged to have made, there
is simply no plausible
or credible basis to consider the alleged
statements as evidence in support of a claim that plaintiff has
failed to allege or establish
in both the pleadings and the
evidence.
40.
The issue of the failure to collect the 25%
deposit on the day of the auction and the failure to deliver the
relevant invoices within
one week from the sale and more specifically
the fact that Mr Van der Westhuizen claims that he understood from
those two terms
that the defendant has an obligation to stand good
for the contractual obligations of the purchasers, is just so far
fetched and
unreasonable in all of the circumstances of this case
that it can simply be treated as unreasonable, untenable and
inherently unacceptable.
It cannot form the basis for successfully
opposing an application for absolution from the instance at the close
of the plaintiff’s
case.
41.
In my view Mr Gilliland is correct, there
is an essential averment missing from its claim as pleaded in 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.
There has also been no acceptable
evidence that would establish a basis for holding the defendant
liable in such circumstances.
42.
In short plaintiff has not adduced evidence
on all aspects of its claim. It has not pleaded a factual or legal
basis for the requisite
special term being part of its agency
agreement with the defendant. Plaintiff has adduced no evidence to
that effect. Accordingly,
I cannot find that there is evidence in
respect of which I might find for the plaintiff. In these
circumstances, it is appropriate
that I uphold the defendant’s
application for absolution from the instance at the close of the
plaintiff’s case.
43.
In regard to the costs of the application
for absolution from the instance, including the costs of the action
not already determined,
I considered, due to the failure of plaintiff
to appropriately plead its case to award costs as on exception. Such
approach was
not considered by either party when the matter was
argued before me. I then had regard to the manner in which Mr
Gilliland comprehensively
dealt with the question on the issue of
change of ownership as provided for in the written parts of the
agreement. It occurred
to me that in all probability Mr Gilliland on
behalf of the defendant was being cautious as a result of his
concerns relating to
the deemed change of ownership and so avoided
taking the exception. That taken together with the attitude of Mr
Gagiano on behalf
of the plaintiff that whichever way the application
for absolution went the costs should follow the event, I decided that
the most
equitable approach in the circumstances was to award the
costs of the absolution application, including the costs of the
application
not already disposed of by way of a prior court order, to
the defendant.
44.
The last question to consider are the costs
of the postponement on the 26 and 27 October 2020. In respect of the
costs related to
this postponement affidavits have been filed on
behalf of both the plaintiff and the defendant.
45.
The plaintiff in its affidavit takes the
position that the second third party was aware of the matter
proceeding on the 26 and 27
October 2020 and had failed to take steps
to ensure that he had legal representation after the withdrawal of
his previous attorney.
Consequently, the plaintiff’s position,
as set out in the affidavits referred to is that the second third
party should pay
the costs related to the postponement of the matter
on the 26 and 27 October 2020.
46.
The defendant’s position on the other
hand was that the plaintiff and the second third party should be
jointly and severally
liable for the costs occasioned by postponing
the matter on the 26 and 27 October 2020. The basis for this
submission is that after
being joined as a third party, the second
third party was to be served with all documents and be given notice
as a party under
the provisions of Rule 13(5). As
dominus
litus,
plaintiff served the relevant
notice of set down on the second third parties erstwhile attorney’s
local correspondent. This
defendant submitted was done in
circumstances where plaintiff ought to have known that this was no
longer effective service on
the second third party.
47.
The defendant submitted that the second
third party should be jointly and severally liable to pay the costs
occasioned by postponing
the hearing on the 26 and 27 October 2020,
because he did not provide an address contemplated in Rule 16(4)(b).
48.
Further, defendant set out in the affidavit
filed on its behalf on this issue of the costs related to the
postponement on 26 and
27 October 2020, that the second third party
had averred that he had given instructions to Blair Attorneys in
Bloemfontein before
the 26 October 2020.
49.
Plaintiff’s evidence that second
third party was aware of the matter proceeding on the 26 and 27
October 2020 has not been
challenged. In fact, to some extent, it is
supported by the defendant’s assertion that the second third
party had instructed
attorneys before the 26 October 2020.
50.
Unfortunately, the second third party has
not adduced evidence but it is clear that the postponement of the
matter on the 26 and
27 October 2020 was at his instance. There is no
direct evidence on record from him to show that second third party
needed such
postponement due to the fact that he did not have timeous
notice of the proceedings on those dates. There is no basis upon
which
I can ignore the evidence of the plaintiff that second third
party was aware that the matter would proceed on the said dates. In
the circumstances I believe second third party should bear the costs
of the postponement of the matter on the 26 and 27 October
2020.
In
the circumstances the following order is made:
1)
The defendant is granted absolution from
the instance.
2)
The plaintiff is to pay the costs of such
application, such costs to include the costs of the action that are
not as yet disposed
of by any existing Court Order in this matter.
3)
The second third party is to pay the costs
of the postponement of the matter on the 26 and 27 October 2020.
Lawrence
Lever
Judge
- Northern Cape Division, Kimberley
Representation:
Plaintiff:
Adv
GJ Gagiano oio Engelsman Magabane Inc.
Defendant:
Adv JG Gilliland oio Van De
Wall Inc.
Date
of Hearing:
19 August
2021
Date
of Judgment:
17 September 2021
[1]
2001
(1) SA 88
(SCA) at 92E to 93A.
[2]
2003
(4) SA 315
(SCA) at 323C-G.
[3]
Above.
[4]
HURLEY
AND ANOTHER v MINISTER OF LAW AND ORDER
1985 (4) SA 709
(A) at 725H.
[5]
ATLANTIC
CONTINENTAL ASSURANCE Co. v VERMAAK
1973 (2) SA 525
(ECD) at 527C-D.
[6]
2006
(4) SA 188
(NPD) at 191I to 192C.
[7]
Luttig
v Jacobs
1951 (4) SA 563
(O) at 568A-D.
[8]
1910
AD 58.