About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Limpopo High Court, Polokwane
SAFLII
>>
Databases
>>
South Africa: Limpopo High Court, Polokwane
>>
2018
>>
[2018] ZALMPPHC 29
|
|
M.M obo A.M v Kgopana (3941/2016) [2018] ZALMPPHC 29 (29 June 2018)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
(LIMPOPO
DIVISION, POLOKWANE)
CASE
NO: 3941/2016
In
the matter between:
M
M being the
guardian
PLAINTIFF
of
A M
and
NTSIENI
MORRIS
KGOPANA
DEFENDANT
JUDGMENT
MAKGOBA
JP
[1]
The Plaintiff in this matter M M is acting in her representative
capacity as mother and natural guardian of the minor child,
A M, born
on 21 August 2003. The Plaintiff instituted an action against the
Defendant to enforce an undertaking allegedly made
by the Defendant
to pay a certain amount of money to the Plaintiff for the benefit of
the aforesaid minor child.
[2]
The Plaintiff claims the sum of R 900 000.00 against the
Defendant who disputes the claim and denies having made any
undertaking
to pay any amount at all claimed by the Plaintiff.
[3]
At the start of the trial and by agreement between the parties a
document marked Exhibit “B” was handed in as evidence
and
the following common cause facts are set out:
3.1. During or about
2003, the Plaintiff and the Defendant were involved in a romantic
relationship with each other and out of the
relationship the minor
child A M was born on […] August 2003.
3.2. At some later stage
the relationship between the Plaintiff and the Defendant deteriorated
and the parties separated.
The Plaintiff kept
primary care in respect of A and the Defendant paid monthly
maintenance contributions in the amount of
R 1000.00 as per consent
maintenance order made by the Mokopane Magistrate’s Court,
under case number 121/2003.
3.3. During or about July
2015 the Defendant contacted the Plaintiff and indicated
inter
alia
that:
3.3.1. His health has
deteriorated and he was no longer able to continue being employed;
3.3.2. He would receive
his pension benefits as a result of the termination of his
employment;
3.3.3. His pension
benefits would amount to approximately
R 600 000.00. That
he would be willing to, from the proceeds of the pension benefit,
transfer an amount R 100.000.00 in full
and final settlement in
respect of his maintenance duty towards A.
3.3.4.
The Defendant agreed in January 2016 to pay an amount of R 100 000.00
to the Plaintiff in full and final settlement of his
maintenance duty
towards the minor child, but learned afterwards that such an
agreement is not legally binding. The Defendant nonetheless
paid the
amount of R 100.000.00 in January 2016 to the Plaintiff as
maintenance towards the minor child.
3.4. The parties
approached the maintenance Court, Mokopane in order to have the
agreement made an order of Court and the amount
of
R 100 000.00 was then
paid over by the Defendant to the Plaintiff.
3.5.
On 29 July 2015 the Defendant received an amount of R 20 814 582.20
into his Standard Bank
account with number […]. This amount was received from the
National Lottery (“the lotto”).
3.6. On 21 January 2016
the Defendant sent a WhatsApp message to the Plaintiff that reads as
follows:
“
If
i get 20m I can give my children 1m and remain with 13m. I will just
stay at home and not driving up and down looking for tenders”
[4]
It is against this backdrop that the Plaintiff holds the Defendant to
the above undertaking and claims the remaining amount
of R 900 000.00
after the initial amount of R 100 000.00 was paid in January
2016. Summons in this matter was served
on the Defendant on 17
October 2016. The Plaintiff contends that the unilateral undertaking
made in the WhatssApp message should
be enforced. The Defendant on
the other hand contends that same should not be enforced as he never
intended it to be enforceable.
The Defendant states that he merely
sent this WhatssApp message to the Plaintiff to get rid of the
Plaintiff.
[5]
The issue in dispute in this matter is the question whether the
Defendant, when sending a WhatsApp message to the Plaintiff
on the 21
January 2016, intended to create a legally binding agreement between
him and the minor child, with the Plaintiff acting
on his behalf,that
could be enforced in a Court of law. If such an intention is apparent
from the evidence before Court, on a balance
of probabilities, the
action should succeed. It is common cause that there are pending
maintenance proceedings in the Mokopane
Maintenance Court which can
be continued by the Plaintiff irrespective of whether this action
succeeds or not. The present legal
action instituted by the Plaintiff
against the Defendant has nothing to do with the maintenance
obligations of the Defendant towards
the minor child, but this action
is based on an undertaking made by the Defendant to pay R
1 000 000.00 to one of his
children, A.
