Van As v Kotze (1646/2015) [2019] ZANCHC 20; [2019] 3 All SA 284 (NCK) (5 April 2019)

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[2019] ZANCHC 20
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Van As v Kotze (1646/2015) [2019] ZANCHC 20; [2019] 3 All SA 284 (NCK) (5 April 2019)

IN
THE HIGH COURT OF SOUTH AFRICA
(Northern
Cape Division, Kimberley)
CASE
NO:
1646/2015
DATE
HEARD:
28-31 JANUARY, 26 MARCH 2019
DATE
DELIVERED
:5 APRIL 2019
In
the matter between:
VAN
AS,
JACQUES
Plaintiff
and
KOTZE,
NICOLAAS
JOHANNES
Defendant
Coram:
Olivier
J
JUDGMENT
Olivier
J:
INTRODUCTION
[1.]
The
farm Mamaghodi near Postmasburg was in the possession of the Van As
family for 78 years.  This case is about the tragic
loss of the
farm by the Van As family.  More recently the farm belonged to
the late Mr GC Van As
[1]
, who
farmed and lived there since 1962, with his wife, Mrs JEW Van As, to
whom he was married in community of property.  Mr
and Mrs Van As
had four sons, Mr Jacques Van As, who is the plaintiff in the present
matter, Mr Theo Van As, Mr Christo Van As
and Mr Werner Van As.
[2.]
During
and about the year 2009 negotiations took place between Mr and Mrs
Van As on the one hand, and Sishen Iron Ore Company (“
Sishen
”),
on the other.  Sishen wanted to purchase the farm, as well as
other farms in the area, in order to erect a railway
line over the
properties.  The negotiations resulted in the conclusion, on 23
June 2009, of a sale agreement of which the
salient terms, for
present purposes, were as follows:
2.1
The farm was sold to Sishen.
2.2
The sellers, in other words Mr & Mrs Van As, could carry on
occupying the
farm for a period of five years in terms of a lease.
2.3
The sellers had the right to buy back the farm at a fixed price (for
the sake
of convenience this right will hereinafter where necessary
be referred to as “
the
option
”)
[2]
.
2.3.1
It was agreed that the farm could be bought back after the completion
of the railway line, but
within a period of five years of the
conclusion of the sale agreement, and that notice of the intention to
exercise the option
would have to be given to Sishen at least three
months prior to the expiry of the five year period from the date of
the conclusion
of the contract.
2.3.2
Within 60 days of such notice the purchaser would have to furnish
Sishen with a bank guarantee
for the full amount of the purchase
price and the value added tax thereon.
2.4
The sellers were entitled to cede the option, and in such event they
would have
to notify Sishen in writing of their intention to cede.
[3.]
By that
time the late Mr Van As was already of an advanced age, and he felt
that he was no longer physically able to carry on the
farming
business alone.  Of the four sons only the plaintiff was
interested in taking over the farm.  At the time he
lived in
Johannesburg, with his wife and two children, where he was
permanently employed.  He resigned from his position and
he and
his family relocated to the farm.  The children were placed in a
boarding school and the plaintiff’s parents
moved to an old age
home in Postmasburg.
[4.]
The
plaintiff then effected significant improvements on the farm at his
own expense.  It is undisputed that the plan was for
the option
to be ceded to the plaintiff and for him to eventually exercise it,
and to become the owner of the family farm.  It
is also
undisputed that the intention of the plaintiff’s parents was
that the proceeds of a particular policy or investment
would be made
available to the plaintiff to enable him to pay the purchase price.
[5.]
As will
appear from what follows the defendant, Mr Nicolaas Johannes Kotze,
who practises as an attorney for his own account under
the name and
style of Johan Kotze Attorneys in Postmasburg, drew up a cession
agreement, which provided for the cession of the
option to the
plaintiff.  There is a dispute about where and when the cession
agreement was signed, to which I will revert.
[6.]
The
option lapsed late in March 2014, without having been exercised.
The plaintiff’s parents were notified of this in
July 2014, and
in August 2014 they were notified that the lease had also expired.
The plaintiff eventually vacated the farm,
and all movable assets
were sold on auction.  He moved to Postmasburg, where he now
lives in a house that belonged to his
parents, and where he has a
shop.  He and his wife got divorced; he believes as a result of
these events.  The loss of
the farm has affected the plaintiff
emotionally, and he has difficulty to sleep and has to take
sedatives.
[7.]
In August
2015 the plaintiff issued summons against the defendant, claiming
damages in an amount of R5 618 545.90.
The
plaintiff’s main cause of action is that the defendant failed
to execute an instruction to take steps to ensure the exercise
the
option.  In the alternative the plaintiff relies on a breach of
an alleged duty of care on the part of the defendant.
The
quantum of the damages was settled, and only the liability of the
defendant remained in dispute.
[8.]
The
evidence of the plaintiff was presented, as well as the evidence of
his mother and of Mr M Coetzee on his behalf.  For
the defence
the defendant testified, and the evidence of Mrs Brits was presented
on his behalf.
[9.]
The
plaintiff bore the onus to prove the mandate agreement
[3]
.
The same applies to the plaintiff’s allegations of the breach
of a legal duty
[4]
.
[10.]
In
considering the conflicting versions that will be dealt with in due
course, regard will be had to,
inter
alia
,
the probabilities
[5]
.
BACKGROUND
[11.]
In order
to understand the relationship between the plaintiff and the
defendant it is necessary to deal with the sequence of certain
events
that preceded the lapse of the option.
The consultation of
1 February 2012 and the debt collection
[12.]
The
plaintiff made an appointment to consult the defendant on 1 February
2012.  This appointment is reflected in the office
diary of the
defendant, which was kept by his receptionist.  The consultation
was attended by the plaintiff and his father.
The plaintiff
completed a standard form, that is completed by clients who consult
the defendant and the contents of which would
then, once the
defendant accepts the instructions given to him (presumably in the
form), constitute an agreement between the client
and the defendant.
The plaintiff neglected to describe the defendant’s instruction
or mandate in the designated space
in the form (“
mandate
form
”).
He did, however, record his identity number in it.
[13.]
During
that consultation the defendant made certain notes, the contents
whereof are not really relevant for present purposes.
Suffice
to say that they concerned instructions by both the plaintiff and his
father about debts owed to them by Mr Theo Van As.
There is a
dispute about whether the defendant was on that occasion given an
address for Mr Theo Van As, and for what purpose he
was given the
contact details of an employee of Absa Bank.  This too is
irrelevant for purposes of the issues to be decided
in this matter.
The same applies to whether the plaintiff asked the defendant, at
that stage, not to take any steps whatsoever
on his behalf yet, while
he awaited payment of an amount that had apparently been agreed upon
in settlement talks between the plaintiff
and Mr Theo Van As, or
whether the defendant was instructed to demand payment of that
particular debt, but not to issue summons
in respect of it yet.
[14.]
A file
was then opened in the defendant’s office in the name of the
plaintiff, but cross-references to the name and telephone
number of
his father were recorded on the cover of the file.  The
defendant’s undisputed evidence was that this was
done because
the plaintiff’s father lived in the town of Postmasburg and
would be easier to reach than the plaintiff, who
lived on the farm.
[15.]
On 10
April 2012 the plaintiff called the defendant and told him not to
take any action against Mr Theo Van As in respect of the
debt owing
to him, pending further instructions, as Mr Theo Van As had paid part
of the debt owing to him.  A note on the
plaintiff’s file
confirms this call.
[16.]
On the
defendant’s version he and the plaintiff did not, in the period
between this telephone call and the expiry of the option,
have any
further contact at all, while on the plaintiff’s version they
did indeed have contact again, according to the plaintiff:
16.1
when the defendant was instructed to not only see to the cession of
the option, but also
its exercise; and, shortly thereafter,
16.2
when the cession was according to the plaintiff signed in the
defendant’s presence
and in his office.
These
issues will be reverted to.
[17.]
On 20
April 2012 the defendant sent a letter of demand to Mr Theo Van As,
claiming payment of the money owing by him to his parents.
The
letter was sent to an address which turned out not to be the address
of Mr Theo Van As.
[18.]
At some
time between 15 and 18 May 2012 notes, in the handwriting of the
plaintiff’s father, were left at the reception of
the
defendant’s offices.  One of the notes was dated 15 May
2012 and was addressed to the defendant, and the other to
the
plaintiff.  The defendant was instructed to immediately proceed
with legal steps against Mr Theo Van As for the recovery
of the
amount owing by him to his parents, and the defendant was furnished
with an address for Mr Theo Van As
[6]
.
In the note to the plaintiff he was requested to drop off the notes
at the offices of the defendant and to remind the defendant
of the
money owing to the plaintiff himself.  The plaintiff was
requested to give the defendant a telephone number for Mr
Theo Van
As.  For the sake of convenience these notes will be referred to
as the “
15
May notes
”.
[19.]
On 21 May
2012, and clearly on the strength of the 15 May notes, letters of
demand (dated 18 May 2012) were sent to Mr Theo
Van As in
respect of the debt owing to his parents and the balance still owing
to the plaintiff.  The defendant’s evidence
was that he
demanded payment of the balance owing to the plaintiff despite the
plaintiff’s call of 10 April 2012, because
he saw the 15 May
notes as an instruction not only in respect of the debt owing to the
parents, but also in respect of the
balance owing to the plaintiff.
Whether the defendant was correct in this assumption, is also not
relevant.
[20.]
On
20 June 2012 the plaintiff’s father called the defendant
and instructed him not to take any further steps against
Mr Theo Van
As.  The plaintiff’s file at the offices of the defendant
was eventually closed and archived in September
2012.
The
consultation of 10 April 2012 and the cession
[21.]
Meanwhile
an appointment with the defendant had been made in the name of the
plaintiff’s father, for 10 April 2012.
An
entry in the defendant’s office diary once again reflects the
appointment
[7]
.  This
appointment was attended by both the plaintiff’s parents, but
not by the plaintiff.  The plaintiff’s
father completed a
mandate form, and also did not indicate a specific mandate in the
designated space.  He too, like the plaintiff
in respect of the
previous consultation, paid a consultation fee of R250.00.  A
file was then opened in the name of the plaintiff’s
father.
This file was eventually closed and archived on 12 June 2013,
according to the defendant when he was satisfied
that he had carried
out all instructions given to him during the consultation of 10 April
2012.
[22.]
According
to the defendant he was at this consultation handed notes, which were
also in the handwriting of the plaintiff’s
father.  The
notes consist of two pages that are headed “
Investments
as at 6 April 2012
”
[8]
and a third page headed “
Joint
Will
”
[9]
.
For the sake of convenience these notes will be referred to as the
“
6 April
notes
”.
[23.]
In the
second paragraph on the second page of these notes reference was made
to the guaranteed maturity value of a policy, which
would reach
maturity in October 2014.  It was recorded in the notes that the
proceeds of the policy would be used to assist
the plaintiff to buy
back the farm.  The second paragraph on the page headed “
Joint
Will
”
referred to the re-purchase of the farm by the plaintiff.  It
contains the identity number of the plaintiff, and refers
to a policy
in the amount of R4 000 000.00, which would mature in
October 2014.  It is safe to say that this was
a reference to
the same policy mentioned on the second page, and that the intention
was clearly expressed, in the 6 April notes,
that the proceeds of
that policy were to be used to assist the plaintiff to buy back the
farm.
[24.]
Note 7 on
the fourth and last page of the 6 April notes referred to the
appointment of,
inter
alia
,
Mr Christo Van As as a trustee of the GC & JE Trust.
[25.]
Note 9.1
referred to the outstanding balance of the debt owing to the
plaintiff by Mr Theo Van As, and incorrectly stated it as
being
R89 000.00
[10]
.
Note 9.2 were about Mr Theo Van As’ debt to his parents.
[26.]
There
is dispute about what instructions were given to the defendant at the
consultation of 10 April 2012.  The defendant’s
case in
this regard is as follows:
26.1
He was provided with three different instructions, namely:
26.1.1
to draw up a new will;
26.1.2
to get Mr Christo Van As appointed as an additional trustee of the
Trust; and
26.1.3
to effect the cession of the option to the plaintiff, and to notify
Sishen accordingly.
26.2
For such purposes he was furnished with the existing joint will, the
6 April notes and
a copy of the sale agreement.
26.3
The defendant advised the plaintiff’s parents that, because the
right to be ceded
concerned immovable property, a written cession
agreement would be required.  They instructed him to draw up
one.
26.4
The expiry date for the exercise of the option was not calculated by
the defendant at that
stage, according to him because he did not have
instructions in respect of the exercise of the option.  He
calculated this
date for the first time in the course of this
litigation, in a consultation with his legal team on 14 November
2016.
[27.]
The
plaintiff’s case in this regard is as follows:
27.1
He does not dispute that the first two instructions had been given to
the defendant at
that consultation, but according to him it is a
blatant lie of the defendant to say that he was on that occasion also
instructed
to see that the option was ceded to the plaintiff.
27.2
According to the plaintiff the instruction regarding the cession
could not have been given
to the defendant at that consultation,
because the defendant would according to him have needed to have
insight into the sale agreement
in order to prepare the cession
agreement, and according to the plaintiff the defendant would not at
that stage have had a copy
of the contract yet.  When asked
whether he was just assuming that the defendant did not on 10 April
2012 have a copy of the
sale agreement, he went on to say that he
only took a copy of it with him when he and his father, according to
him, went to the
defendant at a later stage, when they consulted the
defendant regarding the cession of the option and its exercise.
I will
revert to this issue, and the alleged later consultation (“
the
disputed consultation
”), too in due course.
[28.]
The
cession agreement was drawn up on 16 April 2012.  As already
mentioned, there is a dispute regarding when and where the
cession
agreement was signed, but on either of the versions of the plaintiff
and the defendant it would have happened at some time
between the
18
th
and the 20
th
April 2012.
[29.]
In a
letter dated 18 April 2012 the defendant notified Sishen of the
intended cession.  His evidence was that he wrote
this letter on
behalf of the plaintiff’s parents.  The letter refers to
only the plaintiff’s parents, and the
reference number
contained in the letter is that of the file of the plaintiff’s
father.  The evidence of the defendant
was that he did so
because he had been instructed to do so, by the plaintiff’s
parents, at the consultation of 10 April 2012.
The plaintiff
agreed, in cross-examination, that the letter appeared to have been
addressed to Sishen on behalf of his parents,
as clients of the
defendant, and not on his behalf.  In fact, it was also required
by the sale agreement that notice of the
intended cession be given by
the sellers, in other words the parents of the plaintiff.
[30.]
On 24
April 2012 the defendant sent a letter (dated 20 April 2012) to Mr
Christo Van As regarding his appointment as a trustee,
which would be
consistent with the defendant’s version of having at the 10
April 2012 consultation received instructions
to get Mr Christo Van
As appointed as a trustee.  The letter made reference to the
father’s instructions to have Mr
Christo Van As appointed as a
trustee, and requested certain information from Mr Christo Van As.
[31.]
Mr
Christo Van As was indeed later appointed as an additional trustee,
and the defendant then forwarded the letter of appointment
to the
plaintiff’s father under cover of a letter dated 30 November
2012.  It was never suggested, by or on behalf of
the plaintiff,
that there could be any other reason for this than the instructions
that the defendant says were given to him at
the consultation of 10
April 2012.
The disputed
consultation
[32.]
According
to the defendant it was only at the consultation of 10 April
2012 that he was given instructions regarding the option,
and never
on any other occasion, and in any event never by the plaintiff.
He denies, as already mentioned, any contact whatsoever
with the
plaintiff after the telephone call from him on 10 April 2012.
[33.]
The
plaintiff, on the other hand, says that instructions regarding the
option, including its cession, were given to the defendant
at a later
consultation, attended by him and his father.  In the
plaintiff’s further particulars this consultation was
referred
to as having taken place “
prior
to 20 April 2012
”.
In cross-examination of the plaintiff the possible date upon which
such a consultation could have taken place, was
narrowed down to
somewhere between 10 April 2012, when he called the defendant about
the outstanding balance of the debt of Mr
Theo Van As, and 16 April
2012, when the cession agreement was prepared.
[34.]
The
defendant denies that such a consultation ever took place.  For
the sake of convenience and as already indicated, this
alleged
consultation will be referred to as the “
disputed
consultation
”.
[35.]
In his
evidence in chief the plaintiff described in surprising detail how it
had come about that he and his father attended the
disputed
consultation.
35.1
According to him he and his father had a heated discussion before
they went there, because he
(the plaintiff) wanted them to consult
another attorney, in Kimberley, and not the defendant.  He
testified that his father
did not wish to make the journey to
Kimberley and back.  Eventually he and his father drove to the
defendant’s offices
in his bakkie.  There he assisted his
father up the stairs, his father according to him holding on to the
left rail.
He himself held onto a copy of the sale agreement,
in his right hand.
35.2
While he stood in the door to the defendant’s
office his father told the defendant that “
they
”
were leasing the farm for a period of 5 years “
and
then
”
[11]
they would have to buy back the farm, that they had to buy the farm
in 2014 and that a letter or letters had to be written to Sishen

