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[2017] ZANCHC 60
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Richter NO and Others v Schatheuna Boerdery CC (CA&R19/2017) [2017] ZANCHC 60 (20 October 2017)
IN
THE HIGH COURT OF SOUTH AFRICA
(Northern
Cape High Court, Kimberley)
CASE
NO: CA&R19/2017
DATE
HEARD: 16/10/ 2017
DATE
DELIVERED: 20/10/2017
REPORTABLE
CIRCULATE
TO JUDGES
In
the matter between:
RICHTER, FREDERICK
JOHANNES NICHOLAS NO
1
st
Appellant
DE
KOCK, ANNA WILHELMINA ELIZABETH
NO
2
nd
Appellant
ERASMUS,
NICO
NO
3
rd
Appellant
and
SCHATHEUNA
BOERDERY
CC
Respondent
Coram:
Olivier J
et
Snyders AJ
JUDGMENT
Olivier
J:
[1.]
The three appellants,
Mr F J N Richter, Mrs A W E De Kock and Mr N Erasmus, are the
trustees of the Richter Kempen Trust (“
the
Trust
”) and
the respondent is Schatheuna Boerdery CC, a close corporation.
BACKGROUND:
[2.]
Until 29 May 2014
Schatheuna Boerdery was the owner of,
inter
alia
, the
agricultural properties described as Lots 40, 81 and 83, Kanoneiland
(“
the farm
”),
where farming activities were conducted, and more specifically the
cultivation of grapes; some varieties for the production
of wine and
others for the production of raisins.
[3.]
At all times material
hereto Mr S W B Engelbrecht was the sole member and the
representative of Schatheuna Boerdery, and he had
in the past also
normally been responsible for the daily management of those farming
activities.
[4.]
In
2013 Mr Engelbrecht appointed Mr C M Opperman as the agent of
Schatheuna Boerdery for purposes of the sale of the farm by
Schatheuna
Boerdery. Mr Engelbrecht supplied Mr Opperman with
certain information regarding the vineyards on the farm, and on the
basis
of that information, as well as information acquired at the
Deeds Office, a document
[1]
was
compiled which,
inter
alia,
set out particulars relating to the varieties or cultivars of the
grapes and the age and the number of vines in the different so-called
vineyard blocks on the farm.
[5.]
Mr Opperman placed an
advertisement in a local newspaper and early in January 2014 Mr
Engelbrecht and Mr Opperman showed the second
appellant, Mrs De Kock,
around the farm after she had, through the advertisement, become
aware that it was for sale. At all
material times hereto Mrs De
Kock was the person who represented the Trust. Although there
was some dispute about whether
he had arrived at the farm with Mrs De
Kock or separately, it was common cause that Mr Kempen, the son
of Mrs De Kock, was
also present there that day.
[6.]
Very shortly afterwards
(possibly even the next day) Mrs De Kock paid a visit to Mr J Brits,
at the time a credit manager at First
National Bank in Kakamas, with
a view to apply, on behalf of the Trust, for a loan.
[7.]
Shortly thereafter a
written contract was concluded, in terms of which Schatheuna Boerdery
sold to the Trust,
inter
alia
, the fixed
property and the vineyards and crops on it. It also recorded that the
Trust purchased certain movable property from
Schatheuna Boerdery,
including 4 000 so-called drying trays. The written
contract set the total purchase price
of R 4 837 000.00 out
as consisting of R 3 000 000.00 for the fixed property, R
1 580 000.00 for
the crops and R 257 000.00 for
implements which according to annexure “A” to the
contract included,
inter
alia
, the trays at
a total of R200 000.00.
[8.]
The Trust took
occupation of the farm on 14 January 2017, and proceeded to harvest
the crops.
[9.]
The transfer of the
ownership of the farm to the Trust was, however, only registered on
29 May 2014.
[10.]
Mrs De Kock was
subsequently informed that the Trust had to pay in a further amount
towards the total price, which the attorneys
of Schatheuna Boerdery
at the time claimed to have been short-paid due to a miscalculation
on their part. When the amount
was not paid, a letter of demand
was addressed to Mrs De Kock, claiming payment of not only the
outstanding capital, but also payment
of occupational interest.
[11.]
The response to the
letter of demand was:
11.1
that the Trust was not liable to make any payment towards any capital
alleged to be outstanding:
11.1.1
as it had in any event paid R440 000,00 more for the crops than
what their actual value had at the time of negotiations
been
represented to be, and that the amount of R440 000,00 exceeded
the portion of the capital amount alleged to be outstanding;
and
11.1.2
because the part of the purchase price pertaining to the trays was
not actually payable, as the parties had orally agreed
that, although
annexure “A” to the contract would
inter
alia
reflect the
trays and their price, the Trust would in fact not purchase the
trays; and
11.2 that no occupational
interest was payable, because the parties had agreed orally that
interest would not be payable when the
Trust was not to blame for the
delay in transfer, and that the Trust had indeed during the
applicable period not been the cause
of the delay in the registration
of transfer.
TRIAL
COURT:
[12.]
In June 2014 the
respondent issued summons (in the Regional Court, Upington) against
the appellants, cited in their nominal capacities
as trustees of the
Trust.
[13.]
Arrears occupational
interest in an amount of R118 324.46 was claimed, calculated
from 1 March 2014 to date of transfer,
as well as payment of an
amount of R125 300.00, alleged to be outstanding in respect of
the total purchase price in terms
of the contract.
[14.]
As far as the issue of
occupational interest is concerned, the appellants pleaded that the
parties had concluded an oral agreement
which had supplemented the
written contract, alternatively amended it, resulting in the written
contract not reflecting the true
intention of the parties regarding
the aspect of occupational interest. It was pleaded that the
oral agreement was to the
effect that the Trust would not pay
occupational interest for as long as the Trust was not the cause of
the delay in the transfer
of the farm.
[15.]
