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[2016] ZAFSHC 81
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Peter Thormahlen Safaris CC t/a Thormahlen and Cochran Safaris v Van der Walt t/a Cheetau Safaris (3784/2015) [2016] ZAFSHC 81 (26 May 2016)
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE D
I
VISION, BLOEMFONTEI
N
Case
No: 3784/2015
Not
Reportable
Not
Of Interests to other Judges
Circulate
to Magistrates
In
the matter of:
PETER
THORMAHLEN SAFARIS CC t/a
THORMAHLEN
& COCHRAN
SAFARIS
APPLICANT
and
WERNER
VAN DER WALT t/a CHEETAU SAFARIS
RESPONDENT
CORAM:
NAIDOO, J
HEARD
ON:
17 MARCH 2016
JUDGMENT
BY:
NAIDOO, J
DELIVERED
ON:
26 MAY 2016
NAIDOO
J
[1]
This is an application in which the applicant seeks the following
order:
"1.
The Respondent is ordered to deliver the correct lion, as purchased
by
the Applicant from the Respondent, within a period of fourteen
days from the date of this Order to the Applicant;
2.
If the Respondent fails to deliver the abovementioned lion as
ordered, that the
Sheriff be authorised and directed to take such
steps on behalf of the Respondent to deliver the correct lion to the
Applicant;
3.
The Respondent is ordered to pay any costs incurred by the Sheriff in
order to
deliver the lion to the Applicant;
4.
Alternatively and if it is impossible to deliver the correct lion to
the Applicant,
that the Respondent be ordered to pay an amount of
R480
000.00
plus VAT to the Applicant;
5.
The applicant is ordered and directed to deliver the wrong lion, to
the Respondent
upon delivery of the correct lion alternatively upon
receiving the payment of the amount of R480 000.00 plus VAT.
6.
The Respondent is ordered to pay any costs incurred by the Applicant
in order
to deliver the wrong lion to the Respondent;
7.
The Respondent is ordered to pay the costs of this Application;
8.
Further and/or alternative relief”
The
respondent opposes the application. The applicant was represented in
this court by Mr C Coetzer and the respondent by Mr HJ
Cilliers
BACKGROUND
[2]
A director of the applicant and deponent to the Founding Affidavit,
Friederich Peter Johann Thormahlen (Thormahlen)) is a professional
hunter and hunting outfitter, with more than fifteen years'
experience in the big game trophy hunting industry in Africa. The
applicant's main business activity comprises tours and hunting
safaris to overseas based trophy hunters in South Africa and other
African countries. Thormahlen saw an electronic advertisement in
which a male lion was advertised for sale and to be hunted in
the
Kalahari Region. The sale price of the lion was Five Hundred and
Fifty Thousand Rand (R550 000.00). A photograph of the lion
was
included in the advertisement. The respondent, Werner Van Der Walt
(Van Der Walt), was responsible for placing the advertisement.
Thormahlen contacted Van Der Walt and after the terms and conditions
were discussed, via electronic mail (e-mail), the parties
entered
into an agreement, on 5 June 2014, in terms of which the applicant
bought the lion from Van De Walt.
[3]
The purchase price included:
•
2 days for a professional
hunter and client
•
All food and
accommodation
•
Trackers and skinners
•
A hunting vehicle
•
All permits and paperwork
The
applicant paid a deposit of Two Hundred and Fifty Thousand Ran (R250
000.00) to the respondent on 5 June 2014. The applicant
thereafter
paid an amount of R280 000.00 to the respondent on 19 June 2014,
which amount he avers was the balance outstanding.
The applicant
immediately marketed the lion to an overseas hunter for $100 000.00
USD, and it was arranged that the client of the
applicant would hunt
the lion on 21 June 2014. The respondent was informed accordingly and
was requested to obtain the necessary
permits. In preparation for the
hunt, the applicant alleges that the respondent transported the lion
to a farm in the North West
Province. The respondent denies this
alleging that the lion remained in Bethlehem. Nothing much turns on
this, however.
[4]
The respondent, however, failed to obtain the necessary permits and
the hunt did not take place. The applicant marketed the
lion again,
this time to a hunter from Russia, and informed the respondent
accordingly. Once again, the hunt did not take place
as the
respondent failed to secure the necessary permits. After certain
discussions between the parties, the respondent offered
to buy the
lion back from the applicant, which the latter accepted. The
respondent, however, failed to honour this agreement by
not paying
the agreed purchase price. After much correspondence and
communications between the parties, the applicant requested
the
respondent to deliver the lion to a farm, belonging to a Marthinus
Steyl (Steyl), in Winburg, Free State Province, which the
respondent
did on 7 July 2015. Only an employee of Steyl was present at the time
of delivery of the lion. Steyl only saw the lion
on 27 July 2015. He
took photographs of the latter mentioned lion and indicated to the
applicant that this was not the same lion
that was sold to the
applicant. Thormahlen formed the same opinion after viewing the
photographs. He telephoned the respondent
and indicated to him that
he had delivered to the applicant a different lion to the one that
the applicant had purchased. The respondent
apparently insisted that
he delivered the correct lion.
