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[2018] ZAFSHC 158
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Van der Meulen and Another v Joubert and Another (2777/2016) [2018] ZAFSHC 158 (18 October 2018)
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Case
number: 2777/2016
In
the matter between:
NICOLAAS
JOHANNES PETRUS VAN DER
MEULEN
1
ST
Plaintiff
CAROLINA
JOHANNA VAN DER
MEULEN
2
nd
Plaintiff
(h/a
SMALDEEL BOERDERY)
and
PIETER
JOUBERT
1
ST
Respondent
PLATBERG LEWENDE
HAWE
BK
2
nd
Respondent
JUDGMENT BY:
MHLAMBI
J,
HEARD ON:
09, 10 and 12 OCTOBER 2018
DELIVERED ON:
18 OCTOBER 2018
MHLAMBI,
J
[1]
The
plaintiffs, trading in partnership as
“
Smaldeel Boerdery”,
sued
the defendants for the payment of the amounts of R 1 026 000.00
and R 76 413.20. The claims were based on an
alleged oral
agreement entered into at Harrismith on 19 February 2016 between
Johan Van Der Meulen, the plaintiff’s representative
and second
defendant for the purchase, by the plaintiffs, of hundred cows and
calves from the second defendant.
[2]
The defendants resisted the claims alleging that Johan Van Der Meulen
instructed the second defendant (as represented by the
first
defendant) to act as an agent for the plaintiffs and to look for cows
and calves for them to purchase and that such mandate
was duly
executed.
[3]
At the inception of the trial, an amendment of the particulars of
claim was sought and granted in terms of which prayers 1 and
2 were
amended to read R 639,000.00 and R 52 413.00 respectively.
The plaintiffs’ case relies on the testimony
of three
witnesses, namely the first plaintiff, Lieutenant Colonel Odendaal
and the first plaintiff’s brother and representative
in the
purchase transaction, Johan Van Der Meulen. The defendant closed its
case without leading any evidence.
[4]
The identity of the defendants is undisputed and it is common cause
that the plaintiffs paid to the second defendant the amount
of R
1,026,000.00 for the cows and calves on 19 February 2016 and were
issued with a tax invoice by the second defendant as proof
of
payment. The cattle were delivered to the plaintiffs at Harrismith on
26 February 2016. On or about 18 March 2016, the South
African police
attached and removed the said cattle from the plaintiffs’ farm
as property alleged to have been stolen.
[5] The issues to be
decided are:
4.1 Whether an oral
agreement existed between the plaintiffs and the second defendant for
the purchase of the cattle;
4.2
Whether the defendant(s) were the plaintiffs’ agent.
[6]
Mr Nicolaas Johannes Petrus Van Der Meulen testified that he was a
farmer and in partnership with his wife, the second plaintiff,
conducted a farming enterprise mostly in cattle known as
“
Smaldeel
Boerdery”
at Hoopstad. As the
land at Hoopstad became dry, they leased a tract of land at
Harrismith, which was later managed by the first
plaintiff’s
brother, Johan Van Der Meulen, for farming purposes. The plaintiffs
needed cattle on this farm. The first plaintiff’s
brother,
Johan, arranged with Platberg Lewende Hawe for the purchase of
hundred cows and calves for which the plaintiffs paid R
1,026,000.00.
He did not know the owner of the cattle. The cattle bought were
removed from the plaintiffs’ possession by
the police during
March 2016 as it was alleged that they were stolen. The thief in that
case was convicted and sentenced.
[7]
His testimony is to the effect that Johan Van Der Meulen suggested to
him that Johan’s friend, the first defendant, act
as an agent
for the plaintiffs and that, after 2013, they had done some
transactions with the first defendant as agent. He confirmed
under
cross-examination the correctness of the information furnished by the
plaintiffs in their further particulars dated 27 March
2017 that
“
Eisers
het Eerste verweerder gemagtig om honderd koeie en kalwers vir Eisers
te kry om aan te koop”
[1]
.
He,
the first plaintiff, did not have discussions with the defendants as
his brother had the mandate to do so. He was sent cellular
phone
photos of the cattle whereafter he authorized an electronic payment
for the purchase price. He deposed to an affidavit to
the South
African police in relation to the impounded cattle. This affidavit
was admitted in evidence as exhibit “B”.
