About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: North Gauteng High Court, Pretoria
SAFLII
>>
Databases
>>
South Africa: North Gauteng High Court, Pretoria
>>
2015
>>
[2015] ZAGPPHC 301
|
|
McAlpine and Others v Mashishimane Communal Property Ass. and Another (A547/13) [2015] ZAGPPHC 301 (25 March 2015)
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION. PRETORIA)
APPEAL CASE NO:
A547/13
DATE: 25 MARCH 2015
NOT REPORTABLE
NOT OF INTEREST TO
OTHER JUDGES
IN THE MATTER
BETWEEN
GILROY CLEMENTS
McALPINE
.............................................................................................
First
Appellant
LEVIN ANTHONY
HIRST
.....................................................................................................
Second
Appellant
ARNOLD
PISTORIUS
................................................................................................................
Third
Appellant
and
THE MASHISHIMANE
COMMUNAL PROPERTY ASS.
…...............................................
First
Respondent
THE MINISTER OF LAND
AFFAIRS
................................................................................
Second
Respondent
JUDGMENT
LEGODI, J
[1] Enforcement of
an oral agreement which was concluded on 22 April 2007 and reduced to
writing in the form of a letter signed
by the parties on the 25 April
2007, became the subject of a dispute in the court a quo before
Ranchod J. The appellants (the plaintiffs
in the court a quo) claimed
the balance of the purchase price in the amount of R1 479 005.58 for
game and other movables purchased
by the first respondent (the first
defendant in the court a quo). Ranchod J dismissed the appellants’
claim. This appeal
is with the leave of that court.
BACKGROUND
[2] As a background,
on 20 September 2006 the Minister of Land Affairs, now Rural
Development and Land Community Reform, purchased
for the Mashishimale
Community near Phalaborwa, Limpopo, several immovable properties
collectively known as Croc-Ranch, a private
upmarket nature game
reserve which was fenced and operated by Gamevest (Pty) Ltd
(Gamevest). The purchase price agreed upon was
R104 000 000. The
properties were purchased after the Mashishimale community was
successful in a land claim lodged in terms of
Restitution of Land
Rights Act 1994
. After purchase of the property, the Mashishimale
Communal Property Association, (the first respondent) was established
in terms
of Communal Property Association Act, 1976. The Croc-Ranch
property was then transferred and registered into the name of the
first
respondent.
[3] On the 22 April
2007, the first respondent and Gamevest entered into an oral
agreement in terms of which Gamevest sold some
of its game and other
movables on the property to the first respondent for an amount of R2
500 000. The oral agreement was reduced
to writing in a letter from
Gamevest dated 22 April 2007. The letter was signed by all parties to
the agreement on the 25 April
2007. In the letter the following is
recorded:
“
1.
That the handover date from Gamevst to the CPA, has been extended by
mutual consent to 30 May 2007;
2. That a price
has been agreed for the remaining game on Croc Ranch as well as the
moveable property and equipment in an amount
of R2 500 000.00 (Two
million five hundred thousand Rand) which shall exclude the following
items:
2.1 The tractor
and 4X4 vehicle of Mr. McAlpine;
2.2 The game
privately owned by Mr. Kevin Hirst;
2.3 The guns
owned by Mr. McAlpine;
2.4 The personal
belongings of Directors, employees and contractors of Gamevest;
2.5 Buffalo which
are still on the farm but have been sold;
And that Gamevest
and/or Mr. McDonald will supply a full list of the game and moveables
purchased within three days from date hereof.
3. That the
rental, which is owed by Gamevest to the CPA is an amount of R1 080
000.00 (One million and eighty thousand Rand) being
the rental of
R216 000.00 per month for five months being December 2006, January
2007 to April 2007 and that Gamevest is relieved
from paying any
further rental for May 2007 or any further period to which the
handover date may be extended)
4. That R980
000.00 (Nine hundred and eighty thousand Rand) is to be set off by
agreement from the price of the moveables leaving
an outstanding
amount of R1 520 000.00 (One Million five hundred and twenty thousand
Rand).