[5]
The applicant alleges that the respondent breached the contract
between them firstly because the two scheduled hunts did not
take
place due to the respondent's failure to obtain the necessary permits
and secondly, because the respondent delivered the wrong
lion to it.
The applicant chose not to cancel the agreement but to claim specific
performance, alternatively the payment of the
amount claimed in the
notice of motion.
[6]
The respondent, in his opposing Affidavit, raised three points
in
limine.
In the first point, the respondent alleges that an
entity known as Distant Star Trading 126 CC (Distant Star) conducts
business
as Cheetau Safaris and that he, at all times, acted as a
representative of Distant Star when he concluded the agreement with
the
applicant. The applicant's failure to join the close
corporation as a party to these proceedings is fatal to his
application,
which falls to be dismissed as a result of such non
joinder. The second point
in limine
is the non-joinder
of Marthinus Steyl, to whose farm in Winburg the lion was delivered.
The respondent alleges that the applicant
had indicated that Steyl
had purchased the lion from it and the lion was delivered to Steyl's
farm. As a result he has a direct
and substantial interest in these
proceedings. The non-joinder of Steyl as a party to these proceedings
should result in the dismissal
of the application. The third point
in
limine
raised by the respondent is that the
applicant was aware or ought reasonably to have foreseen, prior to
bringing this application,
that a genuine dispute of fact exits with
regard to the delivery of the correct lion. Such dispute involves a
factual question
which could only be determined upon the hearing of
evidence. The applicant ought not to have proceeded by way of
application proceedings,
and on this basis, the application should be
dismissed.
[7]
The existence and identity of Distant Star only came to light in the
respondent's opposing affidavit and appeared nowhere else
in the
papers relevant to the conclusion of the agreement between the
parties. Mr Cilliers conceded, during argument before me,
that he
could not take the matter of the non-joinder of the close corporation
any further and did not pursue that point. The issue
of the
non-joinder of Steyl was also not pursued by My Cilliers and it is
not necessary for me to deal any further with these two
points
in
limine.
Both parties agree that the real and main dispute between
them is whether the lion delivered to Steyl's farm was the lion which
the applicant purchased. The respondent also raised the issue of the
applicant's failure to pay the full purchase price, and therefore,
itself did not comply with the terms of the agreement. In its
Replying Affidavit, the applicant expressed the view that referring
the issue of the identity of the lion to oral evidence will not take
the matter further, as both Thormahlen and Steyl would simply
repeat
that they had not physically inspected the lion that was purchased.
The applicant seeks a ruling in its favour on this aspect,
based on
the photographs attached to the papers. In the alternative, the
applicant seeks an order for the referral of the matter
to oral
evidence. Mr Coetzer repeated this during his address before me, and
indicated that the matter should be referred to oral
evidence.
ISSUES
[8]
The issues for this court to decide are:
8.1
Whether this court is able to find that the lion that was delivered
by
the respondent to the applicant is the lion that the latter had
purchased from the respondent, or whether it is a different lion;
8.2
Whether the matter should be referred to oral evidence.
The
Law
[9]
Uniform Rule 6(5)(g) provides as follows:
"Where
an application cannot properly be decided on affidavit the court may
dismiss the application or make such order as to
it seems meet with a
view to ensuring a just and expeditious decision. In particular, but
without affecting the generality of the
aforegoing, it may direct
that oral evidence be heard on specified issues with a view to
resolving any dispute of fact and to that
end may order any deponent
to appear personally or grant leave for him or any other person to be
subpoenaed to appear and be examined
and cross-examined as a witness
or it may refer the matter to trial with appropriate directions as to
pleadings or definition of
issues, or otherwise."
