About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: High Court, Northern Cape Division, Kimberley
SAFLII
>>
Databases
>>
South Africa: High Court, Northern Cape Division, Kimberley
>>
2016
>>
[2016] ZANCHC 13
|
|
Gwk Properties (Pty) Ltd v Sanchoscope (Pty) Ltd (1832/2015) [2016] ZANCHC 13 (19 February 2016)
IN
THE HIGH COURT OF SOUTH AFRICA
(Northern
Cape High Court, Kimberley)
Reportable:
NO
Circulate
to Judges:
YES
Circulate
to Magistrates:
NO
Circulate
to Regional Magistrates:
NO
CASE
NO:
1832/2015
DATE
HEARD:
12/02/2016
DATE
DELIVERED:
19/02/2016
In
the matter between:
GWK
PROPERTIES (PTY)
LTD
Applicant
-
and -
SANCHOSCOPE
(PTY)
LTD
Respondent
Coram:
Olivier J
JUDGMENT
Olivier
J:
[1.]
This is an opposed application for summary
judgment in the amount of R500 000.00, interest thereon and
costs.
[2.]
The cause of action set out in the
particulars of claim is briefly as follows:
2.1
The defendant, Sanchoscope (Pty) Ltd, had granted the plaintiff, GWK
Properties (Pty)
Ltd, a mandate to sell the defendant’s farm
Windsor “
for at least
R11 000 000.00
”.
2.2
The agreement had furthermore been that, if the plaintiff “
duly
”
performed in terms of the mandate, it would be paid commission in the
amount of R500 000.00.
2.3
The plaintiff then introduced Mr Piet Uys to both the defendant and
the property.
2.4
The Piet and Elodie Uys Family Trust
[1]
subsequently purchased the farm for R9 000 000.00.
2.5
It was alleged that the plaintiff had therefore been the effective
cause of the sale
and that the plaintiff had “
duly
performed its obligations in terms of the mandate
”.
[3.]
In
his opposing affidavit the deponent for the defendant, and the person
who had acted on its behalf in granting the mandate, Mr
J Badenhorst,
denied that the plaintiff had been the effective cause of the sale
and he denied the allegations that the plaintiff
had introduced the
purchaser to the property. He stated that the defendant had
never granted the plaintiff a sole mandate
[2]
,
that Mr Uys had been his neighbour for years and was well acquainted
with the property and that he himself (Mr Badenhorst) had
also
informed Mr and Mrs Uys of the fact that the farm was for sale.
[4.]
Mr
Badenhorst went on to state that he had told Mr and Mrs Uys that the
plaintiff was also marketing the farm and that, should
commission be
payable to the plaintiff, they
[3]
would be liable to pay the commission. He stated that the
defendant therefore intends joining the Trust on this basis.
[5.]
There is nothing inherently improbable in
the denial that the defendant’s representative had introduced
the purchaser to the
farm and to Mr Uys, nor in the allegations that
Mr Uys was acquainted with the farm and that Mr Badenhorst himself
had discussed
the sale of the farm with Mr Uys, and on this basis
alone I would be inclined to grant the defendant leave to defend the
action.
[6.]
Mr
Badenhorst’s denial and allegations regarding the actual cause
of the sale of the farm are in direct conflict with the
allegations
in this regard in the particulars of claim and “
where
an issue of fact is in doubt summary judgment should not be
granted
”
[4]
.
[7.]
There is, however, another problem with the
cause of the action as set out in the particulars of claim. On
the plaintiff’s
own allegations it in fact did not duly perform
in terms of its mandate. The farm was sold for R9 000 000.00,
instead
of the minimum amount of R11 000 000.00. Ms
Stanton, counsel for the plaintiff, conceded that the application for
summary judgment should on this basis alone fail.
[8.]
At
the very least the plaintiff can in any event, and on the allegations
in the particulars of claim, not claim commission in an
amount which
was on the face of it calculated on the basis of a minimum purchase
price of R11 000 000.00
[5]
.
It is clear from annexure “A” to the particulars of claim
that the amount of commission to which the plaintiff
would have been
entitled, had it duly executed its mandate, was calculated on the
basis of a purchase price of at least R11 000 000.00.
[9.]
This makes it unnecessary for me to
consider whether the plaintiff has made out a case that this court
has jurisdiction in the action,
and therefore also in the application
for summary judgment. There is no specific allegation in this
regard in the particulars
of claim. According to the allegation
in paragraph 2 of the particulars of claim the defendant’s
registered address
is in the Free State Province.
[10.]