With respect to the
alleged outstanding balance of the capital, it was pleaded that there
had been a material and fraudulent misrepresentation
concerning the
number of vines in a particular section of the farm. It was
also pleaded that the harvesting of the crops
yielded an income of
only R1 140 000.00, and therefore R440 000.00 less
than the amount of R1 580 000.00
allocated to the crops in
the written contract. It was furthermore pleaded that the
particular part of the written contract
regarding the purchase of the
trays, constituted a simulation and that the true intention had never
been that the Trust would actually
purchase the trays, and it was
pleaded that this also entitled the Trust to a reduction of the
purchase price.
[16.]
A counterclaim was also
instituted. In claim A payment of the amount of R47 378.50
was claimed, being the total cost
of the replacement of the missing
vines. Claim B was for payment of the difference between the
R440 000.00 allegedly
suffered in damages as a consequence of
the alleged fraudulent misrepresentation, on the one hand, and the
outstanding balance
of the total purchase price in terms of the
written contract, on the other hand.
[17.]
In its plea to the
counterclaim the respondent denied the allegation that the contract
did not reflect the true common intention
of the parties regarding
occupational interest, and also the allegation of a simulation.
The allegation of a misrepresentation
was denied and it was pleaded
that the amount of R1 580 000.00 had only been an estimate,
and not a representation of
the value of the crop or of the harvest.
[18.]
The oral evidence
presented at the trial on behalf of the respondent was that of Mr
Engelbrecht and Mr Opperman, as well as the
evidence of Mr D J
Coetzee. Mrs De Kock and Mr Kempen testified on behalf of the
Trust, and also Mr Brits. The evidence
of Mr L Mosemeng was
also presented on behalf of the Trust.
[19.]
In terms of clause 3 of
the written contract occupational interest would be payable by the
Trust in the event of transfer not having
taken place by 1 March
2014, and would be calculated at 10% per annum on the purchase price,
calculated from 1 March 2014.
The written contract
obviously contained no mention of the Trust not being liable for the
payment of occupational interest if it
was not the cause of the delay
of transfer.
[20.]
It was common cause
that at least one meeting had taken place at the offices of the
attorney who had at the time acted on behalf
of the respondent and
was responsible for the drafting of the contract, Mr F S P Snyman,
and it was also common cause that the
meeting was attended by Mr
Snyman, Mr Engelbrecht, Mr Opperman and Mrs De Kock.
[21.]
The evidence of Mrs De
Kock was that she had, at that meeting, indicated that the Trust
should not be liable for the payment of
occupational interest during
a period of delay in the transfer of the ownership of the property if
the Trust was not to blame for
such delay.
[22.]
Mr Engelbrecht insisted
that the written contract contained everything that had been agreed
as far as occupational interest is concerned.
Mr Opperman,
however, conceded that, although he could not remember what (if
anything) had in the end been agreed in this regard,
there had been a
discussion where Mrs De Kock, Mr Snyman, Mr Engelbrecht and he
himself were present and where Mrs De Kock had
raised the issue of
liability for occupational interest in the event of, and during a
period when, the Trust was not the cause
of the delay in transfer.
[23.]
As regards the
counterclaim for damages, the evidence on behalf of the appellants,
through Mrs De Kock, Mr Kempen and Mr Mosemeng,
was that:
23.1
Upon completion of the harvesting process it appeared that there were
2561 vines less in the block named “
Tjance
”
on Lot 83. These vines were replaced at a total cost of R
40 976.00;
23.2
The vines that were replaced by the respondent after the frost damage
in September 2013 were not rooted vines, but cut vines,
which were of
a quality inferior to that of rooted vines;
23.3
The harvest of the crops yielded R440 000.00 less than the
amount of R1 580 000.00, which Mr Engelbrecht had
guaranteed to be the value of the crops as at the time when the
vineyards were viewed by Mrs De Kock and Mr Kempen; on the occasion
already referred to and only days before they took occupation of the
property and started harvesting those crops;
23.4
Mrs De Kock testified that Mr Engelbrecht had told her that he had in
2013 harvested 100 tons of grapes, while the Trust had
in 2014 only
managed to harvest a total 72 tons;
23.5
In the period after the Trust took occupation, and until the crops
were harvested, nothing happened which could have had a
detrimental
effect on the proceeds of the harvest of the crops;
23.6
The guarantee, and Mr Engelbrecht’s indication that the crop
was indeed insured for that amount, induced Mrs De Kock
to conclude
the written contract in terms of which the Trust purchased,
inter
alia
, the crops.
[24.]
The Regional Magistrate
ordered the Trust to pay to the respondent the amount of R122 000.00,
which was found to be the outstanding
balance of the purchase price.
There is no counter-appeal against this order.
[25.]
It was also found that,
on probabilities, no supplementary or amending oral agreement had
been concluded regarding occupational
interest. The counterclaim for
rectification of the written contract in this regard was dismissed
and the Trust was ordered to
pay the occupational interest claimed.
[26.]
The Trust’s claim
for damages was dismissed on the basis that, in terms of clause 6.2
of the written contract, the risk in
the crop had passed to the Trust
when occupation was taken by it, and on the basis that clause 11 of
the written contract recorded
that no promises, undertakings,
guarantees or estimations had induced the conclusion of the contract.
[27.]
Lastly the respondent
was ordered to pay to the appellants the amount claimed in respect of
the “missing” vines.
GROUNDS
OF APPEAL:
[28.]
This
appeal is in the first place directed at the dismissal of the
counterclaim for rectification
[2]
and the order that occupation interest be paid. It was
submitted that the Regional Magistrate had erred in rejecting the
evidence of Mrs De Kock that the contract “
incorrectly
failed to record
”
an oral agreement that the Trust would only pay occupational interest
if it was the cause of the delay in transfer.
It was submitted
that it was clear on the evidence that the Trust had not been the
cause of the delay in the period that occupational
interest was
claimed for.