about that.  According to the plaintiff he did not know what his
father meant by his reference to a letter or letters.
His
father also told the defendant that he was too old to carry on
farming and that the plaintiff was farming there.  His
father
also informed the defendant that the proceeds of the sale of the farm
had been invested for purposes of buying back the
farm.
35.3
According to the plaintiff he himself then only said to the defendant
that he must make sure
that the farm was bought back by him (the
plaintiff), and not by his father.
35.4
From his evidence in cross-examination it appeared that the plaintiff
actually regarded
these utterances as tacit or implied instructions
to the defendant to exercise the option on his behalf.  He
testified that
nothing more was said, but that if the defendant had
regard to what had been said to him by the plaintiff and his father,
he would
have known that they wanted him to do whatever was necessary
to buy back the farm on behalf of the plaintiff.  According to

the plaintiff the defendant responded with words to the effect that
they should leave it to him.
The consultation of
18 April 2012
[36.]
The
defendant’s office diary for the date of 18 April 2012 reflects
an appointment for a Mr Van As in the following terms:
“
Mr
Van As – Trust
”
[12]
.
[37.]
There is
no dispute that this was a reference to the plaintiff’s father,
that he and the plaintiff’s mother were indeed
at the
defendant’s office on that day and that they signed their
amended joint will (which had by then, and since the consultation
of
10 April 2012, been drawn up by the defendant) on that occasion.
The
cession agreement and the lapse of the option
[38.]
On 2 May
2012 the defendant sent a letter (dated 26 April 2012) to Sishen,
under cover of which he furnished Sishen with a copy
of the cession
agreement.
[39.]
This
obviously led to a letter (dated 31 May 2012) which Weavind &
Weavind, the attorneys of Sishen, addressed to the defendant.

In the letter receipt of the copy of the cession agreement by their
client, Sishen, was acknowledged, but it was pointed out that
the
option would still have to be exercised in accordance with the sale
agreement, and a request was made that, in such event,
a copy
(presumably of the notice to exercise the option) be furnished to
them.
[40.]
On 7 June
2012 the defendant replied, acknowledging receipt of this letter,
again referring to the plaintiff’s parents as
his clients and
again using the number of the father’s file as a reference.
[41.]
On the
same date the defendant forwarded a copy of the Weavind & Weavind
letter to the plaintiff’s father for his records,
once again
with the number of the father’s file as reference.
[42.]
On 20
June 2012, and once again under the same reference number, the
defendant forwarded copies of the defendant’s letters
(to
Sishen) dated 18 and 26 April 2012 to the plaintiff’s
father, after it had been telephonically requested by the
latter.
[43.]
Nothing
further happened, as far as the exercise of the option is concerned,
until the plaintiff’s parents were notified,
as already
mentioned, that the option had not been exercised and had
consequently lapsed.
THE SIGNING OF
THE CESSION AGREEMENT
Plaintiff’s
case
[44.]
Here too
the plaintiff’s evidence contained an amazing amount of detail,
especially having regard to the effluxion of time
since April 2012.
44.1
According to the plaintiff his father phoned him one evening and said
that he should come
to town, because they had to go to the
defendant.  He testified that his father told him that the
defendant had said that
he should bring along his identity document,
and that all of them had to go to the defendant’s offices to
sign.  There
was no objection to this evidence.  He
described how he drove from the farm to the old age home in
Postmasburg the next morning
in a blue Toyota Corolla motor vehicle.
44.2
He once again found it necessary to explain, in his evidence in
chief, in great detail
how his father had to be assisted up the
stairs to the offices of the defendant.  He even explained the
exact positions of
his father, his mother and himself, as they sat at
the desk in the defendant’s office.
44.3
The defendant requested his identity document, and then left with
it.  He assumed
that the defendant wanted to make a copy.
44.4
He explained how the defendant gave them a document that they had to
sign, which he identified
in court as having been the cession
agreement.  He explained how, after the defendant had showed
them where they had to sign,
the document was first given to his
father, and he explained painstakingly how his father then removed a
pen from his cheque book
and signed the second page of the document.
According to the plaintiff his mother then also signed that page, and
after her
he signed it.
44.5
He went on to explain, again in great detail, how his father then
replaced his pen in his
cheque book, and replaced an elastic band
that held it in position, and how the defendant then said that they
should also initial
the first page of the document, which caused his
father to again remove the elastic band and then his pen, whereafter
all of them
applied their initials to the first page, according to
him in exactly the same sequence as they had appended their
signatures to
the second page.
44.6
The plaintiff’s evidence was that the defendant then signed and
initialled the document
in front of them, as first witness.
Nobody else was present in the office and he did not know when the
second witness signed
and initialled the cession agreement.
44.7
According to the plaintiff the option was not discussed on that
occasion.
Defendant’s
case
[45.]
The
defendant’s version of the circumstances under which the
cession agreement was signed, was completely different:
45.1
According to him he handed the document to the plaintiff’s
parents on 18 April
2012, during the consultation when they
signed their amended will.  He showed them where they and the
plaintiff, and the witnesses,
had to sign and append their initials.
45.2
The cession agreement was later left at his reception by somebody.
It had been signed
and initialled by the plaintiff and his parents,
but not by any witnesses, and was also not dated.
45.3
He then took it upon himself to date the document with the date of
that day, 20 April 2012,
and he signed and initialled the document as
a witness, even though he had never witnessed the signing thereof.
Thereafter
he took it to his conveyancing secretary, Mrs Brits, and
at his request she too signed and initialled it as a witness.
Amendment
[46.]
In
the particulars of claim it was alleged that the cession agreement
was signed by the plaintiff, his parents and the defendant
(as a
witness) in the defendant’s office on 20 April 2012, and in the
initial plea, dated 29 September 2015, this allegation
was included
in a general denial.
[47.]
When
the defendant’s insurers became involved in the litigation, he
had to complete a questionnaire. An amended plea (dated
29 June
2016) was then filed.  In this plea it was alleged that the
cession was signed “
by
all the parties thereto at the offices of the Defendant on 20 April
2012
”,
and that not only the parents, but also the plaintiff, did on that
date attend the offices of the defendant.  This
amendment
effectively withdrew the denial in the original plea and brought the
defendant’s plea in line with the allegations
in the
particulars of claim, and it effectively amounted to an admission
that the cession agreement had indeed been signed in the
defendant’s
presence, at his offices, on 20 April 2012.
[48.]
However,
in December 2016 a notice of amendment was filed on behalf of the
defendant, in terms of which it was effectively sought
to withdraw
the admission, and to plead the version of the defendant as set out
above.  The amendment was objected to, but
the defendant was
successful in a subsequent application for such an amendment.
[49.]
In
cross-examination the defendant offered the following as an
explanation for the second amendment:
49.1
It was a misinterpretation of his answers in the questionnaire that
caused the erroneous
allegations and admissions in the first amended
plea.  He explained that the questionnaire had contained two
questions about
the cession.  The one was when he had received
the signed document, to which he had responded that it was on 20
April 2012.
The second question was who had signed the document
as witnesses, to which he had responded that it was he and Mrs
Brits.
He testified that, when the first amended plea was
drafted, these questions and answers were misunderstood to mean that
the documents
had actually been signed at his offices on that date.
49.2
The defendant furthermore testified that, although he did see the
first amended plea before
it was filed, and he did then notice these
erroneous allegations, he did not take steps to prevent the filing of
the plea, as he
thought that he would take it up with his legal
representatives when he consulted with them.
49.3
The defendant explained that it was only after the consultation with
his legal representatives
on 14 November 2016, when he brought the
correct position to their attention, that the further notice of
amendment was filed.
Evaluation
[50.]
The first
question that inevitably arises, is why the plaintiff would remember
such an event in so much detail after all this time,
down to the kind
of vehicle used, who sat in the middle, on the left and on the right
in the office, where exactly his father had
kept his pen, how many
times he had to remove it from there, and in what sequence the second
page was signed and the first page
initialled.
[51.]
This
while the plaintiff could obviously not even recall the date of the
disputed consultation, which one would have thought would
have been
of much more importance to him.  The date of 20 April 2012,
which appears on the cession agreement, would of course
have made it
easy for the plaintiff to put a date to his version of the signing of
the cession agreement.  The plaintiff did
not, however, commit
to a time of day that they had allegedly gone to the office of the
defendant on that day, not even when he
was in cross-examination
confronted with the absence of any entry reflecting such an
appointment in the diary for that day, and
with the fact that,
according to the diary, the defendant was supposed to be in court
that morning and in consultations that afternoon,
the last of which
was scheduled for 15:30.  The plaintiff was not prepared to go
further than to suggest that they could theoretically
have gone there
after 15:30.  The defendant’s concession that the diary
would not necessarily reflect it if a case was
postponed (and if the
defendant was therefore not in court for the period reflected in the
diary) does not assist the plaintiff,
because his version is not that
they had gone there during that morning.
[52.]
It is
true that the mother of the plaintiff confirmed literally each and
every one of the details in the plaintiff’s evidence
alluded to
above.  Once again one wonders how she would after all this time
remember all of that. This while she initially
wanted to refresh her
memory from notes, according to her because there were two dates
before the 18
th
of April that she could not remember.  When she was made aware
of the fact that, in such an event, she would have to disclose
the
notes to counsel for the defendant, she abandoned the idea of
refreshing her memory, quite obviously because she did not want

