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[2016] ZAGPPHC 734
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Haffenden Groves (Pty) Ltd v Samtoy CC (A61/15) [2016] ZAGPPHC 734 (23 August 2016)
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
Case
Number: A61/15
DATE:
23 AUGUST 2016
In
the matter between:
HAFFENDEN
GROVES (PTY)
LTD
.......................................................................
APPELLANT
AND
SAMTOY
CC
.......................................................................................................
RESPONDENT
JUDGMENT
Fabricius
J,
This is an appeal against
the order made in the Court a quo by Makhubele AJ on 14 April 2014,
leave to appeal having been granted.
Plaintiff in the Court a
quo trades as an estate agent.
It pleaded in the
Particulars of Claim that Defendant, represented by Brebner, orally
gave Plaintiff, represented by Van Eyssen,
a mandate to find a
purchaser for Defendant’s property being Portion 8 and 9 of a
certain farm, at a selling price to be
negotiated by Defendant and a
purchaser and to be accepted by Defendant. This mandate was given on
3 June 2011.
It was further pleaded
that during that period, Defendant instructed the Plaintiff to
concentrate on selling the West portion. In
August 2011 Defendant
required this portion to be marketed at R 7, 650, 000. On 20 October
2011, Plaintiff introduced Van Rooyen
to this fact, as it was
pleaded.
On 27 October 2011, and
at the residence of Brebner, Defendant requested Plaintiff to pursue
the said Van Rooyen who had viewed
the West Farm about a year
earlier, but had not been satisfied with the price.
On April 2012, defendant
sold the properly to a company of which Van Rooyen's son, R. A. van
Rooyen, had been the only director,
for R 8, 800, 000.
It was alleged that
Plaintiff had been the effective cause of this sale and was thus
entitled to commission of 7.5%.
Accordingly, R 660, 000
was claimed.
In essence, apart from
surrounding circumstances, Defendant pleaded that it had instructed
Van Eyssen to find a witting and able
buyer for the West portion.
Plaintiff then demanded an exclusive mandate for a certain period,
which was granted. A copy of this
contract was annexed to the Plea.
It was pleaded that this contract would replace all others (‘A’).
Plaintiff could not
fulfil this mandate. As a consequence, and on 27 October 2011, a
second written contract of mandate was concluded,
Annexure ‘B’
to the Plea.
Defendant further pleaded
that during June 2011, Defendant Brebner, via e-mails, forwarded
details of the relevant farm to P. van
Rooyen. Brebner was also
approached directly by R. A. van Rooyen to purchase the farm. R van
Rooyen then warranted that he was
not introduced to the property
through auspices of an estate agent.
It was admitted that the
property was sold as alleged by Plaintiff. Neither Van Eyssen nor
Plaintiff, were the effective cause of
this sale, and accordingly
liability to pay commission was denied.
The relevant trial ensued
and the record of the proceedings comprises 10 Volumes of some 1020
pages.
The learned acting Judge
a quo made a particularly detailed and careful analysis of all the
evidence and found in favour of Plaintiff.
I do not intend to repeat
the detailed evidence, the crux of which is contained in the
Pleadings, and of which all details appears
in the 55 page written
judgment.
The crux of Defendant’s
case is that the general oral mandate had not been given, that P. Van
Rooyen had visited the farm
previously and had never lost Interest,
and that the particular written mandates had not been fulfilled and
had in fact lapsed
by effluxion of time.
No separate value for
each portion of the farm had been proven and accordingly the Court a
quo had erred in making an order based
on a general oral mandate.
In my view no material
error of fact or law made by the Court a quo exists, or has been
shown. The surprising feature of this case
is rather the following
and I quote from the record:
“
COURT: Mr Uys, can
I understand? You are saying Mr Brebner will say there was no mandate
to sell, an oral mandate, because Mr Van
Eyssen says there was an
oral mandate to sell and then there was the exclusive...that
exclusive mandate for two weeks that expired
and then it was replaced
by the non-exclusive mandate.