[29.]
It was furthermore
submitted that the Regional Magistrate had erred in accepting the
evidence of the respondent that the written
contract correctly
reflected what had been agreed upon regarding occupational interest,
and by drawing a negative inference against
the Trust for not
presenting the evidence of Mr Snyman.
[30.]
It was furthermore
submitted that the Regional Magistrate had disregarded the following
probabilities concerning the issue of occupational
interest:
30.1
When demand was initially made for payment of the outstanding balance
of the purchase price nothing was said regarding occupational
interest, and the issue of outstanding occupational interest was only
raised when the Trust refused to pay any amount towards the
outstanding balance of the purchase price.
30.2
The bank account number of the respondent for the payment of the
occupational interest was not included in the written contract.
30.3
The respondent failed to stay transfer of ownership until the
occupational interest had been paid, as the respondent could,
according to the submission, have done.
[31.]
As grounds of appeal in
respect of the dismissal of the claim for damages it was submitted
that the Regional Magistrate had erred
:
31.1
in failing to find that the respondent had fraudulently made false
representations regarding the value of the crop and the
quality of
the vines in block “
Tjance
”
on Lot 83;
31.2
in finding that clause 6.2 of the written contract precluded reliance
on such a misrepresentation;
31.3
in failing to find that the value of the harvest had from the outset
been presented as R1 580 000.00 and that this
representation had induced the conclusion of the written contract;
31.4
in failing to find that the appellant was entitled to claim damages,
with or without cancellation of the written contract,
or a reduction
of the purchase price;
31.5
in failing to find that the appellant had indeed proved damages in
the amount of R440 000.00;
31.6
in failing to find that clause 11 did not preclude remedies based on
fraudulent misrepresentation; and
31.7
in failing to find that the
Consumer
Protection Act
[3]
had been applicable, in terms of which implied warranties against
latent defects could not be excluded, clauses 7 and 11 would
be
prohibited
[4]
and the making of
false and misleading statements would be prohibited
[5]
.
RECTIFICATION
/ OCCUPATIONAL INTEREST
:
[32.]
The appeal against the
order that the Trust pay occupational interest is dependent on this
Court finding that the Regional Magistrate
should have found that
clause 3 of the written contract should be read and applied as
rectified in the manner proposed by the appellants.
[33.]
On the evidence of Mrs
De Kock herself it is, however, in my view clear that there is no
merit in the ground of appeal that the
written contract “
incorrectly
failed to record
”
what had according to Mrs De Kock been agreed regarding payment of
occupational interest in the event that the Trust was
not to blame
for a delay in the transfer of ownership.
[34.]
Mrs De Kock testified
that, when the written contract was made available to her at some
time subsequent to the meeting at the offices
of Mr Snyman, but
before it was signed, she pointed out to Mr Snyman that clause 3
contained no proviso to the effect that the
Trust would not be liable
for the payment of occupational interest if it was not the cause of
the delay. According to her
Mr Snyman told her that he was “
in
charge
” and
that he would see to it “
that
things will go right
”,
and by implication that, regardless of the contents of clause 3 of
the written contract, he would see to it that the Trust
would in fact
not pay occupational interest if it was not the cause of the delay.
Mrs De Kock testified that she trusted
Mr Snyman and signed the
written contract in that form.
[35.]
On Mrs De Kock’s
own version she had, after the assurance allegedly given to her by Mr
Snyman, decided to sign the written
contract which contained no
proviso that the Trust would not in such circumstances be liable for
the payment of occupational interest.
She was, on her own
version, satisfied that what had according to her earlier been agreed
upon orally, would be applied regardless
of the fact that it was not
recorded in the contract.
[36.]
On
her own version, therefore, the contract correctly recorded what she
had ultimately accepted and intended it to record.
On Mrs De
Kock’s own evidence there had therefore not, when the contract
was signed, been a common intention that it should
contain the
proviso, or a common belief that it did in fact include it
[6]
.
The fact that Mrs De Kock signed the contract without it
including the proviso was not the result of a mistake on her part.
She did so fully aware of the absence of the proviso, but confident
that the proviso was not necessary to protect the rights of
the
Trust. This, as far as I am concerned, is the end of the appeal
against the orders denying the rectification of clause
3 of the
contract and ordering the appellant to pay the occupational
interest.
[37.]
The alleged oral
agreement could in any event never, as pleaded, have been intended to
supplement the written contract:
37.1
It was, according to Mrs De Kock, concluded before the conclusion of
the written contract. At that stage there was, therefore,
no
written contract which the parties could have mutually intended to be
supplemented by the oral agreement.
37.2
Mrs De Kock never claimed that, when the written contract was
subsequently signed by her, she had not intended it to record,
as it
did in clause 11 thereof, that the purchaser acknowledged that the
contractual relationship between the parties was exclusively
regulated by the written contract. One of the issues which the
written contract addressed was precisely the payment by the
Trust of
occupational interest, and the contract recorded that it had been
agreed that, should transfer still not have taken place
by 1 March
2014, the Trust would have to pay occupational interest calculated
from that date. The contract therefore specifically
dealt with
the issue of occupational interest after 1 March 2014, the
period which Mrs De Kock claimed to be the subject of
the oral
agreement. The written contract therefore indeed regulates the
issue of the payment of occupational interest for
the period after
1 March 2014, and in terms of clause 11 thereof it is to be
regarded as the sole and complete record of what
had been agreed
regarding occupational interest after 1 March 2014, and for as
long as the Trust occupied the property before
it was transferred to
the Trust.
[38.]
Mrs De Kock’s own
evidence that the oral agreement was concluded prior to (and not
after) the conclusion of the written contract,
is also irreconcilable
with the alternative averment (in the appellants’ pleadings)
that the oral agreement had amended the
written contract as regards
occupational interest. When the oral agreement had according to
Mrs De Kock been concluded, no
other agreement had existed for it to
amend.