counsel for the defendant to see those notes.  What is
significant, however, is that it was common cause that she had in
fact not been to the defendant’s office twice before 18 April
2012, but indeed only once, on 10 April 2012.  One
can just
surmise what other date (before 18 April 2012) she could have been
trying to remember, and that was according to her recorded
in her
notes.  She would obviously not have been present on the
occasion of the disputed consultation, even on the version
of the
plaintiff.
[53.]
In the
case of both the plaintiff and his mother these details were tendered
in their evidence in chief.  Viewed against the
background that
neither the plaintiff nor his mother could apparently put a time to
the alleged visit to the defendant’s
office, as well as the
mother’s inability to remember other and much more material
detail (as will also appear from what
follows), the question
inevitably arises whether this is not a rehearsed version.  When
I raised this with Mr Smit (plaintiff’s
counsel) in argument,
his response was that they may very well have discussed it.
[54.]
There
were also other inconsistencies and improbabilities in the evidence
of the plaintiff’s mother on this issue:
54.1
She testified that the defendant had called her husband on 19 April
2012 and had requested
that they come to his office to sign a
document, and that the plaintiff bring his identity document with
him. It is common cause
that she and Mr Van As were in the
defendant’s office just the day before, and it is undisputed
that the cession agreement
had by the 18
th
of April 2012 already been prepared.  If the defendant had
wished the parties to sign the agreement at his office, why would
he
not on the 18
th
of April 2012 have made arrangements with the parents about when they
should come to his office to sign it?  It makes no sense
that he
would, instead, the day thereafter have phoned the late Mr Van As to
make these arrangements.  In fact, he could have
requested that
the plaintiff accompanied his parents when they were in any event
going to him to sign their amended will.
54.2
It is clear that Mrs Van As did not, on the occasion of the alleged
telephone call of 19
April 2012, speak to the defendant herself and
she could not therefore have had any first-hand knowledge of a
request by the defendant
that the plaintiff should bring his identity
document.
54.3
Mrs Van As was clearly confused about dates, and at one stage, during
cross-examination,
she clearly confused the date of the consultation
about the joint will (10 April 2012) with the date that the will was
signed (18 April
2012).
[55.]
That
Mrs Van As did not have a clear recollection of the events of April
2012, also became clear when she was cross-examined about
the
consultation of 10 April 2012.
55.1
She was completely unsure of what documents had been taken to that
consultation and what
had been discussed there.  At first she
said that only the issue of the joint will was discussed, but later
she conceded that
the issue of the appointment of an additional
trustee had probably also been discussed.  She insisted,
however, that the defendant
was not instructed on the cession of the
option during that consultation.  Why she was so adamant about
this is not clear,
but such a denial would obviously have supported
the plaintiff in his version that the issue of the cession was
discussed at a
later stage, during the disputed consultation.
55.2
Mrs Van As at first conceded that the “
documents
of the farm
”,
as she described them and which in all probability referred to a copy
of the sale agreement, had been taken to the defendant
on the
occasion of the consultation of 10 April 2012. Later she denied
that any such documentation was taken to that consultation;
a version
which would coincidentally also be consistent with that of the
plaintiff regarding when a copy of the sale agreement
was given to
the defendant
[13]
.
55.3
The denial of Mrs Van As, at one stage, that the 6 April notes
were given to the defendant
at the consultation of 10 April
2012, is very difficult to believe.  There is no evidence that
those notes were given
to the defendant on any other date, and it is
not disputed that they were in the particular file.  Even if
only the will was
discussed at the consultation of 10 April 2012, it
would have made perfect sense to have had those notes there for the
defendant,
because they,
inter alia
, dealt with the issue of
the estate and the joint will.  To put it another way, it would
not have made any sense to go to
the defendant to discuss the issue
of the joint estate and the joint will, and not have the notes,
containing
inter alia
an exposition of the assets in the
estate and on all indications drawn up before then, there for the
defendant
[56.]
The
question is also whether it is not completely improbable that the
defendant would have gone to the trouble of making the call
to summon
all of them there for the purpose of signing the cession agreement,
especially against the background that the plaintiff
would have had
to come into town from the farm, and then not make an appointment or
agree on a specific time for such purposes?
The plaintiff
conceded that his parents would probably not normally have gone to
the defendant without having made an appointment
and one can
understand this if regard is had to his evidence about his father’s
physical condition at that stage.
[57.]
In
his heads of argument Mr Smit has now adopted the attitude that the
best evidence of the diary entries would have been that of
the
receptionist who had been responsible for making entries, and that
her evidence should have been presented.  The diary
entries were
canvassed with the plaintiff in cross-examination and those questions
were never objected to.  The plaintiff
in fact admitted the
existence of all the entries that he was questioned about, and it was
only when he was cross-examined about
the absence of any entry for
the disputed consultation, that he questioned the accuracy of the
diary and its entries.  The
defendant’s evidence on the
diary entries, and about how his receptionist went about making those
entries, was never objected
to.  It is also important to keep in
mind that, as far as the consultations that are common cause are
concerned, all the relevant
entries proved to be accurate.
[58.]
Why
would the defendant admit to having falsely witnessed such an
important document, if this was not true?  Mr Smit suggested

that his motive may be to avoid any suggestion of contact between him
and the plaintiff as far as the issue of the option is concerned
and
that this issue would therefore also be relevant to the nature of the
relationship between the plaintiff and the defendant.
I think
it is very unlikely, if not far-fetched, that the defendant would
have concocted such a false version for this reason,
not only in view
of the ethical implications of his version for himself, but also in
view of the fact that, on the plaintiff’s
own version, there
had not been any discussion about the option, and more particularly
its exercise, on that occasion.
[59.]
This
brings me back to the issue of the amendment of the defendant’s
plea as regards when and where the cession agreement
was signed.
59.1
I cannot on face value reject the defendant’s explanation for
the inclusion of the
implied admissions in the first amended plea.
I will however disregard the fact that Mr Heyns (defendant’s
counsel),
in argument, in effect accepted responsibility for the
misinterpretation of the defendant’s answers to the
questionnaire
when he drew up the first amended plea.
59.2
The defendant’s explanation of having delayed pointing out the
mistaken admission
until the first consultation with his legal
representatives may sound strange on the face of it, coming from an
experienced attorney,
but on the other hand the fact that the notice
of the final amendment was filed less than a month after that
consultation, would
be consistent with this explanation, and with him
having indeed pointed this out during that first consultation.
59.3
That the version in the second amended plea is effectively the same
as that in the original
plea, namely a denial that the cession was
signed in the office of the defendant and that he was present when it
was signed, militates
against the eventual version being an
afterthought and fabrication, as suggested to him in
cross-examination.
59.4
If the defendant’s explanation of how it came about that the
first amended plea effectively
admitted the plaintiff’s version
is rejected, it would imply that the version in first amended plea
had in fact been the
result of a conscious decision to admit the
truth.  Why would he then, when consulting with his legal
representatives for
the first time, have decided to revert to the
false denial?  It simply does not make sense, all the more so
where the about-turn
would require that he conjure up a version that
would implicate him in the unethical conduct of falsely “
witnessing
”
a very important document, and that he convince an employee to
falsely admit to the same unethical conduct and to commit
perjury by
corroborating in her evidence his false version of when he signed the
document.
[60.]
Much
was made of the evidence of Mr Martin Coetzee, the accountant of the
plaintiff, that a copy of the plaintiff’s identity
document was
found among the contents of the two files at a later stage, and it
was suggested that this would fit in with the evidence
that the
plaintiff’s father had told him that the defendant required him
to take his identity document with him on 20 April
2012.  The
question is, however, why the defendant would have needed a copy of
the plaintiff’s identity document for
the purposes of having
the cession agreement signed?  As already mentioned, the cession
agreement had already been drawn up
on 16 April 2012, and it
would already then have contained the plaintiff’s identity
number.  Also, and once again
as already mentioned, the
plaintiff’s identity number was clear from the mandate form
that he had completed and signed, and
it appeared in the 6 April
notes.  The defendant would therefore not have needed the
identity document for the purposes of
the cession agreement and it
unlikely that he would have requested it for those purposes.
[61.]
The
plaintiff’s evidence that he never read the document at the
time when they signed it, and that he was not made aware of
its
contents at the time, is also difficult to understand.  He had
no hesitation, in his evidence, to identify the cession
agreement as
the document that they had according to him signed on 20 April 2012.
The contents of the cession agreement,
and in particular its heading
(in bold and capital letters)
[14]
,
made it abundantly clear that it concerned the cession of the option
to the plaintiff, and the plaintiff applied his signature
in the
designated space immediately above the word “
SESSIONARIS
”
[15]
.
[62.]
The
defendant’s version of how and when the cession agreement was
signed by him and by Mrs Brits, and on whether the plaintiff
or his
parents were present at the time, was corroborated by the evidence of
Mrs Brits.
[63.]
It
follows that I am not prepared to find, on a balance of
probabilities, that the cession agreement was signed by all parties
concerned on 20 April 2012, at the offices of the defendant.
THE MANDATE
Pleadings
[64.]
The
plaintiff’s main cause of action is based on the breach of a
mandate allegedly given to the defendant expressly.
In the
particulars of claim it is pleaded that, at a consultation “
in
and during April 2012
”,
the plaintiff and his parents “
instructed
and mandated
”
the defendant to:
64.1
“
draft
agreements/documents necessary to effect a waiver of the repurchase
right of the parents in favour of the plaintiff, alternatively
a
cession of that right by the parents to the plaintiff
”
[16]
;
and
64.2
“
do
all things necessary to ensure that the farm is legally and
effectively bought back by the Plaintiff by ensuring that the right