[10]
The general rule regarding the approach of the court where material
facts are in dispute was stated nearly sixty years ago
in the case of
Stellenbosch Farmers'
Winery
Ltd
v
Stellenvale Winery
(Pty) Ltd
1957(4) SA 234 (C),
where the learned Judge said
at page 235
"It
seems to me that where there is a dispute as to the facts a final
interdict should only be granted in notice of motion
proceedings if
the facts as stated by the respondents together with the admitted
facts in the applicant's affidavits justify such
an order"
This
applies to any final order that is sought on notice of motion. The
Stellenbosch case was followed in a long line of cases,
one such
being the often quoted
Plascon-Evans
Paints
Ltd v
Van Riebeeck
Paints (Pty)
Ltd 1984(3) SA 623 (A) at 634
where the court remarked that "It
is correct that, where in proceedings on notice of motion disputes of
fact have arisen on
the affidavits, a final order, whether it be an
interdict or some other form of relief, may be granted if those facts
averred in
the applicant's affidavits which have been admitted by the
respondent, together with the facts alleged by the respondent,
justify
such an order".
[11]
Rule 6(5)(g) affords the court the discretion either to dismiss the
application if a dispute of fact arises and the court cannot
properly
decide the matter on the papers, or to make an order that is
appropriate or fair. The object of the order is to ensure
a speedy
and just resolution of the issues between the parties. The sub-rule
provides for the referral of the disputed issues for
oral evidence as
one of the possible orders that the court can make, if the
circumstances of the matter warrant such an order.
Application
of the Law
[12]
The applicant purchased the lion from the respondent in June 2014.
For the twelve months following the conclusion of the contract,
the
respondent failed on two occasions to secure the necessary permits
that he was obliged to obtain in terms of the contract.
The applicant
alleges that the respondent then offered to buy back the lion from
the applicant who accepted the offer. The respondent
failed to pay
the purchase price to the applicant and that agreement was not
concluded. The respondent then delivered a lion to
the applicant
thirteen months later. The applicant relies on the photographs of the
lion taken in 2014 when the agreement was concluded,
and those taken
in July 2015, when the lion was delivered, to base his allegations
that the lion he purchased was not the one that
was delivered. The
respondent insists it is the same lion and that a lot could have
happened in the intervening 13 months to alter
the appearance of the
lion.
[13]
In addition, the respondent alleges that the lion in question is
called Tyson and bears a micro-chip implant with number 711024456.
The respondent alleges that Distant Star purchased Tyson in 2012, and
thereafter the micro-chip was implanted into Tyson. I pause
to note
that reference to the name of the lion and the micro-chip was
mentioned for the first time in the Answering Affidavit.
The issue of
whether the correct lion was delivered was raised by Thormahlen, on
behalf of the applicant, with the respondent during
or about July
2015, after Thormahlen saw the photographs of the lion taken by
Steyl. No mention was made, at that stage, of the
name of the lion
nor was any attempt made by the respondent to resolve the matter by
providing the applicant with the necessary
documentation. The
respondent, instead, asked the applicant to take it up with his
(respondent's) attorney.
[14]
The applicant compared the physical features of the lion in the
photograph attached to the electronic mail advertising the
lion for
sale (the first photograph) with those of the lion in the photograph
that Steyl took (the second photograph). While the
lion in the first
photograph does indeed look like it has straighter hair and a larger
mane than the lion in the second photograph,
I note that the lion in
the first photograph is facing to the right of the photograph so that
the right hand side of its body is
closest to the camera, while the
lion in the second photograph is facing left so that the left hand
side of its body is closest
to the camera. The light in the first
photograph is different to that in the second photograph. The
applicant also indicates that
the one lion has more facial scars than
the other and one has a pink nose while the other has a black nose.
These latter mentioned
features are not at all discernable simply by
looking at the photographs.
[15]
It must also be borne in mind that the first photograph was taken at
least thirteen months prior to the second photograph.
It could, of
course, have been longer than thirteen months, as there is no
indication when that first photograph was taken. The
respondent
alleges that a number of factors could have affected the physical
appearance of the lion in the space of a year. That
is not an
unreasonable proposition, but, without more, it amounts to
speculation. In my view therefore,
it
cannot reasonably be concluded, by
looking at the photographs, that the lion in the first
photograph is
not the lion in the second photograph, nor can it be concluded that
it is the same lion in both photographs.
