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[2016] ZAGPPHC 130
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Lourens v Huurkor Kommersieel (Pty) Ltd (42515/2011) [2016] ZAGPPHC 130 (15 March 2016)
IN THE HIGH
COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
APPEAL CASE NO.:
A459/2015
CASE NO.:
42515/2011
15/3/2016
Not reportable
Not of interest
to other judges
Revised
In the matter
between:
DANIEL JOHANNES
LOURENS
Appellant
(Plaintiff
a
quo
)
and
HUURKOR
KOMMERSIEëL (PTY)
LTD
Respondent
(Defendant
a
quo
)
JUDGMENT
JANSEN J
[1]
This
appeal came before us from the Pretoria Magistrate’s Court. The
appeal relates to a civil trial which was heard by magistrate
D. Nair
on 27 March 2015. The appellant appealed to this court. The appeal
record was filed late but condonation was granted by
the court based
on the affidavits filed by the appellant’s attorney of record.
The application for condonation was not opposed.
The facts
:
[2]
A
certain Mr Muller entered into a purchase agreement with an entity
called Top Letting (Pty) Ltd (“
Top
Letting
”),
on behalf of the company Huurkor Kommersieël (Edms) Bpk
(“
Huurkor
”).
[3]
The
purchase agreement (in Afrikaans) described the assets of the
business, Top Letting, as consisting of rental agreements and
mandates as well as deposits and the rights and obligations thereto.
(These were listed as part of Top Letting’s business
in an
annex marked “A” to the lease agreement.) I pause
to mention that this agreement was entered into whilst
Top Letting
was deregistered but that the court sanctioned this transaction on 18
December 2013. However, what was sanctioned
was the
following: —
“
Entering
into and concluding an agreement with Daniel Johannes Lourens on 1
July 2010 ceding all outstanding debts due and payable
to itself to
Daniel Johannes Lourens as at the date of agreement as attached to
the founding affidavit and marked as Annexure “A”,
and/or;
The decision
made to ratify the last mentioned cession agreement by the only
director of Top Letting (Pty) Ltd, namely Janene Desire
Potgieter,
attached to the founding affidavit and marked as Annexure “D”
on 9 July 2012.”
[4]
Initially,
Huurkor pleaded in a special plea that the plaintiff had no
locus
standi
because the purchase agreement was entered into whilst Top Letting
was deregistered. Given the court order referred to, this special
plea was abandoned.
[5]
The
plaintiff, a certain Daniel Johannes Lourens, pleaded in his
particulars of claim that Top Letting ceded all its rights arising
from the purchase agreement to him, in terms of another agreement
dated 1 July 2010. Although this allegation is admitted by the
defendant, the admission is nonsensical.
[6]
The
only entity which could cede the outstanding debts in terms of the
purchase agreement was Huurkor, the purchaser of the debts
and not
Top Letting, which had sold the debts to Huurkor. The right which Top
Letting had retained was the payment of the amount
of R20 000 to
it by Huurkor. How Top Letting could have “resold”
its rights in terms of the purchase agreement
without the permission
of Huurkor is wholly unclear. The so-called “cession
agreement” is also termed a “sale”
and not a
cession. The amount paid for the alleged “cession”
by Mr Lourens, the plaintiff, was R100 00.
[7]
What
was “sold” to the plaintiff, Mr Lourens, was allegedly:
“…
Die
reg om alle uitstaande skulde van die verkoper in te vorder tot
voordeel van die rekening van die Koper. Eindendomsreg in die
riskio
en voordele verbonde aan die uitstaande skulde gaan oor op die Koper
op die datum waarop hierdie ooreenkoms deur die laaste
party
onderteken word.
”
[8]
Given
that Top Letting had already sold these rights to Huurkor, there was
nothing for Mr Lourens to purchase. Furthermore,
given the fact
that this sale agreement dated 1 July 2010, does not state what all
the outstanding “debts” of Top Letting
are, it is wholly
unclear what Mr Lourens allegedly purchased. There is no reference in
this sale agreement to the agreement between
Top Letting and Huurkor.
[9]
Once
this is so, no cause of action has been established by the appellant.
On this basis alone, the appeal should fail.
[10]
Should
the above reasoning be inaccurate, an analysis of the facts
demonstrates the following: —
[11]
In
terms of the purchase agreement between Top Letting and Huurkor the
amount of R20 000 would be payable to Top Letting as
follows, in
terms of the agreement.