to buy back the farm is timeously and effectively exercised in
accordance with the terms of the Agreement
”
[17]
.
[65.]
In
response to a request by the defendant for further particulars, it
was stated:
65.1
That the plaintiff’s parents
[18]
had consulted the defendant “
during
April 2012
”,
on which occasion they had given the defendant the instructions set
out in paragraph 64.1 above
[19]
;
and
65.2
That the plaintiff and his father had consulted the defendant “
prior
to 20 April 2012
”
[20]
,
and that on that occasion the plaintiff had given the defendant
instructions a set out in both paragraphs 64.1 and 64.2 above
[21]
.
[66.]
The
defendant’s version, on the pleadings, is as follows:
66.1
He pleaded that the plaintiff’s parents had, during the
consultation of 10 April
2012, instructed him to draw up a cession
agreement to provide for the cession of the option by the parents to
the plaintiff.
66.2
He denied that a mandate and instructions as described in paragraph
64.2 above were given
to him at any stage.
66.3
In the alternative, and in the event that it should be found that
such instructions had
in fact been given to him, he denied that he
had accepted such instructions.
66.4
In the further alternative, and should it be found that such
instructions had been given
to and accepted by him, the defendant
denied that the plaintiff had enabled him to exercise the right, by
providing him with instructions
about the exercise of the right,
including instructions about the “
manner
and means in which Plaintiff intended to make payment of the …
purchase price …
”,
and the defendant pleaded that the plaintiff’s damages had been
caused by his “
failure
and/or neglect … to enable Defendant to exercise and execute
the alleged mandate/instruction, alternatively the inability
of the
Plaintiff to buy back the farm
”.
The disputed
consultation
[67.]
The
plaintiff testified that the disputed consultation was attended by
only
him and his father and that they
both
on that occasion gave the defendant
all
the instructions alleged in the particulars of claim.  This in
itself is impossible to reconcile with the further particulars,
in
terms of which only the plaintiff gave instructions to the defendant
at the disputed consultation, and in terms of which the
plaintiff’s
father had, at the consultation of 10 April 2012
[22]
(and together with the plaintiff’s mother), only given
instructions to the defendant regarding the waiver or the cession
of
the right (and had never given the defendant an instruction to ensure
the exercise of the option).
[68.]
Be
that as it may, the question that must be considered is whether it
has on a balance of probabilities been shown that there was
another
consultation about the issue of the option and the buying back of the
farm in April 2012 (apart from the consultation of
10 April 2012),
which the plaintiff and his father attended, but not his mother.
This is obviously a crucial issue, as the
plaintiff’s case is
that the instruction to the defendant to ensure that the option was
exercised (as opposed to the instruction
regarding its cession), was
given at the disputed consultation, and at no other time.  If it
is found that no such consultation
has been proven, it would in
effect be the end of the plaintiff’s case as far as it is based
on that specific instruction.
[69.]
The
defendant’s case is clear.  According to him he received
instructions regarding the option during the consultation
of 10 April
2012, and when only the plaintiff’s parents were present, and
not the plaintiff himself.  Those instructions
concerned only
the cession of the cession, and not its exercise.  On his
version he therefore never received any instructions
from the
plaintiff regarding the option, and the disputed consultation never
took place.
[70.]
During
the cross-examination of the plaintiff the possible dates of the
disputed consultation was to an extent narrowed down to
somewhere
between 10 April 2012 (when the plaintiff had the telephonic
discussion with the defendant about the debt of Mr Theo
Van As to
him) and 16 April 2012 (being the date on which the cession
agreement was drawn up); but not on 14 or 15
April 2012,
having been respectively a Saturday and a Sunday.  In any event,
the disputed consultation must on the plaintiff’s
version have
taken place before 20 April 2012.
[71.]
When
considering the plaintiff’s evidence that there was such a
further consultation, where not only the plaintiff but also
his
father had given the defendant instructions regarding the option and
the buying back of the farm, it is necessary to first
of all go back
to the consultation of 10 April 2012.  If the plaintiff’s
father had already at that consultation:
71.1
Given the defendant a copy of the sale agreement, with the section
regarding the option
highlighted;
71.2
Discussed
with the defendant the option, and the intention for it to be ceded
to the plaintiff and to be exercised by him; and
71.3
Instructed
the defendant to draw up a cession agreement,
there would not have
been any need for the plaintiff’s father to do so again, a mere
day or two later.
[72.]
The
plaintiff was of course not present at the consultation of 10 April
2012.  His denials that the defendant had in that consultation

been given a copy of the sale agreement, as well as instructions to
prepare a cession agreement, are therefore strange, to say
the
least.  The latter denial is also inconsistent with the
plaintiff’s own pleadings
[23]
,
as is the similar denial of his mother, Mrs JEW Van As.
[73.]
I
have already alluded to the unsatisfactory aspects of the mother’s
evidence regarding the consultation of 10 April 2012,
in particular
also as regards the instructions for a cession to be effected, which
is a vital part of the plaintiff’s case,
at least on the
pleadings.
[74.]
The
probabilities are in my view overwhelming that the issue of a cession
of the right to the plaintiff was discussed at the 10 April
2012
consultation, as testified by the defendant, and as effectively
alleged in the plaintiff’s own further particulars.
[75.]
The
6 April notes were clearly drawn up by the plaintiff’s father
for the purposes of discussing not only the joint estate
and will,
but also other issues intricately linked to that, like the
appointment of trustees and, indeed, the repurchase of the
farm, not
by the parents but by the plaintiff.  Those notes were in all
probability handed to the defendant at the 10 April
2012
consultation, like the defendant said.  As already pointed out
it would not have made sense to have those notes, which
dealt with
investments in the joint estate and with the issue of the joint will,
available and then not to give them to the attorney
who is being
instructed to draw up an amended joint will.  Why would the
plaintiff’s father and the defendant on 10 April
2012 have
decided to leave the discussion of a part of the notes for a later
consultation?  There is no suggestion that this
is what
happened.
[76.]
There
is no evidence that the 6 April notes were given to, or
discussed with, the defendant on any other date than 10 April

2012.  That it must have been given to the defendant and
discussed with him at that stage, is as already mentioned borne out

by the fact,
inter
alia
,
that the defendant did then in the period from April 2012 take
several steps towards having Mr Christo Van As appointed as a
trustee; something that was a subject of those notes. There is no
evidence that the defendant had on any other occasion been instructed

to have Mr Christo Van As appointed as trustee.  In fact, Mrs
Van As conceded that the issue of the Trust had been discussed
at the
10 April 2012 consultation, which would be consistent with the
6 April notes having been discussed on that occasion,
and with
the defendant’s evidence that more than just the amendment of
the joint will was discussed on that occasion.
[77.]
Although
it was not clear whether Mrs Van As had in her evidence actually
denied that those notes had been given to and discussed
with the
defendant at the consultation of 10 April 2012, but if she did I
would reject her evidence in this regard on the
probabilities.
The evidence of Mrs Van As regarding the 10 April consultation
was not satisfactory, as already pointed
out, and it was clear that
she could not really recall in detail what had been said by the
plaintiff’s father on that occasion
and what had transpired
during that consultation.
[78.]
Mrs
Van As seemed to concede that the need for a cession of the right may
have been discussed, and it would not have made sense
to discuss it,
but then not to come to a decision to have a cession agreement
prepared and to not instruct the defendant accordingly.
I
therefore find that the defendant was indeed at the consultation of
10 April 2012 instructed to draw up the cession agreement.
[79.]
If
the plaintiff’s father had at the 10 April 2012 consultation
discussed with the defendant the option and had then instructed
the
defendant to prepare a cession agreement, why would he have felt the
need to return, with the plaintiff, for yet another consultation

about the very same option and then, on the plaintiff’s
evidence, talk to the defendant about the option as if he had never

discussed it and its cession with the defendant at any time before?
[80.]
Was
the denial by not only the plaintiff, but also by his mother, of an
instruction, on 10 April 2012 already, to see to the cession
of the
option, not an attempt to avoid this improbability?
[81.]
In
any event, the plaintiff’s father knew that he and the
plaintiff’s mother were going to return to sign the joint
will
and he could, if he had wished the plaintiff to attend a consultation
with him at the office of the defendant, have made such
arrangements
for the day that the joint will was going to be signed; All the more
so if regard is had to the plaintiff’s
detailed and repeated
description of the physical effort that it required for his father to
get to the defendant’s offices
and to scale those stairs.
[82.]
No
appointment in either of their names appears in the defendant’s
office diary for the period during which the disputed consultation

allegedly took place.  As already mentioned, the plaintiff
conceded that his father would probably not have gone to the
defendant’s
offices without an appointment.
[83.]
I
have therefore concluded that the plaintiff did not prove, on a
balance of probabilities, that the disputed consultation in fact
took
place.  As already pointed out, this really ends the plaintiff’s
case as far as it is based on a mandate as set
out in the plaintiff’s
further particulars, because on that version any other instructions
about the option than those regarding
the cession, could only have
been given at the disputed consultation.
Contents of alleged
mandate
[84.]
I
will nevertheless consider whether, on the plaintiff’s version
of what had transpired at the disputed consultation, it could
be said
that he has proved, on a balance of probabilities, that the defendant
had been instructed to ensure that the re-purchase
took place, in the
terms set out in paragraph 10.2 of the particulars of claim
[24]
.
[85.]
As
a starting point it is important to bear in mind that, on the
plaintiff’s pleadings and as already mentioned, the
instructions
had been given expressly.  Express instructions in
the terms pleaded in the particulars of claim can by no stretch of
the
imagination be said to appear from what had on the plaintiff’s
evidence been conveyed to the defendant at the disputed
consultation.
As already mentioned, the plaintiff’s
evidence was rather to the effect that the alleged instructions were
tacitly or impliedly
given to the defendant.  No attempt was
made to have the particulars of claim amended accordingly, and the
plaintiff’s
evidence in this regard was thus inconsistent with
his pleadings
[25]
.
[86.]
At
what stage was the defendant supposed to fulfil the alleged mandate,
in other words when should he have taken the steps to ensure
the
buying back of the farm?  Should the defendant have understood
the alleged utterances of the plaintiff and his father
to mean that
he should already at that stage not only effect the cession of the
option, but also take steps to ensure its exercise?
Or should
he have understood them to mean that he had to do so at some future
time, but before the expiry of the option?
In my view this is
an important aspect in the consideration of the probability that the
defendant had been given such an instruction.
[87.]
The
answer to this question does not appear from the plaintiff’s
particulars of claim or further particulars.  The plaintiff’s