[16]
The applicant alleged that he immediately recognised the lion in the
first photograph because it was previously (prior to 5
June 2014)
advertised for sale by another person. The respondent did not take
issue with this allegation in his Answering Affidavit,
and asserted
that it was irrelevant to the issue in dispute, being the identity of
the lion. I disagree. The respondent alleges
that Distant Star
purchased the lion, Tyson, from Mpongo Game Reserve and took
possession of the lion during 2012. He attached
to his Answering
Affidavit a document purporting to be a computer printout reflecting
the details of the lions, together with micro-chip
numbers, belonging
to Distant Star. I note that although the said document reflects
Tyson, with the micro-chip number I have mentioned,
it bears neither
a date nor any indication that it is an extract from Distant Star's
records. The respondent's allegation that
Distant Star owned Tyson
since 2012, begs the question how another person was able to market
that same lion a few months prior
to the respondent selling it to the
applicant. The respondent also attached to his Answering Affidavit, a
number of photographs
of lions, which he alleges are of Tyson from
his arrival in 2012 to July 2015. These appear to be colour copies of
photographs,
with no indication of who took the photographs or where
they were taken. The notations regarding the dates are written in
manuscript
underneath some of the photographs, and are preceded by
the name "Tyson". A person perusing these copies can easily
be
forgiven for thinking that these are photographs of several
different lions, for such is the disparity in the appearance of the
lions depicted in these various photographs.
[17]
It is true that the applicant was aware, prior to the launch of this
application that the respondent's version is that he delivered
the
correct lion to the applicant. It is equally true that this has now
erupted into a factual dispute, which cannot be resolved
on the
papers and would best have been dealt with in a trial. I have alluded
to the general rule regarding the approach to be adopted
in
applications where there are material disputes of fact, as set out in
the cases of Stellenbosch Farmers' Winery and Plascon-Evans.
This
rule is, however, not immutable and the court retains the discretion
to make other appropriate orders in terms of rule 6(5)(g).
The
respondent seeks the dismissal of the application on the ground that
the applicant was aware of or should reasonably have foreseen
that
the issue of the identity of the lion would give rise to a factual
dispute, so that it should have proceeded by way of action
and not
motion proceedings.
[18]
While it cannot be said that the respondent's version is far-fetched
or untenable, which therefore, justifies the dismissal
of the
application, my view is that the questions which have now arisen as a
result of the averments and allegations in the
Answering
Affidavit, entitle this court to invoke the discretion conferred upon
it by Uniform Rule 6(5)(g). The court's responsibility
is to ensure
not only an expeditious resolution of the dispute between the parties
but also to see that justice is done between
the parties. This,
in my view, is a fitting case to refrain from adopting a strictly
legalistic approach and to afford the applicant
the opportunity to
have his case properly ventilated. The physical attributes of the
lion in question, which the applicant relies
on to base his claim,
the issue of whether the appearance of a lion can change
substantially by loss of hair (as alleged by the
respondent), the
industry specific practices, such as purchasing a lion simply by
looking at a photograph (as alleged by the applicant)
as well as
other issues related to the identity of the lion that was purchased
by the applicant, can best be resolved by examining
and cross
examining the deponents to the affidavits in this matter and any
other witness or witnesses that the parties deem
necessary to call. I
find, therefore, that this court is unable to determine whether the
lion that the respondent delivered to
the applicant is the lion that
the applicant purchased from the respondent or whether it is a
different lion. I also find that
the dispute cannot be properly
resolved on the papers and that it is necessary to refer the matter
for the hearing of oral evidence
in order for the dispute to be
properly interrogated and resolved. The court hearing oral evidence
would then be better placed
to consider the relief sought by the
applicant in the Notice of Motion.
ORDER
[19]
In the circumstances, I make the following order:
19.1
In terms of rule 6(5)(g) the matter is referred for oral evidence in
respect of the following issues:
19.1.1
Whether the lion delivered to the applicant is the same lion
purchased by the applicant from the respondent;
19.1.2
What amount, if any, the applicant is entitled to claim in respect of
damages or loss.
19.2
The parties may supplement the papers in this matter, to the extent
necessary;
19.3
The parties shall be entitled to call any witness, including those
who have deposed to affidavits in this
application. In the event of a
party calling witnesses who have not deposed to affidavits:
(a)
such party must serve, on the opposing party, at least 15 calendar
days before the date appointed for the
hearing of the matter, a
statement in respect of each such witness setting out the nature of
the evidence to be delivered by such
witness.
(b)
Where an expert witness will be called, the party calling such
witness must comply with the Rules of Court
relating to the calling
of expert witnesses
19.4
That fact that a party has served a statement in terms of 19.3(a) and
has subpoenaed such a witness
shall not oblige such party to call
that witness.
19.5
Costs of this application are held over for determination by the
court hearing oral evidence
__________________
NAIDOO,
J
On
behalf of Applicants:
Mr JC Coetzer
Instructed
by:
Conradie Attorneys
113A Albrecht Street
Dan Pienaar
Bloemfontein
(AC Conradie/JAC0011/15)
On
behalf of Respondent: Mr HJ Cilliers
Instructed
by:
Phatshoane Henney
Cor Markgraaff &
Kellner Streets
Westdene
Bloemfontein
(MV/SJ/JP K3/0001)