“
R10 000
(Tien Duisend Rand) van die koopprys op die effektiewe datum by wyse
van bankgewaarborgde tjek of elektroniese oordrag
na die Verkoper se
genomineerde rekening; en
R10 000.00
(Tien Duisend Rand) van die koopprys voor of op 30 September 2009 by
wyse van bankgewaarborgde tjek of elektroniese
oordrag na die
Verkoper se genomineerde rekening.
Die partye kom
ooreenkom dat die Koper geregtig sal wees om op 30 September 2009
sodanige bedrae af te trek van alle huurkontrakte
wat uitgeloop het
en wat die Koper nie meer adminstreer nie. Die formule wat gebruik
sal word is die koopprys gedeel deur die aantal
eenhede soos vermeld
in Aanhangsel “A” hiertoe, beperk egter tot die maksimum
bedrag van R10 000.00 (Tien Duisend
Rand).
[12]
The
said agreement also contained the following clauses regarding
“Guarantees” (“Waarborge”).
Die Verkoper
is die eienaar van die besigheid en bates soos uiteengesit in
Aanhangsel “A” en geen ander en/of derde
person het enige
reg, titel en belang in die besigheid, bates van die besigheid nie en
sal die Koper geen ander annspreeklikhede
opdoen bo en behalwe die
annspreeklikhede wat opgedoen word in die normale gang van die bedryf
van die besigheid nie;
Daar geen
sivielregtelike en/of strafregtelike litigasie hangende, dreigend
en/of voorsienbaar teen die besigheid is nie;
Alle materiële
informasie met betrekking tot die verkoop van die besigheid is aan
die Koper geopenbaar en is die Verkoper onbewus
van enige ander
aangeleenthede en/of beperkings wat die normale bestuur van die
besigheid kan beïnvloed;
Behalwe dié
waarborge en voorstellings wat uitdruklik in hierdie ooreenkoms gegee
of gemaak word, word geen waarborge of
voorstellings gegee of gemaak,
hetsy uitdruklik of geïmpliseer nie en word die besigheid dus
voetstoots verkoop.
[13]
Annex
“A” to the agreement between Top Letting and Huurkor
consisted of seven leases (or rather mandates to lease) of
immovable
property with deposits and one without a deposit, which were
administered by Top Letting.
[14]
What
Lourens sought in the court
a
quo
was specific performance of the agreement between Top Letting and
Huurkor apparently on behalf of Top Letting. Huurkor’s
defence
was that when the agreement was entered into, four of the mandates
set out in annex “A” had already been cancelled
and that
Top Letting knew that four of the rental agreements had been
cancelled. Huurkor did not specifically plead a misrepresentation
–
merely the facts stated and that it cancelled the agreement and did
not owe Lourens anything.
[15]
The
court
a
quo
held that Top Letting was guilty of a non-disclosure and
misrepresentation and held that Huurkor was entitled to cancel the
agreement.
It bears mention that Huurkor made no payments whatsoever
to Top Letting or Lourens. The court
a
quo
held
that the misrepresentation made by Top Letting was that the seven
properties and lease agreements referred to in annex “A”
had valid mandates in favour of Top Letting when the agreement was
entered into. Huurkor’s defence was that four of the mandates
in respect of annex “A” properties had been cancelled.
These properties were Parktown Mews; 764 French Drive,
Moreleta
Park; 753 Kromdraai, Faerie Glen and 64 President Street, Silverton.
[16]
It was
submitted that fraudulent misrepresentation was not a prerequisite.
It was submitted that the misrepresentation had to be
material. It
was further submitted that if even only one mandate had been
cancelled, such misrepresentation would be material.
[17]
Reliance
was placed on the matter of
Pretorius
v Natal South Sea Investment Trust Ltd
1965 (3) SA 410
(W)
at 418D–E which finds application: —
“…
involuntary
reliance of the one party on the frank disclosure of certain facts
necessarily lying within the exclusive knowledge
of the other such
that, in fair dealing, the former’s right to have such
information communicated to him would be mutually
recognised by
honest men in the circumstances.
”
[18]
The
principle set out in the matter of
McCann
v Goodall Group Operations (Pty) Ltd
1995 (2) SA 718
(C)
at 726A similarly finds application. Van Zyl J held that: —
“…
A
negligent misrepresentation by way of an omission may occur in the
form of non-disclosure where there is a legal duty on the defendant
to disclose some or other material fact to the plaintiff and he fails
to do so.