5. That the CPA
will liase with professional hunter Sandy McDonald in the next thirty
days to finalise a business plan and a proposal
to the board of
Gamevest on how the outstanding balance of R1 520 000.00 will be paid
within a reasonable period.
6. That of the
remaining R100 000.00 (Hundred thousand Rand) owed by Gamevest to the
CPA, which has not been set off against the
payment for the game and
moveables, Gamevest undertakes to pay the reasonable running expenses
involved in operating the reserve
for the month of May 2007 which
shall include but not be limited to salaries, fuel, maintenance,
insurance and other necessary
expenses up to R100 000.00 and shall
account to the CPA fully on these expenses and the balance not
expended so shall also be set
off against the balance of the amount
owed on the game and moveables.
7. That the
retention monies currently held in an interest bearing investment
trust account by the transferring attorneys, Ramatwala
Lenyai
Attorneys, shall be paid over immediately to Gamevest and/or their
attorney.
8. That
professional hunter, Sandy McDonald, of McDonald Hunting Safari’s
will liase with the office of the Regional Land
Claims Commissioner
Limpopo in order to finalise a business plan for the smooth takeover
of the reserve which shall also include
a proposal to Gamevest on
paying the balance of the amount outstanding in respect of game and
moveables within a reasonable time.
9. That the
office of the Land Claims Commissioner Limpopo will assist where and
how it can, Mr McDonald in obtaining the necessary
permits to
facilitate that hunting on Croc Ranch can commence as soon as
possible on behalf of the CPA.
10. That Mr
McDonald be issued a key for the main gate of Croc Ranch and that his
employee living on the farm, the professional
hunter, “Chris”
also be issued a key for the main gate and take responsibility for
security on the farm.
11. That two
representatives of the CPA are allowed to live on the farm in order
to satisfy the CPA that the running of the farm
is conducted in
satisfactory manner.
12. That the
Regional Land Claims Commissioner Limpopo has agreed to sign a short
addendum to the agreement of sale for Croc Ranch,
a copy of which is
annexed hereto as annexure “A” and which has been signed.
13. That the CPA
has discussed granting to Mr McDonald a management contract in
respect of the running of the reserve and the hunting
concession for
a period of one year subject to a written agreement being
successfully concluded between the parties.
14. The current
status of the exemption permit for hunting and capture will remain
status quo as per instructions from the meeting
however, the profits
to be for the account of the claimants CPA / Mashishimale tribe. The
permit will then be transferred to a
designated person from the
tribe. This is to be facilitated by the Department of Environmental
Affairs and Tourism in Phalaborwa”.
[4] On the 26
January 2008, Gamevest ceded and assigned its claim against the first
respondent, to and in favour of the appellants
who were all directors
of Gamevest until approximately December 2008. On the 28 September
2008, the appellants instituted action
proceedings in terms of which
they claimed payment of the outstanding balance of the purchase price
in the amount of R1 479 005.88.
THE ISSUES
[5] In its plea, the
first respondent raised a defence which can be summed up as follows:
Gamevest failed to furnish within three
days from the 22 April 2007 a
complete list of the game and movables purchased; and that as result,
the parties did not reach consensus
on the essential terms of the
agreement and that accordingly the agreement was void, alternatively
that the agreement was invalid
and void for vagueness. The other
defence was that it was a tacit term of the agreement that the
outstanding balance of the purchase
price would be payable by the
first respondent within a reasonable time upon receipt of a State
grant payable to the first respondent
as part of the first
respondent’s successful land claim transaction and that as on
the 3 February 2010, the date on which
the plea was drafted, the
first respondent had not received the said State grant.
[6] The court a quo
having heard evidence of single witnesses from both sides, granted
absolution from the instance. Two issues
were argued in this appeal.
That is, failure to provide the list of game and movables rendered
the agreement null and unenforceable.
Secondly, that as at the time
the summons were issued, the amount has not become due and payable as
no demand was made. The other
issue which was not argued, but not
abandoned, was that State grant was a term of the agreement.