[39.]
It is therefore
unnecessary to consider whether the probabilities favoured Mrs De
Kock’s version as regards to conclusion
of the oral agreement,
as submitted on behalf of the appellants, and whether a negative
inference regarding her failure to call
Mr Snyman as a witness was
justified.
DAMAGES:
[40.]
It
was not in dispute that exhibit “C”
[7]
had been handed to Mrs De Kock on the day when she first viewed the
farm. The statement made by the appellants’ counsel
during the evidence-in-chief of Mrs De Kock that Mr Opperman had
denied this, was clearly not correct. Mr Opperman’s
evidence was that he could not remember whether he had possibly sent
the document to Mrs De Kock by e-mail, but in cross-examination
he
readily conceded that it may have been given to Mrs De Kock on the
farm.
[41.]
It was furthermore
common cause that it was conveyed to Mrs De Kock that the portion of
the total purchase price reflected in exhibit
“C” that
pertained to the crops, was R1 580 000.00. What was
in dispute is whether this had been said
on the first occasion, when
exhibit “C” was handed to Mrs De Kock on the farm, or
only after she had visited the farm,
had already decided that the
Trust would buy the farm and had approached Mr Brits for financing.
[42.]
Although nothing to
this effect was specifically pleaded Mrs De Kock, when she was asked
(during her evidence-in-chief) to comment
on the proposition that, if
the income of the Trust from the harvesting of the crops had been
R440 000.00 less than the amount
of R1 580 000.00
mentioned to her, the Trust could not hold the respondent liable for
that shortfall, because the risk
in the crop had passed to the Trust
when occupation was taken, her response was that the “
grapes…
only delivered 70 tons and not like he said a 100 the previous year
”.
[43.]
In cross-examination of
Mr Engelbrecht it had been put to him that Mrs De Kock’s
complaint regarding the harvest actually
concerned only the raisin
grapes that had been harvested, and it was furthermore put to him
that that part of the harvest had amounted
to only 72 tons.
[44.]
It was never put to
either Mr Engelbrecht or Mr Opperman that it had been said (by either
of them) that the 2013 raisin grape yield
had been 100 tons, or that
a representation had been made to the effect that the 2014 raisin
grape yield would be a 100 tons.
The furthest that counsel for
the appellants went in cross-examination of Mr Engelbrecht was to ask
him to explain the shortfall
of 28 tons, which would have been the
difference between 100 tons and 72 tons.
[45.]
It was also never
explained where the figure of 100 tons could be discerned from the
information in exhibit “C”.
I certainly could not.
It is also not clear whether the 72 tons and the 100 tons referred to
so-called “
dry
”
mass, in other words the mass of those grapes after having been
dried, or the wet mass. Exhibit “C” contained
information on only the wet mass of the grapes that were produced in
the 2013 season.
[46.]
According
to claim “B” of the appellants’ amended
counterclaim, read with paragraphs 2.2 to 2.10 of the amended
plea
[8]
, the respondent had
through exhibit “C” misrepresented the number of vines on
Lot 83.
[47.]
In paragraph 2.4 of the
grounds of appeal it was submitted that it was the representation
that the value of the crops was R1 580 000.00
that actually
induced Mrs De Kock to sign the contract.
[48.]
It is now submitted, on
behalf of the appellants in the heads of argument, that the Regional
Magistrate should have found that the
respondent had misrepresented
not only the number of vines on Lot 83, but also the quality and age
of those vines.
[49.]
Mrs De Kock’s
evidence, however, was that Mr Engelbrecht at the occasion on the
farm said that he guaranteed that there were
at that stage,
apparently on the farm as a whole, grapes or crops to the value of
R1 580 000.00.
[50.]
The appellants’
claim for damages was based on an allegation that what had been
conveyed to Mrs De Kock had constituted fraudulent
misrepresentation.
[51.]
The respondent denied
this and pleaded that the appellant was, in view of the contents of
the written contract of sale, precluded
from relying on any alleged
representation not recorded in the contract. Specific reference
was made to clause 11, in terms
of which the purchaser (the Trust)
would be deemed to have acknowledged that:
53.1
“
no
statements or representations had been made by or on behalf of the
seller to induce the contract
”
[9]
;
and that
53.2
“
the
relationship between the seller and the purchaser was regulated
exclusively by the contract
”
[10]
.
[52.]
The appellants’
present submissions in this regard are that:
54.1
the transaction was one as intended in the
Consumer
Protection Act
[11]
,
in terms of which
inter
alia
clause 11 of the written contract would be prohibited; and that
54.2
even if clause 11 was valid, it would not protect the seller
(respondent) in the event that such a representation had been
made
fraudulently, as opposed to negligently or innocently
[12]
.
[53.]
In what follows I will
firstly deal with the issue of the
Consumer
Protection Act
.
[54.]
The appellants’
pleadings made no reference to the Act, even after those pleadings
had been amended subsequent to the respondent
raising clauses 7 and
11 in its response to the appellants’ plea and counterclaim
before they were amended.
[55.]
Section
69 of the Act provides a consumer with several “
internal
”
remedies and has been held to mean that a consumer who has not
exhausted such remedies will not be entitled to seek redress
anywhere
else than a consumer Court
[13]
.
The appellants have made out no case in this regard, and in fact
never even made as much as an allegation that the Regional
Court had,
or that this Court has, the jurisdiction to entertain these defenses.
[56.]
Even
if the sale in the present matter could be regarded as a transaction
for purposes of the
Consumer
Protection Act
[14]
,
the Act would in terms of section 5(2)(b) in any event not apply to
“…
any
transaction –
(a)
…
...;
(b)
in terms of
which the customer is a juristic person whose asset value or annual
turnover at the time of the transaction, equals
or exceeds the
threshold value determined by the Minister in terms of section 6;
…”
[57.]
In terms of the
definition of a juristic person in section 1 of the Act the Trust
would indeed be a juristic person as envisaged
in section 5(2)(b).