Silence or
inaction as such cannot constitute a misrepresentation of any kind
unless there is a duty to speak or act aforesaid.
Examples of a
duty of this nature include the following:
A duty to
disclose a material fact arises when the fact in question falls
within the exclusive knowledge of the defendant and the
plaintiff
relies on the frank disclosure thereof in accordance with the legal
convictions of community.”
[19]
Mr
Lourens in the trial in the court
a
quo,
relied
heavily on clause 3.3 of the purchase agreement between Top Letting
and Huurkor which provides as follows —
“
Die
partye kom ooreen dat die koper geregtig sal wees op die 30ste
September 2009 om sodanige bedrae af te trek van alle huurkontrakte
wat uitgeloop het en wat die koper nie meer administreer nie. Die
formulier wat gebruik sal word is die koopprys gedeel deur die
anntal
eenhede soos vermeld in Aanhangsel “A” hiertoe, beperk
egter tot die maksimum bedrag van R10 000.00.”
[20]
Huurkor
emphasised the phrase “huurkontrakte wat uitgeloop het”,
in other words, rental agreements which had expired
through the
effluxion of time and not rental agreements in respect of which
mandates had been prematurely terminated. The evidence
demonstrated
that four rental agreements or mandates had not come to an end due to
the effluxion of time by the 30
th
of September 2009.
[21]
A
further important issue raised during the trial was that it is
important to keep in mind that it was the mandates to administer
the
rental agreements which were the assets of Top Letting, not the
rental agreements. It should be borne in mind that what the
agreement
actually referred to was mandates to rent and deposits as the assets
of the business.
[22]
The
status of the mandates as at 19 June 2009 was as follows: —
·
14
Parktown Mews, Mayville – mandate terminated on 17 June 2009;
(a fact conceded by Mr Lourens);
·
764
French Drive, Moreleta Park –the mandate cancelled on 2 August
2009;
·
953
Kromdraai, Faerie Glen –the mandate cancelled on 23 June 2009
(from a letter it is clear that the administrator had already
been
informed two weeks before that no letting agent would be used in
future);
·
641
President Street, Soweto, in respect of which evidence was led that
the owner instructed attorneys to obtain a rental interdict
against
the tenant prior to 25 June 2009 (with other difficulties preceding
this instruction).
[23]
The
status of the mandates was clearly unknown to Huurkor. The business
of Top Letting had in any event already closed down on 28
May 2009,
with the result that on 19 June 2009, when Top Letting sold the
mandates to Huurkor, it had not taken any steps to ascertain
which
mandates were still in effect.
[24]
From
the above, it is clear that Huurkor would never have entered into the
agreement had it been informed of the true state of affairs,
which
Top Letting had failed to do.
[25]
Mr
Lourens’s argument was sophistic. He contended that the
agreement contained a formula in paragraph 3.3 (as set out
above)
providing for a re-adjustment of the purchase prior in respect of
rental agreements which had expired and were not administered
by Top
Letting on 30 September 2009. He emphasis the word
“re-adjustment” in respect of the purchase price. In
other words, these leases had to exist and be administered by Top
Letting on 19 June 2009.
[26]
That
this is the case is emphasised by the fact that the formula that had
to be used referred to the purchase price being divided
by the
property mandates set out in annex “A”. The use of
the term “
huurkontrakte
wat uitgeloop het en wat die koper nie meer adminstreer nie”
has
been referred to above. All these factors militate against Mr
Lourens’s interpretation of the argument.
CONCLUSION:
In the premises, the
following order is proposed: -
Order
The appeal is
dismissed, with costs.
_______
M M JANSEN J
JUDGE OF THE HIGH
COURT
I agree
PATHUDI AJ
JUDGE OF THE HIGH
COURT
For the Appellant
Advocate
J H Wildenboer
;
012 303 7772; 082 923 3624
Instructed by
Morne Coetzee
Attorneys 012-751 1680 (Ref: H-CL-1691
For the
Respondent
Advocate
C M Rip
;
217 Circle Chambers; 012 424 4217; 083 288 7752
Instructed by
Du
Plessis and Eksteen Incorporated 012-567 7533 (Ref. No. Mnr
Heunis/rr/CT7101)