In this
affidavit to Lieutenant Colonel Odendaal, he referred to the first
defendant on three occasions as “
veeagent”
or
agent. On being confronted with this reference to the first defendant
as an agent, he said that the police suggested the word.
He had a
difficult time during cross-examination to explain why he used the
word in his statement. He conceded that he did mention
the word to
the police officer who took his statement. The plaintiffs received
money and certain assets from the police in reduction
or part
compensation of the purchase price paid to the second defendant. The
money and assets were attached from the thief who
was arrested by the
police.
[8]
Lieutenant Colonel Odendaal testified that he was attached to the
stock theft unit at Vrede. He was involved in a criminal
investigation that established that the cattle found in the
plaintiff’s possession were the property of a certain doctor
Schutte of the farm Saaihoek. He attached 99 cows and 99 calves. A
certain Liebetrau was arrested in connection with the theft of
these
cattle at a Newcastle butchery where he had bought shares in the
business. An amount of R 182,800.00, a Nissan Navarra vehicle
and
furniture, bought by the said Liebetrau, were confiscated by the
police and later handed over by them to the plaintiffs. The
total
value handed over to the plaintiffs as a result of the confiscation
was the amount of R 370,000.00. He, the colonel, was
appointed a
curator in the matter. During cross-examination he confirmed that
Liebetrau was already sentenced and one Gyser, a
co-perpetrator,
stood arraigned on the same charges and the matter was as yet not
finalized. He confirmed that he wrote in his
handwriting the first
plaintiff’s statement which was admitted in evidence as exhibit
“B”, being the first plaintiff’s
statement dated 18
March 2016 and which formed part of exhibit “A” on pages
7 to 9.
[9]
A brief summary of Johan Van Der Meulen’s evidence was that the
first defendant was his neighbour in a townhouse complex
when the
said defendant worked at Vleissentraal at Harrismith during 2009.
They did business together and speculated in calves
and communicated
frequently. He phoned the first defendant and inquired whether he did
not have cattle immediately available for
purchase. The first
defendant informed him a day later that cattle were available
at Newcastle and forwarded him photos of
cows and calves available. A
price was negotiated and the witness expressed his surprise that such
a quantity could be obtained
from one person. The reason advanced by
the first defendant was that the lease agreement of the supplier of
the cattle had expired.
He confirmed that the first defendant acted
as an agent. During cross-examination he confirmed that he regarded
the first defendant
as his friend and that he did not know whether he
had any cattle at that stage. He did not ask him whether he had
cattle on the
farm. The first defendant informed him that he would go
look for cattle and speak to the sellers. He was himself the first
plaintiff’s
agent and conceded that the first defendant acted
as the plaintiffs’ agent. He knew that the cattle that were
bought were
not first defendant’s; he could therefore not buy
them from him. He conceded that the tax invoice, which was marked
annexure
“A” to the summons and issued to Smaldeel
Boerdery by Platberg Lewende Hawe, was but proof of payment. He
conceded
that most of the time the identity of the sellers was not
known to the buyers as the agents chose not to disclose the identity
of the suppliers of cattle in order to protect the agents’
business.
[10]
It was submitted on behalf of the plaintiffs that the main question
which was to be decided was whether the second defendant
should be
held liable for the plaintiffs’ loss on the basis as set out in
the plaintiffs’ particulars of claim. Counsel
conceded in his
oral submissions that initially the agreement between the parties was
that of agency and that the second defendant
could only be held
liable when it was found that it was the seller. However, it was
submitted that the plaintiff’s case was
based on a warranty
against eviction as the cattle were taken away from the plaintiffs.
This argument appears to be faulty as correctly
conceded by the
plaintiffs’ counsel during the oral submission; as such an
argument presupposed a valid agreement between
the parties. In order
to prove such an agreement, counsel, in both written and oral
submissions, argued that
“
the
agreement of sale”
[2]
relied
upon by the plaintiffs in paragraph 3.1 of the particulars of claim,
came into existence at that stage when the decision
to purchase the
cattle was conveyed to the first defendant, after the receipt of the
photographs by the plaintiffs showing the
cattle. In my view, this
argument neither serves nor take the plaintiffs case any further. The
mere fact that the purchase price
of the cattle was made by the
plaintiffs on 19 February 2016 to the second defendant, as
represented by the first defendant, does
not justify the conclusion
that the plaintiffs only had knowledge of one seller, namely Platberg
Lewende Hawe and no other. This
submission is not supported by the
evidence on record. The counsel’s submission that the only
inference that could be drawn
from the facts was that
“
it
was the second defendant who wished to dispose of the property whilst
it was the plaintiffs who wished to obtain ownership of
the cattle,
was the only sale agreement before the court”
[3]
,
is
without substance. So also is the submission that the second
defendant was the seller.