[58.]
In
Government Notice R294 of 1 April 2011
[15]
the Minister, in terms of section 6(1) of the Act, set the monitory
threshold applicable to section 5(2)(b) at R2 000 000.00,
to be calculated in accordance with the Schedule to the Notice and
with reference,
inter
alia
,
to the asset value of such a juristic person. No evidence to
this effect appears in the record, although it did at the very
least
appear that the Trust was able to raise a loan of R3 000 000.00
without selling any of its several other properties,
at least some of
which had been unencumbered by bonds. The appellants have
therefore in any event not shown that the
Consumer
Protection Act
would
be applicable in this case.
[59.]
Although
I find it unnecessary in the circumstances to come to a finding in
this regard, it may also be debatable whether the sale
of this farm
had taken place in the ordinary course of the business of the
respondent. It appeared from the evidence that
the respondent
had conducted farming activities on its properties, and there is no
indication that it had also been involved in
the “
continual
marketing
”
of land
[16]
. For the
Trust to have enjoyed the protection of the
Consumer
Protection Act
the sale of the farm would have had to have taken place in the
ordinary course of the respondent’s business
[17]
.
[60.]
In
ESKOM
Holdings Ltd v Halstead-Cleak
[18]
it was held that, having regard to the purpose of the
Consumer
Protection Act
,
only consumers as defined in the Act would enjoy its protection.
With reference to the fact that “
The
definition of ‘consumer’ in s 1 is a person to whom goods
or services are marketed in the ordinary course of a supplier’s
business, or who has entered into a transaction with a supplier in
the ordinary course of a supplier’s business
”,
it was confirmed that for purposes of the
Consumer
Protection Act
an objective test is to be applied in determining whether a
transaction took place in the seller’s ordinary course of
business
[19]
. The sale
of an asset would not necessarily always be regarded as having been
done in the ordinary course of a particular
business
[20]
.
[61.]
I have therefore come
to the conclusion that, even if the appellants could at this stage be
allowed to rely on the provisions of
the
Consumer
Protection Act
, the
provisions of the Act cannot on the available evidence be said to
have been applicable to this particular transaction.
[62.]
I will therefore
proceed to consider:
64.1
whether what had been said or conveyed to Mrs De Kock had constituted
a representation; and, if so,
64.2
whether it had been false, indeed also to the knowledge of the
representative/s of the respondent.
[63.]
If the “
split
”
version of the purchase price had been conveyed to Mrs De Kock on the
first day, and as part of the negotiations, it could
be argued to
have been done to induce Mrs De Kock to agree, on behalf of the
Trust, to buy the crops for that specific portion
of the total
purchase price.
[64.]
If, on the other hand,
the separate amount in respect of the crops had only been supplied
after the negotiations, and merely to
facilitate matters for the
Trust at the Bank, the position would clearly be different.
[65.]
The Regional Magistrate
made no findings in this regard.
[66.]
It was submitted on
behalf of the appellants that Mr Brits had been an independent
witness whose evidence had been “
of
a very high quality
”.
It was furthermore submitted, without really referring to specific
aspects in the evidence in this regard of Mr Engelbrecht
and Mr
Opperman that fell to be criticized, that the evidence of Mr
Engelbrecht and Mr Opperman on this aspect should be rejected
insofar
as far as it was in conflict with that of Mrs De Kock, Mr Kempen and
Mr Brits.
[67.]
As far as the evidence
of Mr Brits is concerned it was common cause that there had, at some
stage after Mrs De Kock’s visit
to Mr Brits, been a telephone
conversation between Mr Brits and Mr Opperman.
[68.]
Mr Brits was at one
stage unsure whether he had called Mr Opperman, or Mr Opperman him,
but later stuck to the version that he had
called Mr Opperman. He
was also unsure about how many times he had spoken to Mr Opperman.
In my view it can, however,
safely be accepted that Mr Brits had
called Mr Opperman.
[69.]
What is more important,
however, is what the reason for that call and conversation had been.
Mr Opperman’s evidence
was that the reason was that Mr Brits
required a split or a division into two parts of the total purchase
price reflected in exhibit
“C”, in other words one part
of the price for the land and the other part for the crops. His
version was therefore
that it had only then become necessary to
consider dividing the total purchase price reflected in exhibit “C”
and allocating
a part of that price to the crops.
[70.]
The appellants’
version was completely different. On the appellants’
version a divided purchase price had at that
stage already been
conveyed to Mr Brits by Mrs De Kock, and it was put to Mr Opperman in
cross-examination that Mr Brits had later
called Mr Opperman to ask
him to make sure that the written contract reflected the already
divided and separate prices for the
land and the crop.
[71.]
In direct contrast to
what had been put to Mr Opperman in cross-examination, Mr Brits in
his evidence denied that he had asked Mr
Opperman this.
According to him the reason for his call was to tell Mr Opperman to
ensure that the written contract contained
the same information as
exhibit “C”.
[72.]
If one considers for a
moment the version put to Mr Opperman in this regard, the question
arises why Mr Brits would have considered
it necessary to discuss
with Mr Opperman what the contents of the written contract had to
be. His evidence was that he had
already by then discussed with
Mrs De Kock, who had for all practical purposes been his client, the
requirement that the contract
should contain a separate price for the
land. The evidence was also that the signed contract would in
any event have had
to be submitted to Mr Brits to enable him to
facilitate the formal application for a loan, which would have given
him another opportunity
to verify that the purchase price had indeed
been divided and set out as required by him. It seems unlikely
that Mr Brits
would in those circumstances have thought it necessary
to again discuss the very same requirement with Mr Opperman.
[73.]
In any event, Mr
Opperman was the estate agent and it is not clear on the evidence why
Mr Brits would have been under the impression
that Mr Opperman would
have anything to do with the drafting of the contract. Why
would he not, if he had decided not to
trust that Mrs De Kock would
see to it that the contract dealt with the purchase price as required
by him, have phoned Mr Snyman
instead?