evidence in this regard was ambivalent.  On the one hand he said
that he had, after having signed what according to him in
retrospect
appeared to have been the cession agreement, been satisfied that all
that was required for the timeous exercise of the
option had been
done there and then, which could be said to be indicative of an
understanding, on his part at least, that the instructions
regarding
the exercise of the option had been supposed to be (and were)
executed at that stage already.
[88.]
On
the other hand the evidence of the plaintiff that the defendant was
told that the farm was only to be bought back in 2014, and
by
implication at or towards the end of the lease period, militates
against an understanding that everything required for the timeous

exercise of the ceded option would be done there and then.  This
must also be seen against the background of the fact that
the
proceeds of the policy would only become available in October 2014.
[89.]
When
I debated this with Mr Smit his response was that the plaintiff’s
case is the steps were supposed to be taken at that
stage already, at
not at some future time.
[90.]
A
further uncertainty, both on the plaintiff’s pleadings and his
evidence, is who it was that was supposed to actually exercise
the
option and buy back the farm.   If the instruction to “
do
all things necessary to ensure …. that the right to buy back
….. is timeously and effectively exercised in accordance
with
the .... Agreement
”
was intended to mean that the defendant would buy back the farm on
behalf of the plaintiff, the problem would be that an
oral mandate to
do so would not have complied with the requirements of section 2(1)
of the Alienation of Land Act
[26]
,
in terms of which such a mandate would have had to be in writing.
This much was conceded by Mr Smit.
[91.]
The
other possibility is that the plaintiff’s case is that the
understanding was that he would himself give the notice and
buy back
the farm.  The plaintiff’s evidence that he never read the
cession agreement before signing it, but that he
regarded that act as
the last thing that he had to do in order for the option to be
exercised, suggested that he had been under
the impression that, by
signing that document, he himself was exercising the option and
buying back the farm right there and then.
On his version he
had not expected to have to sign anything else at a later stage.
[92.]
On
this version, however, the question would then be what the defendant
had been supposed to do to “
ensure
”
the exercise of the option and the buying back of the farm by the
defendant himself.  If I understood Mr Smit’s
argument
correctly, the defendant’s instructions would on this scenario
have included to advise the plaintiff on what he
needed to do to
exercise the option and to buy back the farm.  The plaintiff’s
evidence was not, however, that he had
not known that the option had
to be exercised by way of written notice.  In fact, his father
had highlighted the relevant
provisions of the sale agreement and the
two of them had discussed those provisions long before the disputed
consultation.
As already indicated, I am also of the view that
it is unlikely that the plaintiff had not known that he was signing a
cession
agreement, and that he would have needed advice about that.
It must be remembered that, on the plaintiff’s version,
the
defendant had received his instructions before the cession agreement
was signed, and it would border on the ridiculous to say
that the
defendant had already then somehow been made aware that documents
would not be read and that he would have to explain
their contents.
[93.]
Reverting
to the fact that the proceeds of the policy would only become
available late in 2014, and the requirement that a bank
guarantee be
furnished within 60 days after the exercising of the option, Mr Smit
argued that that it often happens that parties
do not furnish bank
guarantees within the agreed time, and that they then agree on an
extension of time within which to do so.
It was, however, never
the plaintiff’s evidence that, when instructing the defendant
to see to the immediate exercise of
the option, he foresaw this
complication and intended to deal with it by requesting an indulgence
from Sishen, and to argue that
it may have been his thinking, amounts
to mere conjecture.  There is no evidence that the plaintiff or
his father was unaware
of the requirement of a bank guarantee at the
time of the disputed consultation.  They must therefore be taken
to have been
fully aware of it, and such awareness would, against the
background of the plan to finance the purchase with the proceeds of a
policy which would only mature much later, militate against the
inference of an intention to instruct the immediate exercise of
the
option.
[94.]
No
evidence was presented about the progress of the railway line and on
the plaintiff’s version this issue was not even discussed

during the disputed consultation.  Once again the plaintiff and
his father must be taken to have been aware of the fact that
the farm
could not be bought back before the completion of the railway line
and, unless the railway line had already been completed
by the time
of the disputed consultation, they would have known that the farm
could not yet be bought back at that stage.
Confronted with the
question whether the consensus was that the option should be
exercised and the farm bought back immediately,
the “
officious
bystander
”,
being aware of the requirement regarding the railway line but having
no information on its progress, would not in my view
have responded:
“
we
did not trouble to say that; it is too clear
”
[27]
.
[95.]
Mr
Smit sought to get by these improbabilities by arguing that the
giving of the notice required in terms of the sale agreement
would
not yet have constituted the buying back of the farm, which could
then have taken place at a later stage, and that the bank
guarantee
would only be required then.  There is no merit in this
argument.  The provisions of clause 23.1.5 of the sale
agreement
are that the bank guarantee would have to be furnished within 60 days
after the exercise of the option by written notice;
not within 60
days of the conclusion of a new contract of sale
[28]
.
In any event the provisions of the sale agreement, also as regards
the issue of the railway line, are very clearly to the
effect that
not only the notice of the exercise of the right to buy back, but
also the actual buying back of the farm, could only
take place once
the railway line had been completed, and within 5 years of the
conclusion of the sale agreement.
[96.]
An
interpretation of the alleged instructions concerning the exercise of
the option (as opposed to its cession) to have been that
the
defendant would at some future time have taken steps to “
ensure
”
the exercise of the option also presents problems, on the
probabilities and on the plaintiff’s own evidence.
[97.]
What
steps should the defendant, on the understanding of both he had the
plaintiff, have taken to “
ensure
”
the exercise of the option? On the evidence of the plaintiff he had
not expected to hear from the defendant again after
the signing of
the “
document
”.
T
he
next thing that he expected to happen, was to be contacted by
Sishen
about
payment.  T
he
defendant could therefore on the plaintiff’s own version and
understanding for example not have been instructed, even tacitly
or
impliedly, to timeously remind the plaintiff of the expiry date, or
to advise him (at a later stage) of the requirement of written
notice
of the exercise of the option.
[98.]
In
my view it is in any event simply not possible to read a request or
an instruction to advise “
between
the lines
”
[29]
of the plaintiff’s evidence about what was said to the
defendant at the disputed consultation, as suggested by the plaintiff

in cross-examination.
[99.]
It
follows that, on both the plaintiff’s pleadings and his
evidence, there is in my view, at best for the plaintiff uncertainty

about what the defendant had according to him been instructed to do,
and at worst no proof on a preponderance of probabilities
that he
himself had given any instructions whatsoever in respect of the
option.
What
the plaintiff himself had according to his evidence actually said to
the defendant at the disputed consultation, could in my
view in any
event not be interpreted to have been anything more than, at best, an
instruction to see to the cession of the option
to the plaintiff.
I cannot see that one can in any manner read into the plaintiff’s
words a tacit or implied instruction,
let alone an express
instruction (as pleaded), to exercise the option, or to ensure the
exercise thereof by the plaintiff.
[100.]
If
the plaintiff himself did not know, at that time and on his own
evidence, what his father had meant by saying that a letter or

letters had to be written to Sishen, he could not possibly have
understood those words to have been a tacit or implied instruction
to
the defendant to exercise the option on behalf of the plaintiff, or
to ensure that the plaintiff exercised the option.
It is, as
already mentioned, in any event not the plaintiff’s case, on
the pleadings, that his father gave any such instruction.
His
claim is based on a mandate agreement between him and the defendant.
[101.]
Even
if it is assumed that the plaintiff had after the disputed
consultation been under the
bona
fide
impression that he himself was not required to do anything more in
order for the option to be exercised and for the farm to be
bought
back, the fact would remain that he had in cross-examination made the
concession that there would then have been a misunderstanding
about
what the defendant was supposed to do and what he himself had to do.
The required consensus and meeting of the minds
on the contents of
the mandate would have been absent and no enforceable mandate
agreement would have come into existence.
DUTY OF CARE
[102.]
As
already mentioned, the defendant is an attorney, as he was at all
times material hereto.  He commenced private practise
as an
attorney in 1997, after having worked as a prosecutor and a
magistrate from 1981.
[103.]
Before
considering what could reasonably have been expected of the defendant
and whether any omission on his part was wrongful,
I need to deal
with two points made by Mr Heyns.
Evidence of
reasonableness
[104.]
Mr
Heyns argued that, in the absence of evidence on what a reasonable
attorney would in the circumstances have done, it was not
open to Mr
Smit to argue that any omission on the part of the defendant was not
what could be expected from a reasonable attorney.
For this
proposition Mr Heyns relied on the following passage in the judgment
in
Steyn
NO v Ronald Bobroff & Partners
[30]
:
“
In the absence of clear
evidence to prove what a reasonable attorney in the position of the
respondent, faced with a similar case
under similar circumstances,
would have done, I am unable to conclude that the respondent failed
to act with the necessary care,
skill and diligence which would
ordinarily be expected from a reasonable attorney. It is axiomatic
that the conduct of a reasonable
attorney concerning a case that
he/she handles will primarily be determined, amongst others, by the
facts and circumstances of
the case, the investigations which had to
be done, the nature and extent of the injuries suffered and the
complexity of the matter.
It would in my view be unwise to attempt to
determine the conduct of a reasonable attorney in vacuo. As Van Zyl
eloquently stated
in his work The Judicial Practice of South
Africa ……. — 'the degree of negligence or
want of prudence,
or useless work, must depend upon the nature of
each case'.
”
[105.]
The
facts in the
Steyn
case are clearly distinguishable from those in the present matter.
The case of the appellant (plaintiff) in that matter was
that the
conduct of the respondent (defendant attorney) had to be “
measured
not against that of an ordinary reasonable attorney but that of a
'pre-eminent specialist personal injury attorney'”,
because
“
the
respondent had widely advertised itself as 'specialists in major
personal injury law' “,
and
that therefore the respondent “
should
be held to the standard which it professed to possess”
[31]
The
judgment referred to the case as “
not
one of the run-of-the-mill cases
”
and as “
complex
”
[32]
.
[106.]
Mr
Heyns did not explain why expert evidence would have been necessary
to prove that a failure of the nature relied upon by the
plaintiff in
this matter was unreasonable, and in my view this court would be able
and entitled to consider whether the omissions
relied upon in this
matter, would have been unreasonable.
Sustainability
of the alternative cause of action
[107.]
Mr
Heyns urged me to decide, on an
in
limine
basis, not to entertain the delictual alternative cause of action at
all, and argued that a plaintiff who alleges and relies upon
a
contract of mandate with a defendant attorney, cannot also rely on a
breach of a duty of care by that attorney, as such a delictual
claim
would be irreconcilable with the allegation, and evidence, of an
existing mandate.  In this regard Mr Heyns sought to
find
support, particularly, in the statement in the
Steyn
judgment
[33]
that it is
“
incongruous
..... to allege a breach of ..... written agreements …………………….

as the basis of ..... claims (which is clearly contractual) and
in
the same breadth
to rely on an
alleged
breach 'of the duty of care owed by the Defendant to the Plaintiff'
which is plainly a delictual claim.
”
(My
emphasis)
[108.]
In
the present matter the plaintiff’s allegations of a delictual
cause of action are clearly pleaded in the alternative, to
be
considered in the event that the contractual cause of action does not
succeed.  They are clearly not relied upon “
in
the same breadth
”
as the allegations of a contract of mandate.   It is not as
if the alleged breach of a duty of care is based on
a breach of the
alleged contract of mandate, or that the delictual relief is claimed
against the background of a “
contractual
nexus
”,
between the plaintiff and the defendant, which in terms of the
allegations of the alternative claim “
persisted
”
at the time of the existence of the duty of care
[34]
.
The recognition of the alternative cause of action in the present
matter would not “
have
the effect of eliminating provisions in the agreement
”
[35]
between the parties, because it is conditional upon a finding that
there in fact was no such contract.
[109.]
Mr
Heyns argued that a finding that no contract of mandate has been
proved would “
not
result in the erasure of the Plaintiff’s evidence that he in
fact provided an instruction
”.
Not surprisingly Mr Heyns did not refer to any authority for this
approach.  Alternative causes of action of
which the factual
basis would be different from that required to support the main cause
of action, is an everyday occurrence.
That is precisely the
purpose of such an alternative cause of action,
viz
to cater for the possibility that the evidence in support of the main
cause of action is not accepted.  The rejection of such
a
plaintiff’s evidence on the main cause of action cannot
non-suit him or her for purposes of an alternative cause of action

based on a different factual basis.  It is also not as if the
plaintiff in the present matter would, for the purposes of his

alternative cause of action, have had to present evidence which would
contradict his evidence in support of the main cause of action.