[11]
The arguments advanced by the plaintiffs cannot hold water as they
fail to address the defence raised by the defendants; do
not take
into consideration the evidence by both the Van Der Meulen brothers
and Colonel Odendaal to the effect that first defendant
was nothing
else but a
“
veeagent
”
or agent; and that the cattle were not supplied by
the second defendant but by an independent third party. It follows
therefore,
that the basis and reliance by the plaintiffs on a cause
of action based on a warranty against eviction as against the second
defendant
is misplaced.
[12]
The defendants’ counsel submitted that the case that the
defendants had to meet was the verbal contract pleaded by the
plaintiffs in paragraph 3 of the particulars of claim. The onus
rested on the plaintiffs to prove the terms relied upon; which
involved also the proof of a negative and that the parties did not
agree on any additional terms as alleged by the defendant
[4]
.
On a reasonable interpretation of the evidence, it could never be
found that paragraph 3 of the particulars of claim was proven.
On the
contrary, what was proven was the defendants’ case as Johan Van
Der Meulen confirmed under cross-examination that
the first defendant
was merely an agent and no purchase agreement came into existence
between the plaintiffs and any of the defendants.
He confirmed that
the tax invoice, Annexure “A” to the plaintiffs’
particulars of claim, was issued for the sole
purpose of claiming
value added tax.
[13] It is clear from the
evidence that:
13.1 Both plaintiffs
never had any communication with the defendants (save for the
communication between the plaintiffs’ representative
and the
first defendant);
13.2 No agreement was
reached between the defendants and the plaintiffs’
representative to the effect that the second defendant
would sell
cattle to the plaintiffs for the stated amount;
13.3 The second defendant
acted as the plaintiffs’ agent;
13.4
The plaintiffs failed to prove the oral agreement between them and
the second defendant as alleged.
[14]
A tax invoice is not an essentialia of a sale agreement
[5]
.
It is something that is needed for tax and accounting purposes. Oral
agreements can be proved by evidence of the conversations
between the
parties, but such evidence must be very clear and reliable; otherwise
the court is bound to find that the contract
was not constituted, for
the onus is on the person who alleges a contract to prove its
existence
[6]
.An agent on the
other hand is simply and solely the representative of the principal
on whose behalf the agent transacts with third
parties. The agent
acts merely as a conduit to bring about a legal relationship between
a principal and the third party
[7]
.
[15]
In the circumstances, I find that there was no need for the
defendants to be put on their defence as the plaintiffs failed
to
prove the existence of an agreement between the plaintiffs and the
second defendant. The first defendant was a mere conduit
between the
plaintiffs and a third party. The plaintiffs have therefore failed to
prove their claims against the defendants and
these claims stand to
be dismissed.
[16] In the result, the
costs should follow the event.
[18] I therefore make the
following order:
The
action is dismissed with costs.
____________
MHLAMBI,
J
Counsel
for the defendant: Adv. J.J.F Hefer SC
Instructed
by: McIntyre & Van der Post
12
Barnes Street
Bloemfontein
Counsel
for Respondents: Adv. S.J Reinders
Instructed
by: Symington & De Kok
169b
Nelson Mandela Drive
Bloemfontein
[1]
Plaintiffs reply to the defendants’ request for further
particulars, para 1.4
[2]
Plaintiffs’ heads of argument, para 3.1.3.4
[3]
Plaintiff’s
heads of argument, para 3.1.8
[4]
Topaz Kitchens (Pty) Ltd v Naboom Spa (Edms) Bpk 1976 (3) SA 470
(A)
[5]
C.A.
Bothma v Chalmar Beef (Pty) Ltd (2145/2017)[2018] ZAFSHC 132 (14
September 2018) para 23
[6]
Francois
du Bois:General Editor: Wille’s Principles of South African
Law, 9
th
Ed 2007, Juta & Co at pages 755 and 756; See also Topaz Kitchens
supra
[7]
Francois
du Bois, supra on page 986; C.A. Bothma supra para 17