It was indeed alleged, in paragraph 3.1 of
the particulars of claim, that the mandate agreement was concluded on
the farm Windsor,
Modderrivier, and the court would normally have
been inclined to take judicial notice of the fact that Modderrivier
falls within
this court’s jurisdiction. The problem,
however, is that it was alleged, in paragraph 2 of the particulars of
claim,
that Modderrivier falls in the Free State Province.
[11.]
According
to the “
Search
Works print-out
”
annexed to the particulars of claim the farm is situated in the
Northern Cape Province. The fact that the defendant
did not in
its opposing affidavit raise the issue of jurisdiction would possibly
have favoured the plaintiff had it been necessary
to decide this
issue
[6]
.
[12.]
In
his heads of argument Mr Rust, the attorney for the defendant,
submitted, with reference to the provisions of sub-rule (9)(a)
of
Uniform Rule 32, that the plaintiff should be ordered to pay the
costs of its unsuccessful application for summary judgment
[7]
,
and indeed on the punitive scale of attorney and client. He
also sought an order that the action be stayed until such costs
have
been paid.
[13.]
On
the papers there is no indication that the plaintiff had before
lodging the application for summary judgment known what the
defendant’s defence/s would be. Mr Rust’s
submission that plaintiff should have realised
[8]
that the defendant’s averments would, if proven, constitute a
valid defence, loses sight of the argument advanced on behalf
of the
plaintiff that those averments are inherently improbable
[9]
.
It may for example be argued that, if Mr Badenhorst knew nothing
about the plaintiff’s representative having made
contact with
the Trust and therefore had no reason to believe that the plaintiff
could on any basis be entitled to commission in
the event of the
Trust purchasing the farm, he would have had no reason to warn the
representatives of the Trust of a possible
liability towards the
plaintiff.
[14.]
On the other hand the plaintiff chose to
bring an application for summary judgment in circumstances where it
should have been obvious
that it was doomed to fail on the
plaintiff’s own version, as pleaded in the particulars of
claim.
[15.]
In
my view the plaintiff should because of this alone be liable for the
costs of this application. The fact that this issue
was not
raised in the opposing affidavit makes no difference. The
defendant was entitled to raise it at the hearing
[10]
.
In the circumstances it would be unfair if costs were to be costs in
the cause, because that would mean that the defendant
could later end
up paying the costs of the futile application for summary judgment.
[16.]
Mr Rust eventually conceded that there is
no basis for a punitive costs order, but I think that the action
should be stayed pending
payment of costs. Ms Stanton did not
contend otherwise and it is not for me to speculate on how the
plaintiff may attempt
to overcome the problem of the farm having been
sold at less than the agreed minimum price.
[17.]
In the premises therefore the following
orders are made:
1.
THE APPLICATION FOR SUMMARY JUDGMENT IS
DISMISSED.
2.
THE DEFENDANT IS GRANTED LEAVE TO DEFEND
THE ACTION.
3.
FURTHER PLEADINGS AND NOTICES WILL BE
FILED AS IF NOTICE OF INTENTION TO DEFEND WAS FILED ON THE DATE OF
THE DELIVERY OF THIS JUDGMENT.
4.
THE PLAINTIFF IS ORDERED TO PAY THE
COSTS OF THE APPLICATION FOR SUMMARY JUDGMENT AND THE ACTION IS
STAYED PENDING THE PAYMENT OF
SUCH COSTS.
______________________
C
J OLIVIER
JUDGE
NORTHERN
CAPE DIVISION
For the
Applicant:
Adv A Stanton
Instructed
by:
Duncan & Rothman Inc.
For the
Respondents:
Mr J M Rust
Haarhoffs
Ing.
[1]
Of
which the said Mr P Uys had presumably been a representative.
[2]
Which
may otherwise have deprived the plaintiff of the right to sell the
property itself; See
The
Firs Investment Ltd v Levy Bros Estates (Pty) Ltd
[1984] ZASCA 20
;
1984 (2) SA 881
(A) at 886B - C
[3]
Or
presumably the Trust represented by them.
[4]
Nkungu
v Johannesburg City Council
1950
(4) SA 312
(T) at 314E
[5]
See
Wynland
Properties CC v Potgieter and Another
1999 (4) SA 1265
(C) at 1275C-E
[6]
Bonugli
and Another v Standard Bank of South Africa Ltd
2012
(5) SA 202
(SCA), para’s [22] and [23]
[7]
Rather
than the usual order that the costs be costs in the cause.
[8]
Presumably
after the opposing affidavit had been filed.
[9]
Compare
Breitenbach
v Fiat SA (Edms) Bpk
1976 (2) SA 226
(T) at 228B;
Standard
Bank of South Africa Ltd v Panayiotts
2009 (3) SA 363
(W) para [40]
[10]
Summary
Judgment : A Practical Guide
,
Van Niekerk
et
al
,
para 11.3.2