There is also no merit in this argument of Mr Heyns.
Pleadings
[110.]
In
his particulars of claim the plaintiff based the allegation of a duty
of care on,
inter
alia
,
allegations that the defendant had been aware of the facts:
110.1
That the plaintiff and his parents were lay persons as far as the law
was concerned;
110.2
That the plaintiff and his parents relied on the defendant “
to
ensure that the right to buy back …. was secured for the
Plaintiff and exercised in accordance with the provisions of
the
Agreement
”;
110.3
That he had been instructed to prepare an amended joint will which
would contain clear references
to the repurchase by the plaintiff,
and the intended manner of payment of the purchase price;
110.4
That the plaintiff had farmed there at the time and had intended to
continue “
after
the 5 year period recorded in the
Agreement
”;
and
110.5
That the plaintiff would suffer damages if the right was not
exercised timeously.
[111.]
It was
alleged that the defendant should have exercised reasonable care, and
therefore had a duty of care towards the plaintiff,
to:
111.1
“
ensure
”
that the option was exercised timeously and the farm bought back in
accordance with the sale agreement; and/or
111.2
Timeously and properly advise/inform the plaintiff
[36]
on what steps to take in order to exercise the right to buy back the
farm, so that plaintiff could exercise the option before the
expiry
date.
[112.]
It was
furthermore alleged that the defendant had wrongfully and
negligently:
112.1
Failed to “
ensure
”
that the option was exercised timeously and in accordance with the
sale agreement, by failing to provide Sishen or its attorneys
with
timeous written notice of the exercise of the right;
112.2
Failed to inform and/or advise the plaintiff on the obligation to
provide written notice of the exercise
of the option to Sishen.
[113.]
The
defendant denied all allegations of a duty of care and of the
negligent breach thereof.  In the alternative, and in the
event
of a finding that he did in fact have a duty of care and that he did
breach it, and that the plaintiff did suffer damages
as a result of
such breach, the defendant pleaded that there had been contributory
negligence on the part of the plaintiff, on
the basis that the
plaintiff had failed to contact or provide the defendant with
instructions in respect of the timeous exercise
of the option, which
the plaintiff could and should have done in the prevailing
circumstances
[37]
.
Conditional basis of
the alternative cause of action
[114.]
When
paragraphs 20 and 21 of the particulars of claim are read together,
it would seem that the alternative cause of action would
come into
play when it is found that the mandate relied upon as the main cause
of action had not been given to the defendant, but
that the plaintiff
had nevertheless indeed, with his parents, sought the defendant’s
advice “
during
April 2012
”
(presumably on the issue of the option).
[115.]
This
would mean that, if it is found that the plaintiff did not seek the
defendant’s advice on the option in April 2012, the
basis for
the delictual alternative cause of action would fall away (at least
partly); also because it is on the allegations in
the particulars of
claim apparently dependent upon knowledge that the defendant is
alleged to have acquired in such a consultation.
If the
plaintiff had never consulted the defendant about the option, and had
never been present when his parents consulted the
defendant about it,
on what other conceivable basis could the defendant have known or
suspected that the plaintiff himself was
actually relying on him to
“
ensure”
that
the option was “
secured
”
and “
exercised
”
[38]
?
[116.]
When
I took this up with Mr Smit in argument, he submitted that the
knowledge that the defendant had gained at the consultation
of 10
April 2012, the receipt of the Weavind & Weavind letter and the
plaintiff’s alleged presence, in the defendant’s
office,
when the cession agreement was signed would in any event have led to
the alleged duty of care on the part of the defendant.
[117.]
The
Weavind & Weavind letter and the plaintiff’s alleged
presence in the office of the defendant on the occasion of the

signing of the cession were not pleaded, in the particulars of claim,
as grounds for the coming into existence of the duty of care
[39]
.
In fact, when the defendant requested further particulars regarding
“
all
the facts and/or circumstances on which Plaintiff intends to rely in
support of the alleged coming into existence of (the) duty
of care
”,
the plaintiff’s response was that “
The
particularity provided in the particulars of claim (was) sufficient
for purposes of preparation for trial
”.
I will nevertheless proceed to consider whether the defendant could,
in the absence of both the mandate and the disputed
consultation,
have had a duty of care as alleged by the plaintiff.
Proximity
of relationship between defendant and plaintiff
[118.]
The
defendant says that he never had a consultation with the plaintiff as
far as the option was concerned, and that he did not regard
him as
his client for the purposes of the option.
[119.]
The
only file that was opened for purposes of the option, was opened in
his father’s name, at the consultation of 10 April
2012.
The plaintiff was not even present on that day.  The plaintiff’s
father paid for that consultation, and
the letters which the
defendant thereafter addressed to Sishen concerning the issue of the
option, were addressed to and/or on
behalf of the plaintiff’s
father or his parents, and not one on behalf of the plaintiff.
[120.]
I
have already found that the disputed consultation has not been proven
on a balance of probabilities.  It must therefore be
accepted,
for present purposes, that the plaintiff had never been present at a
consultation where the option, its cession and its
exercise were
discussed with the defendant.  Even if the disputed consultation
had taken place, and even if the plaintiff
was correct as regards
what he had said there, the fact would remain that he would have been
there as a son of the defendant’s
clients (as far as the option
was concerned), and as a client, and that he had on his own version
played a secondary role there
and had mainly let his father do the
talking.
[121.]
All
of this is consistent with the plaintiff and the defendant never
having been in a client/attorney relationship for the purposes
of the
option.  The fact that the plaintiff was, until September 2012,
a client of the defendant in respect of the debt owed
to him by Mr
Theo Van As, makes no difference to this.
[122.]
However,
Mr Smit referred to,
inter
alia
,
Aucamp
and Others v University of Stellenbosch,
where a duty of care was found to exist towards a disappointed
beneficiary, even when there was “
no
privity of contract or any other direct legal relationship between
”
the disappointed
beneficiary and the person who had caused the damage, and in which
reference was made to the following description
of the relevant
criteria in
Caparo
Industries plc v Dickman and Others
[1990] UKHL 2
;
[1990]
1 All ER 568
(HL):
“
What emerges is that,
in
addition to the foreseeability of damage
,
necessary ingredients in any situation giving rise to a duty of care
are that there should exist between the party owing
the duty and the
party to whom it is owed a
relationship
characterised by the law as one of ''proximity'' or ''neighbourhood''
and that the situation should be one in which the court considers it
fair, just
and reasonable that the law should impose a duty of a given scope
on the one party for the benefit of the other. But it is implicit in
the passages referred to that the concepts of proximity and

fairness embodied in these additional ingredients are not
susceptible of any such precise definition as would be necessary
to
give them utility as practical tests, but amount in effect to little
more than convenient labels to attach to the features of
different
specific situations which, on a detailed examination of all the
circumstances, the law recognises pragmatically as giving
rise to a
duty of care of a given scope
.
”
[40]
(My
emphasis)
.
[123.]
The
existence of such a duty of care on the part of an attorney has not
only been recognised where the third party was a disappointed

beneficiary
[41]
, but also
where it was not and where the third party was not even an existing
client of the attorney
[42]
.
[124.]
The
question is whether there was a proximity of relationship between the
plaintiff and the defendant as far as the option is concerned,

considered on the basis that the plaintiff had never given the
defendant any instruction regarding the option, that he had not
even
been present when his father gave such instructions to the defendant
and that, in any event, those instructions were limited
to the
preparation of a cession agreement and the notifying of Sishen of the
intention to cede the option?
[125.]
When
the cession agreement had been drawn up and signed, and Sishen had
been notified accordingly, the defendant’s instructions
(from
the plaintiff’s father) were finalised as far as the option was
concerned, and any duty of care that he may have had
towards the
father or both parents as regards the option, came to an end then.
At the very latest this would have been the
position after the
defendant had brought the Weavind & Weavind letter to the
attention of the plaintiff’s father, an
issue to which I will
revert.  By the time that the option was supposed to be
exercised, towards the end of the lease period,
there existed no
attorney/client or fiduciary relationship between the defendant and
the plaintiff’s father/parents, as regards
the issue of the
option that could be “
extended
”
to any relationship between the defendant and the plaintiff
[43]
.
A period of almost two years had by then expired since the defendant
last had any form of contact with the plaintiff.
The fact that
the plaintiff had earlier been a client of his in respect of an
unrelated issue, and that the defendant knew that
his erstwhile
client was the cessionary and desired to exercise the option, could
not have created a duty of care of the nature
and scope alleged by
the plaintiff, on the part of the defendant.
[126.]
I
have already found that it has not been proved on a balance of
probabilities that the plaintiff signed the cession agreement in
the
defendant’s office and presence, but even if he had, this would
not in my view had created any proximity of relationship
between him
and the defendant as far as the exercise of the option (as opposed to
its cession) was concerned.
[127.]
The
defendant had obviously been aware of the intention of the parents,
his clients, that their son, the plaintiff should become
the owner of
the farm, but I fail to see how that knowledge could have created or
contributed to the coming into existence of a
duty of care towards
the plaintiff, or a proximity of relationship with him.
[128.]
Mr
Smit repeatedly referred to the Weavind & Weavind letter as
having been a “
red
flag
”
to the defendant, and potentially to the plaintiff, had it come to
his attention.
128.1
If the defendant had not been mandated to ensure the exercise of the
option (but only to see to the
cession of the option) and had never
received any instructions from the cessionary (the scenario upon
which the alternative claim
must be considered), why should a
statement that the option had not yet been exercised have caused the
defendant any alarm, or
have caused him to bring this fact to the
attention of the cessionary himself?
128.2
I have already alluded to the plaintiff’s conflicting evidence
on when exactly he had expected the
defendant to take steps to ensure
the exercise of the option.  If the intention was for the option
to be exercised towards
the end of the lease period, and in 2014, a
statement in June 2012 that the option had not yet been exercised
would not have come
as any surprise to him.
128.3
It was common cause that the plaintiff’s father had received
the copy of the Weavind & Weavind
letter which the defendant had
sent him in June 2012.  His subsequent request for copies of the
defendant’s two letters
to Sishen was in all probability
prompted by him having become aware of the contents of the Weavind &
Weavind letter. On the
plaintiff’s version his father had never
brought the letter to his attention.  It could be argued that
the letter, and
the statement therein to the effect that the option
had not yet been exercised, could not have come to the plaintiff’s
father
as a shock or a surprise, because otherwise he would in all
probability immediately have informed the plaintiff of it.  Had