MR UYS: Correct, My Lady.
COURT: Which one is Mr
Brebner agreeing to?
MR UYS: Mr Brebner says
to me, My Lady and I am willing to concede that it is a legal
conclusion.
COURT: Yes.
MR UYS: That is why we
pleaded, we say there was this instruction, there was this meeting.
So I am willing to say though individuals,
natural persons, they did
not know what the legal consequences are, but the legal consequences
that there was a mandate prior to
the exclusive mandate...
[Intervene].
COURT: There was a
mandate?
MR UYS: It must be the
legal conclusion.
COURT: Yes.
MR UYS: I am consenting
to that. But what happens here, is this oral mandate is actually is
actually irrelevant, because that is
what Mr Brebner said. He said to
him, focus on selling the West farm, I am giving you a mandate to
sell the West farm. Then he
signed the exclusive mandate to sell the
West farm. Then he signed the non-exclusive mandate also to sell the
West farm.
The reason why this
becomes important is Your Ladyship would have noted, the commissions
that they are claiming for are for both
farms, not only for the West
farm. That is why they do not want to move away from that.
So what I am putting to
the witness and I am giving him an opportunity to respond. I am
saying, he, that is Mr Brebner, his understanding
was that when they
signed the exclusive mandate, he had given to Mr Van Eyssen and AJ
Estate Agents... the only mandate that existed
between them was that
first exclusive mandate.
COURT: To sell the West
portion?
MR UYS: To sell the West
portion only.
COURT; And there has
never been a mandate to sell the whole farm, that is what you are
saying?
MR UYS: He said he
gave... prior to that... [Intervene].
COURT: Can you put to the
witness so he can answer?
MR UYS: I am putting to
you... [Intervene].
COURT: What Mr Brebner
will testify about the mandates.
MR UYS: Yes. Mr Brebner
will testify about the mandates, that he gave you the information
about both farms, he concedes that. He
said that you never discussed
the commission. He says that he gave you all the information but he
understood that, until prior
3 July, he had given you a mandate to
seek or source a willing and able buyer. — For the whole farm.
Yes. His understanding
is, that on 3 July when he sent you that email, he changed your
mandate, he changed the Instruction. You
had a mandate to sell the
West farm and you agreed to it. — The reason that we signed the
non-exclusive... the exclusive
mandate in September, was Mr
Terreblanche had asked me to secure the farm for two weeks, so that
he could look into the finer details
for... [Indistinct] irrigation.
But in the event he wanted to buy the East portion, he would... Mr
Brebner will entertain the whole
offer.
Mr Brebner says his
understanding is when the non-exclusive mandate lapsed, he gave you
that further mandate. You asked him listen
here, our mandate had
lapsed, please give me a further mandate and he gave you a further
mandate only in respect of the West farm.
Push the farm, sell the
farm, and sell the farm.
COURT: What is being put
to you, is ... if you do not agree say I do not agree. Yes.
Is that Mr Brebner gave
you the mandate to sell the whole farm, but that was changed to the
West portion by that exclusive mandate,
right? So when he gave you
the exclusive mandate, it actually cancelled that first mandate to
sell the whole farm. He said to you,
now I want you to sell the West
portion. When that expired and he gave you the non-exclusive mandate,
that was with regard to the
West portion. Just say I do not agree or
I agree. — No, I do not agree that Mr Brebner cancelled our
original mandate.
He did not? — Our
original mandate stood to sell the whole farm.
MR UYS: But It was
changed like you conceded? — It was changed, the reason why I
asked Mr Brebner for the two week mandate,
because Mr Terreblanche
had requested that we secure the farm for two weeks so that he could
look into the finer details which
is the irrigation and hopefully in
the two weeks’ time come with an offer to purchase the farm.
COURT: And you say
that... I think we have made the point, Mr Uys. He says the
non-exclusive is actually for the whole farm, that
is his version. —
That is correct.