[74.]
On the other hand Mr
Brits’ own explanation for his call to Mr Opperman is difficult
to understand. Why would he have
wanted Mr Opperman to ensure
that the information in exhibit “C” was reflected in the
contract? Exhibit “C”
did not set out a separate
price for the land, and it is unclear what other information in
exhibit “C” Mr Brits would
have wished to be included in
the contract.
[75.]
As far as the evidence
of Mrs De Kock is concerned, it was very clear that she had been
present in Court when Mr Brits testified.
[76.]
The appellants’
counsel attacked the credibility of Mr Engelbrecht on the basis,
inter alia
,
that he was an accomplice “
with
his attorney
”
to fraud perpetrated on the Receiver of Revenue when the contract was
drafted to reflect the sale of the trays, while
the intention
had never been that the Trust would really purchase the trays.
On her own version, however, Mrs De Kock would
then have been equally
complicit in the so-called fraud and, on counsel’s argument,
this should then similarly impact on
her credibility.
[77.]
Mrs De Kock’s
explanation of how it had come about that the split version of the
purchase price was given to her on the very
first day, was that it
was given to her when she enquired how the total purchase price in
exhibit “C” was calculated.
Why would Mrs De Kock
have needed to ask Mr Opperman how the purchase price in exhibit “C”
was calculated, or even
what the price of the land itself was?
She knew that the Bank generally accepted the value of similar land
in that area as
being a R150 000.00 per hectare, as also
confirmed by Mr Brits, and the total hectares concerned appeared from
exhibit “C”.
On her own version she did in fact,
during the meeting at the farm, very easily calculate the value of
the land on the basis of
the hectares reflected in exhibit “C”
and arrived at a figure of R3 000 000.00. By simply
deducting
the R3 000 000.00 from the total purchase price
reflected in the very same document, she would have arrived at a
price
of approximately R1 580 000.00 for the crops. I
fail to see why Mrs De Kock would have needed any input from Mr
Opperman in this regard.
[78.]
Mrs De Kock’s own
evidence was, in fact, that all the information required by her in
order to approach Mr Brits for a loan
was contained in exhibit “C”.
[79.]
On the record alone,
and bearing in mind that the burden of proof in this regard had been
on the appellants, I would not have been
prepared to find, on a
balance of probabilities, that the value of the crops had at the
meeting on the farm been discussed as a
separate component of the
total purchase price reflected in exhibit “C”.
[80.]
On the basis that
fraudulent misrepresentation is not protected by a provision such as
that in clause 11, the appellants say that
representations had indeed
been made on the farm on the first occasion when Mrs De Kock viewed
the farm, that those representations
were false and that they were
made fraudulently, because Mr Engelbrecht had been aware of their
falsity.
[81.]
From
the record it appears that the appellants’ case as far as the
alleged fraud is concerned, is that there were not 10142
vines in
block “
Tjance
”
[21]
in January 2014, that the vines that had been planted there after the
loss of vines due to the frost in September 2013, were not
rooted
vines
[22]
but only cut vines,
that not all of the vines in that block had been planted in 2011
[23]
and that the representation was made to Mrs De Kock that the value of
the crops at the time of the negotiations and the visit to
the farm
was R1 580 000.00.
[82.]
Mrs De Kock’s
evidence was that the amount of R1 580 000.00 was conveyed
to her by Mr Engelbrecht as being the value
of the crop as it existed
on the day of the meeting on the farm. It is not a coincidence,
and it is indeed of some significance,
that approximately the same
figure is arrived at when one simply deducts the value of the land
from the total purchase price reflected
in exhibit “C”.
This would certainly fit in perfectly with the respondent’s
evidence that the figure of
R1 580 000.00 was never
intended as anything more than an estimate, that it was never even
discussed at the meeting on
the farm and that it was only provided to
arrive at a separate price for the land, as required by the purchaser
and/or the Bank.
[83.]
It was never Mrs De
Kock’s evidence that Mr Engelbrecht or Mr Opperman had told
her, at the meeting on the farm or at any
other stage, that there
were 10142 vines in that block and on Lot 83, or that the vines
present at the time of that meeting had
all been planted in 2011 and
were all rooted (or 143B) vines. These particulars do, however,
appear in exhibit “C”
and it would therefore appear as
though the appellants’ case is that it is the handing of
exhibit “C” to Mrs
De Kock that had constituted a
representation to her that, at the time of the meeting on the farm,
the position regarding the number
and type of vines in block “
Tjance
”
was as reflected in exhibit “C”.
[84.]
It was furthermore the
case of the appellants that only 72 tons of grapes were harvested
from block “
Tjance
”
in 2014, and that it resulted in an income of R440 000.00 less
than the figure of R1 580 000.00 represented
to Mrs De
Kock. When the vines were counted after the harvest of 2014
there were in fact only 7581 vines, in other words
2561 less than the
number reflected in exhibit “C” in respect of that
block. Also not all of the vines in existence
in that block at
the time of the meeting were 143B or rooted vines, and not all of
them were 2011 vines.
[85.]
This, according to the
appellants, meant that the representations that had according to Mrs
De Kock been made to her, had been false,
and their case was
furthermore that the inference must be drawn, apparently on
probabilities, that Mr Engelbrecht had been aware
of the fact that
there were in fact not 10142 vines in that block at the time of the
meeting on the farm, and that the vines that
had been planted there
were younger and not rooted vines.
[86.]
The question arises
whether it can be said that the handing of exhibit “C” to
Mrs De Kock had amounted to a representation
regarding the position,
specifically as far as block “
Tjance
”
is concerned, in January 2014.
[87.]