he too been under the impression that the defendant had already done
what was necessary, and that the document that they had already

signed had constituted the exercise of the option, he would in all
probability also have taken it up with the defendant without
delay.
128.4
It follows that I am of the view that the Weavind & Weavind
letter also could not be said to have caused
or contributed to the
alleged duty of care, or any proximity of relationship between the
plaintiff and the defendant.
[129.]
I
will nevertheless proceed to consider the scope and fairness of the
duty alleged by the plaintiff and the reasonable foreseeability
of
damages in the circumstances of this case, issues which are similar
to those that are relevant when considering whether pure
economic
loss should in a particular case be held to have been caused
wrongfully.
Scope and fairness
of legal duty alleged by plaintiff
[130.]
As
regards the scope and fairness of a legal duty to avoid damages, in
cases of pure economic loss, the following was stated in
the
Aucamp
[44]
case referred to above:
“
There is no numerus
clausus of factors to be taken into consideration in assessing
whether or not the defendant was
able to avoid reasonably
foreseeable damage by taking reasonable steps to avoid it. Neethling
at 290 - 302 suggests, inter
alia:
(a)
whether the defendant
knew or subjectively foresaw that his negligent conduct would cause
damage to the plaintiff;
(b)
whether reasonably
practical steps could have been taken by the defendant to prevent
such damage;
(c)   whether
the defendant possessed, or professed to possess, special skill,
competence and knowledge;
(d)
whether
special protection against economic loss was required;
(e)
whether a finding in
favour of the plaintiff would open the floodgates and lead to a
multiplicity of actions or indeterminate
liability which would
have severe social consequences;
(f)
whether a statutory
provision requires the prevention of economic loss;
(g)
whether
the plaintiff is able to protect himself against potential economic
loss;
(h)
whether the defendant
can protect himself against such loss, for example by acquiring
adequate insurance cover
.
”
[131.]
The
court in the
Aucamp
case had the following to say about the “
value
judgment
”
that a court has make in considering whether conduct was wrongful:
“
In doing so it must
weigh up the interests of the parties and of the community at large
against the background of the relevant facts
and circumstances. In
addition it must strive, impartially and objectively, to apply the
values of justice, fairness and reasonableness,
while taking
into account considerations of good faith (bona fides) and good
morals (boni mores), otherwise known as public
policy reflecting the
legal convictions of the community
.
”
[45]
[132.]
Against
this background the plaintiff’s allegation of a duty of care on
the part of the defendant, and the breach thereof,
as set out in
paragraphs [111] and [112] above can now be considered.
[133.]
Here
too it would in my view be important exactly when the defendant
should reasonably have taken the steps pleaded by the plaintiff.

I have already dealt with the plaintiff’s pleadings and
evidence regarding when the defendant was supposed to have acted
in
terms of the alleged mandate.  It is telling that, when the
defendant requested further particulars about when the defendant

should have taken steps to ensure that the option was exercised and
when the defendant should have taken steps to buy back the
farm, the
questions were met with the response “
On
or before 22 March 2014
”,
which according to the plaintiff was the expiry date for the exercise
of the option.
[134.]
When
I attempted to clear this up with Mr Smit in argument, his response
was that it is the plaintiff’s case that there was
a
misunderstanding about what it was that he had signed, that this
misunderstanding had resulted from the defendant’s failure
to
explain the contents of the document to the plaintiff when he signed
it, that the defendant should also then have explained
to the
plaintiff that his written authorisation would be required for the
defendant to exercise the option and, as already mentioned,
that the
plaintiff’s delictual claim is accordingly not premised on
something that the defendant should have done after the
signing of
the cession agreement.
[135.]
Needless
to say this is not how the plaintiff’s delictual claim was
pleaded.  If this had been intended to be the plaintiff’s

case, one would have expected pertinent allegations to this effect in
the particulars of claim.  I will nevertheless consider
the
issue of a duty of care from this angle too.
[136.]
Furthermore
it is very difficult to understand how his signing of a document of
which the contents were unknown to him, would have
caused the
plaintiff to believe that all that was necessary for purposes of the
option, had by signing that document been done.
Failure to provide
written notice of the exercise of the option
[137.]
On
both the plaintiff’s pleadings and his evidence it appeared
that according to him the manner in which the defendant should
have
“
ensured
”
that the option was exercised, was to have “
provided
Sishen, alternatively Sishen’s attorneys with written notice of
the Plaintiff’s exercise of the right to buy
back the farm in
accordance with the terms of the Agreement
”
[46]
,
in other words to have exercised the option on the plaintiff’s
behalf.
[138.]
In
as much as such a notice would have amounted to the acceptance of an
offer to sell, and was intended to lead to the conclusion
of an
agreement to buy back the farm at the fixed price offered in the sale
agreement, the defendant would, as already pointed
out, have needed
the written authorisation of the plaintiff, and an oral mandate would
not have sufficed.
[139.]
I
have already dealt with the fact that the defendant would not have
known when the plaintiff would be able to furnish the bank
guarantee,
whether the railway line had been completed or when it was expected
to be completed and, accordingly, when exactly the
option could be
exercised and the farm bought back.  Even if the plaintiff’s
case was not that the defendant should
have exercised the option and
bought back the farm on his behalf, the question would remain what
more the reasonable attorney,
with only the information that had been
made available to the defendant, would and should have done in the
circumstances to ensure
the re-purchase of the farm.
[140.]
What
remains to be considered is the alleged duty and failure to advise
and inform the plaintiff, as set out above
[47]
.
Failure
to advise/inform
[141.]
In
my view it did not require knowledge of the law, “
special
skill, competence and knowledge
”
or
“
special
protection
”
[48]
to understand that, for the option to be exercised in accordance with
the provisions of the sale agreement, it would have to be
exercised
by way of written notice to Sishen, within the period stipulated in
the sale agreement.
[142.]
The
relevant provisions in the sale agreement are very clear on these
requirements.  When the copy of the sale agreement was
made
available to the defendant, those provisions had already been marked,
underlined and highlighted by the late Mr Van As.
The plaintiff
had, on his own version and as already mentioned, discussed those
provisions with his father at length.  It
was in any event not
the evidence of the plaintiff that either he or his father had not
understood the requirements of the sale
agreement in this regard.
[143.]
The
defendant had no reason to suspect that the parents, or for that
matter the plaintiff as cessionary, might not be aware of or

understand those provisions, and that any of them would need his
assistance or advice in giving such notice in writing and timeously.
[144.]
If the
parents or the plaintiff had in actual fact not understood those
provisions, or had needed advice or information about them,
nothing
had prevented them from seeking the defendant’s assistance and
advice.  It is not really relevant to the plaintiff’s

claim, but it is clear that his parents had not, when they consulted
the defendant on 10 April 2012 and when the issue of the option
was
discussed in the context of the need for it to be ceded to the
plaintiff, sought the defendant’s advice on how or when
the
option could be exercised.  Even on the plaintiff’s
evidence about what was said at the disputed consultation, he
could
not be said to have sought the defendant’s advice regarding how
and when the option could be exercised in that consultation.
[145.]
I
have already dealt with the suggestion by the plaintiff that he had
signed the cession agreement without knowing what it was that
he was
signing, and that he had believed that it somehow constituted
whatever he needed to sign for the exercise of the option,
but the
fact of the matter is that, on the plaintiff’s own description
of the circumstances under which that document had
been signed,
nothing had prevented him from studying its contents and/or seeking
the defendant’s advice thereon, either before
or after having
signed it.  He did not even, on his own evidence, request a copy
of it at any time relevant to the present
enquiry.  It is not
clear on the evidence whether the copy of the defendant’s
letter of 26 April 2012 (to Sishen) that
had been sent to the
plaintiff’s father had included a copy of the cession
agreement, but if it did, he could not have been
taken aback to see
that the document that they had signed was only the cession
agreement, otherwise he would have immediately taken
it up with the
defendant and/or the plaintiff.
[146.]
Mr
Smit posed the rhetorical question whether a layman would know the
difference between a cession agreement and a document or notice