[6]
In her testimony in Court the Plaintiff stated that during July 2015
the Defendant informed her that he was no longer capable
of
continuing with his employment and would go on early pension. That
his pension benefits would amount to R 600 000.00 out
of which
he would pay an amount of R 100 000.00 in full and final
settlement towards the maintenance of the minor child. The
Plaintiff
accepted this offer and a Court order to that effect was made at
Mokopane Magistrate Court. The amount of R 100 000.00
was paid to her
on 5 January 2016.
[7]
During this time the Plaintiff heard from ladies at work that the
Defendant had won R 20 Million rand in the lottery. She confronted
the Defendant with this information at the maintenance Court and
asked if it was true. The Defendant denied that he won that amount
in
the lottery. She again confronted him on 20 January 2016 over the
phone and asked him if he had received the money, and he again
denied
it. After denying this fact to her, on 21 July 2016 he sent her the
WhatsApp message which forms the central point to this
dispute. The
Plaintiff states that she understood from this WhatsApp message that
the Defendant would pay R 1 Million rand for
the benefit of their
minor child. She did not take it as a joke.
[8]
The Plaintiff testified that she had been suspicious of the Defendant
when it comes to maintenance payments as he was not a
reliable
maintenance payer according to her. After receiving the WhatsApp
message she went straight to her attorney to enforce
the undertaking
as she could not trust the Defendant. Summons commencing action in
this matter was issued by the Registrar of this
Court on 7 September
2016 and served on the Defendant on the 17 October 2016.
[9]
The Plaintiff was a good and honest witness. She did not attempt to
hide any fact from the Court. During cross examination she
openly and
honestly answered the questions put to her. There are no
contradictions in her evidence. I can therefore accept the
Plaintiff’s evidence as true and reliable.
[10]
The Defendant testified that it is common cause that he received the
lotto money on the 29 July 2015. That by agreement between
him and
the Plaintiff he paid the sum of R 100 000.00. The agreement was made
an order of Court at the maintenance Court in Mokopane.
After he paid
the aforesaid amount the Plaintiff approached him in January 2016 and
enquired from him about the lotto money. By
that time he had already
received the money from the National Lottery but he denied having
received such money. He admitted his
communication with the Plaintiff
through WhatsApp message. When asked about the contents of the
WhatsApp message of 21 January
2016 his response was that he sent
that message to the Plaintiff in order to get rid of her and he
denied that the WhatsApp message
constituted an undertaking to pay to
the Plaintiff an amount of R 1 000 000.00.
[11]
The Defendant mentioned that he has seven children including the
minor child of the Plaintiff. He conceded that the WhatsApp
message
does make mention of seven children getting one million rand each and
he remaining with R 13 million rand. The R 100 000.00
paid to the
Plaintiff was according to him a payment in full and final settlement
of his maintenance obligations towards the minor
child. The Defendant
maintained that he left his employment due to ill health. When asked
what type of ailment he suffered from
he could not give any direct or
sensible explanation.
[12]
The Defendant’s demeanor while testifying specifically in
cross examination
leaves much to be
desired. He did not answer some questions put to him during cross
examination, although such questions were simple
and easy questions.
The Court on more than one occasion had to intervene to request the
Defendant to merely answer the simple questions
that were put to him.
During his testimony I gained the impression that he had something to
hide, otherwise one would have expected
his testimony and his
demeanor to have been different. The Defendant’s version is
improbable and cannot be accepted in so
far as it differs with the
version of the Plaintiff.
[13]
The Defendant is a person who admittedly lied to the Plaintiff
regarding winning the lotto. Until he himself made mention of
the
lottery money in the WhatsApp message dated 21 January 2016 he had at
all material times denied winning lottery when confronted
and asked
by the Plaintiff. The undisputed evidence of the Plaintiff that the
Defendant at the meeting at the maintenance Court
with the
Maintenance Officer also persisted in denying that he won the lotto,
is a further indication of the fact that the Defendant
is untruthful
and unreliable. He persisted in denying winning the lotto even in
front of the Maintenance Officer, an officer of
the Court.
[14]
The Defendant testified that his health had deteriorated and he was
no longer able to continue being employed. When confronted
with this
issue in cross examination, he maintained that his health has
deteriorated but failed to give an indication of what this
alleged
condition affecting his health is. One gets the impression that the
Defendant terminated his employment not due to ill
health but because
he won the lotto. The Defendant therefore misled and lied to the
Plaintiff and persisted in lying in Court during
his testimony.