It is clear that the
information in exhibit “C” was based on the position in
2013 and on the harvest which the vines
described in exhibit “C”
had yielded in 2013. The year 2013 appears at the top of the
document, directly above
the columns indicating the tons harvested
per hectare and the income resulting therefrom. The total
number of vines reflected
in exhibit “C”, including those
reflected in respect of the block “
Tjance
”,
therefore in my view clearly referred to the position at the time
when that 2013 crop was harvested.
[88.]
The same applies to the
nature of the vines, in other words whether they were rooted or cut.
The column in exhibit “C”
in which the vines in the
particular block were described as “
Onderstok
143B
”
reflected the description of the vines in that block, and elsewhere
on the farm, as it was in 2013, at the time of the harvest,
and on
all indications before the September 2013 frost damage occurred.
[89.]
It is common cause, in
fact, that Mr Engelbrecht at the meeting on the farm in January 2014
admitted that the vines on the farm
had in September 2013 suffered
frost damage and that there were at the time of the meeting still
missing vines in the block “
Tjance
”
on Lot 83, in other words, in effect that the vines reflected in
exhibit “C” were in fact no longer all there.
[90.]
The appellants’
case was that Mr Engelbrecht had on the day at the farm represented
to them that there were only approximately
150 to 200 vines less in
that block than the number reflected in exhibit “C”,
while the respondent’s case was
that no representation had been
made regarding the number of vines short in that block.
[91.]
The evidence of Mrs De
Kock and Mr Kempen was unsatisfactory in this regard:
91.1
Mrs De Kock at first said that Mr Engelbrecht had told her that
“
150,200
”
vines were missing/dead after the frost. Later in her
cross-examination Mrs De Kock said that they had stopped at
a spot
where she was told “
here
short a few
”.
What would that have meant? At a later stage Mrs De Kock
testified that Mr Engelbrecht and Mr Opperman had
said “
here
are a few missing like in 200 or so
”.
Later yet she testified that she had in fact been told that there
were 200 vines short. Eventually she testified
that she had
been told that there were “
a
few
” vines
short or missing, which she had then interpreted to mean “
one
or two hundred
”.
91.2
In cross-examination of Mr Opperman it was put to him that a specific
area had been indicated to Mrs De Kock and that she had
been told
that there were “
a
few vines
”
[24]
missing there. It was not put to Mr Opperman that any figure
was mentioned to Mrs De Kock and the impression was created
by
counsel that it had been Mrs De Kock’s own estimate that about
150 to maximum 200 vines were missing there
[25]
.
93.3
According to Mr Kempen Mr Opperman had said “
as
you can see there are a few vines missing here”
[26]
.
But according to Mr Kempen this had been said with reference not just
to a limited area as suggested by and on behalf of
Mrs De Kock, but
as they were driving around the vineyards on Lot 83, and therefore it
would seem with reference to the vineyards
in general in that area.
Mr Kempen said that the absence of vines was visible on the outer
perimeter of the vineyards on
the side of the vehicle were Mrs De
Kock was seated. That there were vines missing over a general
area must therefore on
this version have been plain to Mrs De Kock.
Yet it is clear that she never attempted to leave the vehicle to see,
for example,
how far into the vineyards vines were missing.
93.4
At first Mr Kempen did not want to say what conclusion had been
reached as regards the number of missing vines, but when in
re-examination Mrs De Kock’s evidence in this regard was
presented to him, he not surprisingly also arrived at an estimate
of
150.
[92.]
I would therefore not
on the evidence of Mrs De Kock and Mr Kempen have been prepared to
accept that they had reason to believe
that the number of missing
vines could not have been more than 200.
[93.]
As regards the exact
number of missing vines (which was placed in dispute in the
respondent’s plea to the appellants’
counterclaim), the
evidence of Mrs De Kock that she had counted the vines after the 2014
harvest and had concluded that there were
only 7 581 vines in
the particular area, instead of the number 10 142 reflected in
exhibit “C”, appears to
have been contradicted by Mr
Mosemeng, who said that no counting of vines had been done after Mr
Engelbrecht had left. Mr
Mosemeng was also clearly unsure of
how many vines had been planted to replace those lost in the frost of
September 2013.
Not much turns on this however.
[94.]
It appears from the
evidence that if a vine is significantly damaged by frost it will
die, disintegrate and in time completely disappear.
It is
equally clear that Mrs De Kock was made aware of the fact that some
vines had indeed died and had to be replaced. It
must therefore
have been clear to Mrs De Kock that some of the vines visible and in
existence in block “
Tjance
”
in January 2014 could not be the vines referred to in exhibit “C”.
It was in fact on the evidence clear
that the difference between the
old vines described in exhibit “C” that was still there
and the newly planted vines,
was plain to see by simply comparing
their heights. In fact, Mrs De Kock herself testified that Mr
Engelbrecht had pointed
out to her that some of the vines on Lot 83
were younger than others.
[95.]
Exhibit “C”
could therefore, taking everything into account, not have brought Mrs
De Kock under the impression that
the number and type of vines in the
block “
Tjance
”
were necessarily the same as the number, age or even type reflected
in exhibit “C” in respect of that block.
[96.]
Could it in any event
on probabilities have been found that Mr Engelbrecht had, at the time
of the meeting, been aware that there
were, even after the new vines
had been planted after September 2013, not as many vines in block
“
Tjance
”
as at the time of the harvest of 2013 and as set out in exhibit “C”?
[97.]
The appellants’
case in this regard was based entirely on the assumption that Mr
Engelbrecht, as the person who had managed
the farm, must have been
aware of how many vines had been planted after September 2013 to
replace vines that had been lost as a
result of the frost, and also
of the quality and specific type of those vines.
[98.]
It appears from the
evidence, however, that Mr Engelbrecht had due to sickness in the
period preceding the negotiations and the
sale not been able to
personally manage and conduct the farming activities on the farm and
that this had actually been done by
his son.
[99.]