Any reasonable reader of
these passages would then have expected the evidence of Brebner, who
was in Court. He was however not called
as a witness, although he was
obviously the only person who could give evidence about the relevant
mandate and its scope and Plaintiff’s
role in the context of
price discussions. The Court a quo was therefore correct in holding
that Plaintiff’s evidence must
be accepted in the absence of
other factors relating to improbability or lack of credibility. No
such exist herein. Many material
common cause facts also supported
Plaintiff’s case, who met Brebner on a number of occasions to
discuss the latter’s
preference to sell the whole farm, amongst
others. The high price compared to other similar properties in the
area also played
a role.
The failure to call
Brebner in these proceedings is in my view fatal to Appellant's case.
He was Defendant’s representative
during all discussions about
a mandate. He was the only one who could dispute Plaintiff’s
version. I agree with Plaintiffs
Counsel that an adverse inference
can justifiably be made against Defendant’s whole case. It
would be an error however to
have confined Brebner's evidence to the
question of the terms of a mandate only.
See:
The South African Law of
Evidence, D. T. Zeffert and Others, Edition, page 136.
At the hearing of the
appeal, Appellant’s Counsel accepted that Plaintiff’s
version as to the mandate should be accepted.
Only the issue of the
effective cause of the sale was argued. Mr T. Potgieter SC on behalf
of Respondent, called this turn-around
“astounding”. He
submitted that the evidence was clear and that the Court a quo had
correctly dealt with the line of
causation, using the common sense
approach. See: Aida Reai Estate v Lipschitz
1971 (3) SA 871
WLD at
873 H and 874A-D.
I agree. The farm was
bought through Plaintiff’s auspices when the price had been in
the right range, and when this had come
to the knowledge of the
purchaser, which it undeniably did. Although Mr J. Maritz SC on
behalf of Appellant, conceded that Plaintiff’s
evidence
regarding the general mandate was to be accepted, this does not mean
that Brebner’s evidence, or rather the absence
thereof, becomes
irrelevant.
There are a number of
important considerations:
20.1It,
on the common sense approach, cannot be a mere co-incidence that the
farm was purchased once the price had been reduced;
20.2Brebner
was repeatedly told by Plaintiff, that the purchase price was too
high, having regard to a number of other objective
facts;
20.3Brebner
asked Van Eyssen to “pursue” Van Rooyen, even if he had
known about the existence of the farm and its initial
high price;
20.4
There is no evidence that Brebner and P. van Rooyen were in
negotiations throughout, and that Plaintiff’s activities
or
role had no effect on the ultimate sale whatsoever;
20.5The
“trigger" of the sale was the price reduction as clearly
put by Defendant’s Counsel, Mr Uys, during the
trial (Vol. 5 p.
521 - 522). This also appears from other objective facts;
20.6On
that version Mr Brebner would almost as a matter of certainty have
had to make that concession.
Apart
from the above considerations, Appellant’s problem is that the
trial Court was steeped in the atmosphere of the trial.
It made
detailed findings of fact and impressions.
It
has consistently been said that any appellate Court is very reluctant
to upset the findings of a trial Judge. A conclusion will
only be
reversed if the Court of appeal is convinced that it is wrong. If
there is a mere doubt, the correctness wiii be upheld.
See: R v
Dhiumayo
1948 (2) SA 677AD.
These
dicta apply to civil proceedings as well.
The
result is that the findings of the Court a quo cannot be disturbed.
JUDGE
H.J FABRICIUS
JUDGE
OF THE HIGH COURT GAUTENG DIVISION PRETORIA
I
Agree
JUDGE
E. MOLAHLEHI
ACTING
JUDGE OF THE HIGH COURT GAUTENG DIVISION PRETORIA
I
Agree
JUDGE
T. MOOSA
ACTING
JUDGE OF THE HIGH COURT GAUTENG DIVISION PRETORIA
Date
of judgment: 23 AUGUST 2016