[15]
It is a fact that the Defendant denies having made an undertaking to
pay an amount of R 1 000 000.00 to the Plaintiff
for the
benefit of the minor child. I shall take into consideration the
Defendant’s mendacity as a witness to determine whether
the
Plaintiff has discharged the onus of proving the existence of an
undertaking made by the Defendant.
[16]
The amount allegedly owed by the Defendant in terms of the
undertaking is R 1 000 000.00. However in her summons
the
Plaintiff claims an amount of R 900 000.00. Counsel for the Plaintiff
submitted that the Plaintiff is generous and even decided
to deduct
the amount of R 100 000.00 already paid, hence she claims the balance
of R 900 000.00.
[17]
The Plaintiff contends that the WhatsApp message constitutes an
undertaking in terms of which the Defendant undertook to pay
the
minor child an amount of R 1 000 000.00 if he won the
lotto. Indeed by the time he made the undertaking on 21 July
2016 he
had already won the lotto and received the money on 29 July 2015. On
the other hand the Defendant contends that he did
not have the
intention to create a binding agreement between him and the Plaintiff
when he sent this message but to get rid of
the Plaintiff and end
their conversation at the time.
[18]
The Court has to determine whether the Defendant had the requisite
animus contrahendi
when
making the aforesaid statement to enter into a binding agreement. It
is trite law that when alleging the existence of a contract
the
burden of proof is on the Plaintiff to establish that both parties
had the requisite intent or
animus
contrahendi
before the conclusion of
the alleged agreement. In the case of
Government
of the Self-Governing Territory of Kwazulu v Mahlangu and Another
1994 (1) SA 626
(TPD) at 635 D
it was
said that:
“
What
is required before a Court can be approached to exercise powers of
review is that the contract should appear to have been entered
into
and formulated with the intention that it would be final and binding
and legally enforceable.”
[19]
In
casu,
the contents of the WhatsApp message is clear and
unequivocal. The Defendant who had by then won the lotto communicated
the message
to the Plaintiff that he would pay R 1 000 000.00
to the minor child. Not only this minor child but also his other six
children so that out of the R 20 million rand he had, he would remain
with R 13 million rand and not worry about doing any other
work to
earn a living. The Plaintiff accepted the undertaking and proceeded
to instruct her attorneys to enforce the undertaking.
The offer or
undertaking made by the Defendant was certain and definite in its
terms. It was a firm offer made with the intention
that when
accepted, it will bind him as the offeror.
See
Efroiken v Simon
1921 CPD 367
at 370
.
[20]
From the content of the WhatsApp message and from the surrounding
circumstances as evidenced from the evidence of both parties
I must
determine whether the Defendant made an unambiguous offer with the
clear intention to be bound to the Plaintiff by mere
acceptance of
the offer. When the Plaintiff received the WhatsApp message from the
Defendant she already had information that the
Defendant had won R 20
million rands at the lottery and she had already confronted him with
this information. The prior information
was confirmed by the receipt
of the WhatsApp message and the contents thereof. Hence the Plaintiff
readily accepted the offer.
[21]
In my view the offer contained in the WhatsApp message was a
conditional one, depending on whether the Defendant would win
the
national lottery. This condition was satisfied in that the Defendant
did win the lottery. In any event by the time he made
the offer on 21
July 2016 he had already won the lottery in July 2015. The condition
set by the Defendant was thus fulfilled and
this makes the
undertaking enforceable.
[22]
The reason given by the Defendant to go on early retirement was
according to him ill health. That was on or about July 2015.
It is
significant to note that this was at the same period when he received
the lotto money on 29 July 2015. I am inclined to draw
an inference
that the Defendant terminated his employment due to the fact that he
became an instant millionaire and not due to
his deteriorating
health. The credibility and reliability of the Defendant as a witness
is therefore put into question. It is improbable
and strange that
when the Defendant won the lotto during July 2015 and received the
payment during July 2015, then, all of a sudden
he became unhealthy.
In my view the Defendant misled and lied to the Plaintiff and
persisted in lying in Court during his evidence
in chief and during
cross examination.
[23]
In his plea to the particulars of claim the Defendant pleaded as
follows in paragraph 10.6.3:
“
10.6.3
In the event of the Honourable Court finds that the Defendant in fact
undertook to make the said payment of R 1 000 000.00
(one
million rand) (which is not admitted) Defendant herewith withdraw
such an undertaking before it may be accepted.”