The
appellants’ own witness, Mr Mosemeng
[27]
confirmed that Mr Engelbrecht had for a long time not been personally
involved in the farming activities on the farm and that it
had been
Mr Engelbrecht’s son who had been involved in the planting of
the new vines.
[100.]
In the circumstances,
and on the probabilities, an inference that Mr Engelbrecht had been
aware of the fact that not enough vines
had been planted to replace
all those lost, would be unjustified.
[101.]
As regards the nature
of the vines, there was no evidence that either Mr Engelbrecht or Mr
Opperman had at that meeting on the farm
said anything at all about
the nature or type (rooted or cut) of the newly planted vines.
The only possible representation
that the appellants could have
relied on in this regard would be the description in exhibit “C”
of the vines in block
“
Tjance
”,
but as already mentioned it is clear that Mrs De Kock had, when
handed exhibit “C”, been made aware of the
fact that
things in that block were no longer necessarily as they appeared from
exhibit “C”.
[102.]
In my view it is
extremely improbable that either Mr Engelbrecht or Mr Opperman would
in the one breath disclose that the vines
on,
inter
alia
, Lot 83 and in
block “
Tjance
”
had suffered frost damage and that those vines that were there were
not all of the same age, and yet at the same time intend
to make a
representation, presumably through making exhibit “C”
available to Mrs De Kock, that the position as far
as the vines on
Lot 83 were concerned was still exactly the same as it was in 2013
and as reflected in exhibit “C”,
and furthermore that
those vines that were there in January 2014, would definitely yield
the same harvest as in 2013.
[103.]
Put another way, if Mr
Engelbrecht or Mr Opperman had through exhibit “C”
intended to mislead Mrs De Kock into believing
that the 2013
particulars contained in exhibit “C” for block “
Tjance
”
and for Lot 83 were still applicable and correct in January 2014,
they would not have disclosed the September 2013 frost
damage, the
fact that it had resulted in thousands of the vines there having to
be replaced or the fact that there were, even after
the planting of
new vines, still “
missing
”
vines, in other words, vines that should according to exhibit “C”
have been there at that stage, but were not.
[104.]
It is equally
improbable that Mrs De Kock could, in these circumstances, on that
day have left the farm under the impression that
all of the vines on
Lot 83 and in block “
Tjance
”
were at that stage the same as those that had produced 100 tons of
grapes in the previous year.
[105.]
Even if Mr Engelbrecht
had mentioned that a 100 tons of grapes were harvested from the vines
on Lot 83 in 2013, it is highly improbable
that he would under these
circumstances have intended to convey that the same could definitely
be expected from the vines on Lot
83 in January 2014, much less
guarantee that.
[106.]
In view of the
conclusion just reached it is unnecessary to consider whether the
extent of the alleged damages had in any event
been proved on a
balance of probabilities.
[107.]
In my view the appeal
should therefore be dismissed in its entirety, and there is no reason
why the costs of the appeal should not
follow the result.
[108.]
The following order is
therefore made:
THE APPEAL IS
DISMISSED WITH COSTS.
______________________
C
J OLIVIER
JUDGE
NORTHERN
CAPE DIVISION
I concur.
______________________
J
A SNYDERS
ACTING
JUDGE
NORTHERN
CAPE DIVISION
For the Appellants:
Adv J C Tredoux
(Instructed
by Haarhoffs Inc, Kimberley)
For the Respondent:
Adv J C Marais
(Instructed
by Van de Wall Inc, Kimberley)
[1]
At the
trial this document was handed in as exhibit “C”.
I will revert to its contents in due
course.
[2]
Concerning
the issue of occupational interest.
[3]
68 of 2008
[4]
See section 51(1)(g) of the Act.
[5]
See section 48 of the Act.
[6]
Kathmer Investments Ltd v
Woolworths (Pty) Ltd
1970
(2) SA 498
(AD) at 503
[7]
See para [4] and footnote 1 above.
[8]
Which was
incorporated in the counterclaim by reference.
[9]
My own
translation of the words “
geen
verklarings of voorstellings gemaak is deur of ten behoewe van die
verkoper om hierdie verkoping tot stand te bring nie
”
.
[10]
My own
translation of the words “
die
verhouding tussen die verkoper en koper uitsluitlik deur hierdie
koopooreenkoms gereël word
”
.
[11]
See the definition of “
transaction
”
in section 1 of the Act.
[12]
Compare
Firstrand Bank Ltd
(T/A Rand Merchant Bank) and Another v Master of the High Court,
Cape Town, and Others
2014
(2) SA 527
(WCC) para [22]
[13]
See
Joroy 4440 CC v
Potgieter and Another NNO
2016 (3) SA 465 (FB)
[14]
See below
[15]
Published in Government Gazette 34181.
[16]
See the definition of “
business”
in section 1 of the
Consumer Protection Act.
[17]
See,
inter alia
,
the definitions of “
supplier
”,
“
consumer
”
and ”
transaction
”,
as well as the wording of sections 41, 48 and 51 of the
Consumer
Protection Act.
[18]
2017 (1) SA 333 (SCA)
[19]
Ibid
,
paras [15] and [20]
[20]
Compare
Paterson NO v
Kelvin Park Properties CC
1998 (2) SA 89 (E)
[21]
The number of vines reflected in exhibit “C” in respect
of that block.
[22]
Like those described in exhibit “C” in respect of that
block.
[23]
As indicated in exhibit “C” in respect of that block.
[24]
My own translation of the words “
paar
stokke
”.
[25]
My own translation of the words “
omtrent
so 150 tot maksimum 200 stokke… daar weg was
”.
[26]
My own translation of the words “
soos
julle kan sien is hier ‘n paar stokkies weg
”.
[27]
Who on Mrs De Kock’s own evidence was not well-disposed
towards Mr Engelbrecht as his former employer, who had in fact
expressed a wish to kill Mr Engelbrecht and who had after the sale
of the farm stayed on in the employment of the Trust, could
never be
said to have been an independent and objective witness.