exercising an option, but it was never the plaintiff’s evidence
that he had read the document, at any time relevant to this
issue,
and that he had not understood its contents, let alone had understood
its contents to have constituted the exercise of the
option.
[147.]
If
advice was not required or sought on when or how to exercise the
option, what is it then that the plaintiff needed to be advised
on or
informed about?  Is it suggested that the defendant should have
reminded the plaintiff or his parents at some time,
towards the end
of the lease period, that the expiry date for the exercise of the
option was drawing closer and that it was time
to exercise the
option?  Surely this could not reasonably have been expected of
the defendant.  Was he supposed to foresee
that the plaintiff or
his parents may lose track of time and forget about the expiry date,
and to set a reminder for him to contact
them in this regard at some
future point?  Such a finding would in my view impose an unfair
and unreasonable burden on the
defendant, given the facts of this
case.  In
S
v Bochris Investments (Pty) Ltd and Another
[49]
it was reiterated that “
The diligens
paterfamilias does not have 'prophetic foresight'
”
and the following words in
Overseas
Tankship (UK) Ltd v Morts Dock & Engineering Co Ltd (The Wagon
Mound)
[1961] UKPC 1
;
1961
AC 388
(PC) ([1961]
[1961] UKPC 1
;
1 All ER 404)
at 414G-H were quoted with
approval:
“
After
the event, even a fool is wise. But it is not the hindsight of a
fool; it is the foresight of the reasonable man which alone
can
determine responsibility.
”
In
any event, according to Mr Smit the plaintiff’s case is, as
already pointed out, not that the defendant should have taken
steps
at some future time.
Was plaintiff
vulnerable to such damages or could he have protected himself
?
[148.]
How
could the plaintiff have relied on the defendant to exercise the
option on his behalf, or to advise him on when to exercise
it
himself, if he had not provided the defendant with instructions
regarding when a bank guarantee could be ready (so that care
could be
taken that the bank guarantee could be furnished within 60 days after
the exercise of the option, as required by the sale
agreement), or
about the completion of the railway line?  The only conceivable
way that there could be any talk of such reliance
would be where the
defendant would have known when to exercise the option or when the
plaintiff could exercise the option, having
regard to the
availability of a bank guarantee and the question whether the railway
line had been completed.
[149.]
It
would therefore not have been reasonable of the plaintiff, even if he
and his father had conveyed to the defendant what he described
in his
evidence at the disputed consultation, to sit back and do nothing
further as the expiry date for the exercise of the option
drew
closer.  Those “
instructions
”
would not by any stretch of the imagination have been sufficiently
detailed for the plaintiff to have reasonably believed
that nothing
further was required from him in the course of the next approximately
23 months to the expiry date.
[150.]
This
would obviously even more so be the case if the disputed consultation
and those “
instructions
”
are thought away.  Even if the plaintiff had in such
circumstances for some reason laboured under the impression that
the
defendant was somehow going to see to the exercise of the option, it
would not have been the doing of the defendant.
The defendant,
having completed the only instructions he had ever held in respect of
the option (the cession agreement), had absolutely
no reason to
suspect that the plaintiff may be under the impression that the
defendant would exercise the option on his behalf,
or that the
defendant would initiate contact with him in that regard.  On
the evidence the only communication that the plaintiff
had with
anybody about the option and its exercise was with the plaintiff’s
parents, and more specifically with his father.
[151.]
On
the plaintiff’s own evidence, and once again even if it was to
be assumed that the disputed consultation had taken place
as
described by the plaintiff, he could not have been under the
impression that the defendant was going to advise or inform him
about
the option, because he says that he did not expect to hear from the
defendant again.  Even if he did, however, expect
the defendant
to take further steps towards the exercising of the option or to
contact him in that regard, it could reasonably
have been expected of
the plaintiff, at the very least, to have made enquiries at some time
before the expiry of the option; even
if only to establish when he
had to furnish the bank guarantee.  If he had, the error of his
belief (or at the very best for
him the misunderstanding) would have
been discovered in time for the option to be exercised and for him to
avoid the damages.
[152.]
The
plaintiff can therefore not on any version reasonably be considered
to have been ”
vulnerable
”
to the risk that the option could expire without being exercised.
The “
vulnerability
to risk
”
consideration, as a consideration relevant to the enquiry into the
question of wrongfulness (as opposed to the question
of negligence)
was discussed in
Cape
Empowerment Trust Ltd v Fisher Hoffman Sithole
[50]
:
“
But the consideration
which, in my view, weighs most heavily against the imposition of
legal liability on FHS in the circumstances
of this case is the one
that has become known, in the context of wrongfulness, as the
plaintiff's 'vulnerability to risk'. As developed
in our law, ......,
vulnerability to risk signifies that the plaintiff could not
reasonably have avoided the risk of harm by other
means. What is now
well established in our law is that a finding of non-vulnerability on
the part of the plaintiff is an important
indicator against the
imposition of delictual liability on the defendant .............. The
role of this consideration is best
illustrated, I think, by McHugh J
in Perre v Apand Pty Ltd
[1999] HCA 36
;
(1999) 198 CLR 180
(HC of A) supra
para 118:
'Cases where a plaintiff will
fail to establish a duty of care [or, wrongfulness in the parlance of
our law] in cases of pure economic
loss are not limited to cases
where imposing a duty of care would expose the defendant to
indeterminate liability or interfere
with legitimate acts of trade.
In many cases there will be no sound reason for imposing a duty on
the defendant to protect
the plaintiff from economic loss where it
was reasonably open to the plaintiff to take steps to protect itself.
The vulnerability
of the plaintiff to harm from the defendant's
conduct is therefore ordinarily a prerequisite to imposing a duty. If
the plaintiff
has taken or could have taken steps to protect itself
from the defendant's conduct and was not induced by the defendant's
conduct
from taking such steps, there is no reason why the law
should step in and impose a duty on the defendant to protect the
plaintiff
from the risk of pure economic loss.'
“
[153.]
It
has not been proved on a balance of probabilities that the defendant
should reasonably have foreseen that the plaintiff may fail
to
exercise the option timeously and that he would suffer damages, or
that the plaintiff’s complete inaction was somehow
induced by
the defendant.
The Weavind &
Weavind letter
[154.]
Mr
Smit, both in cross-examination and in argument, made much of the
fact that the defendant had not taken steps to have the Weavind
&
Weavind letter brought to the attention of the plaintiff, either by
furnishing a copy thereof to him or by prompting and
enabling Weavind
& Weavind to do so.  It was put to the defendant that this
is what a prudent and reasonable attorney
would have done and that
his failure to do so was negligent.  As I have already pointed
out, the plaintiff was not a client
of the defendant in respect of
the option, and the defendant would in any event not have had any
reason to have believed or suspected
that the contents of that letter
would have come to the plaintiff as a surprise or that it would have
prompted him to take action
that he would not otherwise have done.
It must be borne in mind that “
Ex
post facto knowledge is irrelevant
”
for present purposes and that the court “
cannot
approach the case as an armchair critic with the benefit of
hindsight
”
[51]
.
However, even if it could be said to have been negligent of the
defendant not to have done so, that would not have been
decisive in
the enquiry into wrongfulness, and a duty of care, on the part of the
defendant.  The enquiries into wrongfulness
and negligence must
not be confused, and the existence of negligence would not be
decisive in the enquiry into the existence of
wrongfulness.  In
cases where pure economic loss was caused by an omission,
wrongfulness is not presumed and “
Considerations
of public and legal policy (would) dictate
”
whether
the omission should attract legal liability
[52]
.
[155.]
Imposing
on the defendant a duty such as that claimed by the plaintiff would
in my view in the circumstances not be reasonable and
fair, and I do
not believe that the “
legal
convictions of the community would undoubtedly clamour for liability
to exist in these circumstances
”
[53]
.
COSTS
[156.]
It
follows that I have concluded that the plaintiff’s claim on the
alternative delictual cause of action can also not succeed.
[157.]
I
can conceive of no reason, and none has been suggested, why costs
should not follow this result.
ORDER
[158.]
In the
premises the following order is made:
BOTH THE PLAINTIFF’S
CLAIMS ARE DISMISSED WITH COSTS.
C
J OLIVIER
JUDGE
NORTHERN
CAPE DIVISION
For the
plaintiff:

ADV. J G SMIT
(oio
Cliffe
Dekker Hofmeyr Inc.
c/o
Duncan
& Rothman Inc.
)
For the defendant:
ADV. G F HEYNS
(oio
Gildenhuys
Malatji Inc.
c/o
Engelsman
Magabane Inc.
)
[1]
Mr GC Van As passed away during the course of the present
litigation.
[2]
Compare
Brandt v Spies
1960 (4) SA 14
(OK) at 16F-17C
[3]
Compare
Mc Williams v First Consolidated Holdings (Pty) Ltd
1982 (2) SA 1
(A) at 6C;
Africa Solar (Pty) Ltd v Divwatt (Pty)
Ltd
2002 (4) SA 681
(SCA) para [33];
Du
Preez & another v NWK Ltd & another
[2005] JOL 14824
(B) para [93]
[4]
Compare
Cape Town Municipality v Bakkerud
2000 (3) SA 1049
(SCA) para’s [7] to [17]
[5]
Compare
Stellenbosch Farmers’ Winery Group Limited and
Another v Martell et Cie and Others
2003 (1) SA 11
(SCA) para
[5]
[6]
Which address differed from the one to which the initial letter of
demand had been sent.
[7]
It appears that the consultation referred to in the plaintiff’s
further particulars, as having occurred “
during April
”
and as being the consultation where the plaintiff’s parents
had instructed the defendant to see to the cession,
is in fact this
consultation.
[8]
“
Beleggings soos op 6 April 2012
”.
[9]
“
Gesamentlike Testament
”.
[10]
Which would explain the erroneous amount of this outstanding balance
stated in the letter of demand of 18 May 2012, and
about which
the defendant was taken to task in cross-examination.
[11]
“en dan”
[12]
“
Mnr Van As – Trust
”
[13]
See paragraph 27.2 above.
[14]
“
SESSIE VAN REGTE INGEVOLGE KOOPOOREENKOMS
”
(“CESSION OF RIGHTS IN TERMS OF PURCHASE AGREEMENT”).
[15]
“CESSIONARY”.
[16]
Particulars of claim: para 10.1
[17]
Particulars of claim: para 10.2
[18]
In other words both of them.
[19]
In other words the instructions regarding the waiver/cession.
[20]
The date 20 April 2012 presumably being a reference to the date on
which the plaintiff and his parents had, on the plaintiff’s

version, also been at the defendant’s office to sign the
cession agreement.
[21]
In other words instructions in respect of not only the
waiver/cession of the option, but also the timeous and effective
exercising
of the right to buy back the farm.
[22]
It became clear in the course of the trial - and there does not seem
to be a dispute about this - that the consultation referred
to in
the plaintiff’s further particulars as the one where his
parents instructed the defendant to effect the waiver or
the
cession, is in fact the consultation of 10 April 2012, to which I
have already alluded.
[23]
See paragraphs [64] and [65] above.
[24]
“
10 The Defendant was instructed and mandated to:
10.1 ……………..;
10.2 do all things necessary to ensure that the farm is
legally and effectively bought back by the Plaintiff by ensuring
that
the right to buy back the farm is timeously and effectively
exercised in accordance with the terms of the Agreement
”
[25]
Compare
Stellenbosch Farmers’ Winery Group Limited and
Another v Martell et Cie and Others
supra
[26]
68 of 1981; Compare
De Ujfalussy v De Ujfalussy
1989 (3) SA
18
(A
);
Le Roux and
another v Nel and another
[2016]
JOL 37322
(SCA);
Exis Eiendomme
(Edms) Bpk v Bezuidenhout
[1972] 1
All SA 598
(T),
1972 (1) SA 559
(T);
Admin
Estate Agents (Pty) Ltd t/a Larry Lambrou v Brennan
1997 (2) SA 922 (E)
[27]
Maphango and Others v Aengus Lifestyle Properties (Pty) Ltd
2011 (5) SA 19
(SCA);
[2011] 3 All SA 535
(SCA) para 17
[28]
Insofar as this may have been required in terms of the sale
agreement, which is unnecessary to decide; Compare
Jacobs NO v
Malan
1998 JDR 0657 (O).
[29]
Which would in any event not have been an express instruction.
[30]
2013 (2) SA 311
(SCA) para [27]
[31]
Ibid
, para [20]
[32]
Ibid
, para [26]
[33]
Ibid
, para [12]
[34]
Lillicrap
,
Wassenaar
& Partners v Pilkington Brothers
(
SA
)
(
Pty
)
Ltd
1985 (1) SA 475(AD)
at 500F-G
[35]
Nortje v Fakie
[2011] JOL 27101
(KZP) para [13]
[36]
In paragraph 22 of the particulars of claim it was alleged that the
defendant should also have advised the parents on this.
This
could obviously not be correct.  By then the parents had ceded
the option to the plaintiff, and they would therefore
not have been
able to exercise it.  Any remaining duty of care in this regard
towards them would in any event not assist
the plaintiff in proving
a duty of care towards him.  The same applies to the reference
to the plaintiff’s parents
in paragraph 21.3 of the
particulars of claim.
[37]
The issue of contributory negligence was not, however, really
pursued in evidence or in argument.
[38]
See paragraph 21.3 of the particulars of claim.
[39]
Compare
Hawker v Prudential Assurance Co of
South Africa Ltd
1987 (4) SA 442
(C) at 449E-451A;
Knop v
Johannesburg City Council
1995 (2)
SA 1
(A) at 27
[40]
2002 (4) SA 544
(C) para’s [81] and [88]
[41]
See
Pretorius en Andere v McCallum
2002 (2) SA 423
(C);
Jowell v Bramwell-Jones and Others
1998 (1) SA 836 (W)
[42]
See
Du Preez and Others v Zwiegers
[2008] ZASCA 42
;
2008 (4) SA 627
(SCA);
Compare also
Hirschowitz Flionis v Bartlett and Another
2006
(3) SA 575 (SCA)
[43]
Aucamp and Others v University of Stellenbosch,
supra
,
para [92]
[44]
Ibid
, para [69]
[45]
Ibid
, para [68]
[46]
Paragraph 24.1 of the particulars of claim.
[47]
In paragraphs 111.2 and 112.2.
[48]
Aucamp and Others v University of Stellenbosch,
supra
,
para [69] (c) and (d)
[49]
1988 (1) SA 861 (A)
[50]
2013 (5) SA 183
(SCA) para [28]
[51]
Imvula Quality Protection v Loureiro
2013 (3) SA 407
(SCA)
para [28]
[52]
Ibid
, para [21]
[53]
Hirschowitz Flionis v Bartlett and Another,
supra
,
para [30]