If
it was never his intention to be bound, then why now withdraw this
undertaking? In any event it was too late for the Defendant
to can
withdraw the offer as same had already been accepted by the Plaintiff
before she instituted this action against the Defendant.
[24]
From the evidence on record the Defendant has seven children
including the minor child with the Plaintiff. The offer as contained
in the WhatsApp message is that out of the R 20 million rand he had
he would give each child a million rand and remain with R 13
million
rands. This shows that the Defendant had carefully done his
calculations with the monies he had. From this I draw an inference
or
even a conclusion that the Defendant had the intention to pay R
1 000 000.00 to the Plaintiff for the benefit of the
minor
child.
[25]
Counsel for the Plaintiff referred me to the often quoted passage in
the judgment of Blackburn J in
Smith v
Hughes
(1871) LR 6 QB 597
at 607
which
is as follows:
“
If,
whatever a man’s real intention may be, he so conducts himself
that a reasonable man would believe that he was assenting
to the
terms proposed by the other party, and that other party upon the
belief enters into the contract with him, that man thus
conducting
himself would be equally bound as if he had intended to agree to the
other party’s terms.”
[26]
This then brings me to a further and crucial question whether a
reasonable man in the position of the offeree would have accepted
the
offer in the belief that it represented the true intention of the
offeror.
In
my view this test is satisfied in the present case and the offeror
(the Defendant herein) can be held contractually liable (See
Steyn
v LSA Motors Ltd
[1994] 1 All SA 483
(A)
).
If
one considers the facts and surrounding circumstances in this case, a
reasonable man in the shoes of the Plaintiff would have
taken the
WhatsApp message of the Defendant to be an unequivocal offer to give
the minor child one million rands.
[27]
In the latter case of
Steyn v LSA Motors Ltd
Botha JA said:
“
Where
it is shown that the offeror’s true intention differed from his
expressed intention, the outward appearance of the agreement
flowing
from the offeree’s acceptance of the offer as it stands does
not in itself or necessarily result in contractual liability.
Nor is
it in itself decisive that the offeree accepted the offer in reliance
upon the offeror’s implicit representation that
the offer
correctly reflected his intention. Remaining for consideration is the
further and crucial question whether a reasonable
man in the position
of the offeree would have accepted the offer in the belief that it
represented the true intention of the offeror,
in accordance with the
objective criterion formulated long ago in the classical dictum of
BLACKBURN J in
Smith v Hughes
[1871] LR 6 QB 597
at 607
. Only
if this test is satisfied can the offeror be held contractually
liable.”
[28]
In the case of
Sonap Petroleum (SA)
(PTY) Ltd v Pappadogianis
[1992] ZASCA 56
;
1992 (3) SA 234
(AD)
the
Court was concerned with
dissensus
relating to the terms of the contract proposed in the offer, but the
test whether a reasonable man in the position of the one party
would
have been misled applies also where it is shown that the other
party’s declaration was not intended by him to be an
offer at
all. (See
Spes Bona Bank Ltd v Portals
Water Treatment South Africa (Pty) Ltd
1983 (1) SA 978
(A)
).
[29]
The principle outlined above must, in my view, apply equally when the
dissensus
relates
to the addressee of the offer, that is where the offeror does not
intend0 the offer to be open for acceptance by the other
party, but
the latter believes that it is and in that belief accepts it. In
casu
the fact that the Defendant might not
have intended his offer as set out in the WhatsApp message to be
accepted by the Plaintiff
is neither here nor there. The Plaintiff,
as a reasonable man believed him and she was made to accept the
offer.
[30]
I make a finding that the Plaintiff established her case on a balance
of probabilities. The Defendant had the necessary
animus
contrahendi
to enter into an agreement
with the Plaintiff, and as a consequence, she has discharged the onus
on her proving that an agreement
was entered into between the
parties.
[31]
Accordingly I grant judgment in favour of the Plaintiff against the
Defendant as follows:
(1)
Payment of the amount of R 900 000.00.
(2)
Interest at the rate of 9% per annum,
calculated from the date of service of summons to date of final
payment.
(3)
Costs of the action.
_________________________
E
M MAKGOBA
JUDGE PRESIDENT OF THE
HIGH COURT, LIMPOPO DIVISION, POLOKWANE
APPEARANCES
Heard
on: 11 June 2018
Judgment
Delivered: 29 June 2018
For
Plaintiff: Adv. J Eastes
Instructed
by: De Beer Attorneys
Polokwane
For
Defendant: Adv. A C Diamond
Instructed
by: Hammann – Moosa Inc
c/o
De bruin Oberholzer Attorneys