STATE GRANT
[7]
Payment of the balance of the purchase price through funding by the
state was not part of the oral and or written agreement
between the
parties. However, the court a
quo
found
that such a term can be inferred from the circumstances of the case
and the agreement as a whole. In coming to the conclusion,
the court
a
quo
expressed
itself as follows in paragraph 23 of its judgment:
“
If
a bystander were to be asked who would be paying for the game and
movables, no doubt the answer would be of course it is the
Land
Claims Commission”.
[8] Then in
paragraph 24 and at the end thereof, the court a quo stated:
“
I
am of the view that it was tacit term to be inferred from the
agreement that the payment for the Game and movable
was
subject to a
business plan being proposed and further subject to the certainty of
a State Grant by CPA”
[9] ‘CPA’
refers to the first respondent. I cannot agree with the conclusion by
the court a quo. Payment of the balance
of the purchase price was
introduced for the first time in the first respondent’s plea.
In the plea and of relevance, the
following was pleaded:
“
11.1.4
The purchase price payable by the first defendant would be R2 500 000
payable as follows:
(i)...
(ii) ...
(iii) ...
(iv) ...
(v)
The outstanding balance of the purchase price would be payable by the
first defendant within a reasonable time
after
receipt of a State Grant payable to the first defendant as part of
the first
defendant’s
successful land claim transaction
”
.
The
underlining is my emphasis.
[10] I want to
reiterate, the written agreement quoted in paragraph 3 of this
judgment was signed by all the parties on the 25 April
2007. Clearly,
the parties had time to reflect properly what was agreed upon.
Payment of the balance of the purchase price on condition
of the
State grant to the first respondent was not recorded in the
agreement. However, Mr Malatji, the only witness for the first
respondent, in his evidence, stuck to the fact that payment of the
balance of the purchase price was subject to the State grant
and the
court a quo agreed, having found that such a term can be inferred.
[11] It all started
with an oral agreement on the 22 April 2007. The agreement was
reduced to writing and signed on the 25 April
2007. Neither of the
parties immediately after 25 April 2007 raised the State grant as a
condition for payment of the balance of
the purchase price. Secondly,
importation of ‘payment after the State Grant’ into the
agreement is a direct contradiction
to ‘payment within a
reasonable time’ as clearly recorded in clauses 5 and 8 of the
agreement. The court must be satisfied
that both parties did in fact
agree to the term. I am not satisfied that on the facts of the case,
the court a quo could have been
satisfied that the parties agreed to
such a term. Gamevest was run by directors with vast experience in
business ventures. They
would not have agreed to a term that was so
uncertain. Put this way, they would not have abandoned their game and
other movables
on the farm and be content with a term that may not
happen, as it turned to be the case here.
FAILURE TO MAKE
DEMAND FOR PAYMENT
[12]
The first respondent was never placed in
mora.
The
agreement relied upon requires payment to be made within a reasonable
time. It is trite law that where no time for performance
is fixed by
the agreement relied upon, the party requiring performance should
place the other contracting party in
mora
by
demanding performance by a fixed date, so was the contention on
behalf of the first respondent. I can find no basis for this
submission in the circumstances of the present case.
[13] The appellants
did not claim for damages arising from the breach and cancellation of
the agreement. They enforced their rights
in terms of the agreement
by claiming payment of the balance of the purchase price in terms of
the agreement. Therefore, summons
should be seen as a demand on the
first respondent. The suggestion that a date for payment should have
been fixed in the summons
has no basis.
[14] At the risk of
repetition, the first respondent in paragraph 11.1.4 (v) of its plea
pleaded as follows:
“
(v)
The outstanding balance of the purchase price would be payable by the
first defendant within a reasonable time after receipt
of a State
Grant payable to the first defendant as part of the defendant’s
successful”.
[15]
As indicated earlier, state grant was never a term of the agreement.
The period within which payment of the purchase price
or balance
thereof was to be made, is clearly spelt out in clauses 5 and 8 of
the agreement quoted in paragraph 3 of this judgment.
It did not
appear to be in dispute that six months was a reasonable period as
envisaged in clauses 5 and 8 of the agreement. What
counsel for the
first respondent suggested, amounted to that the summons having been
served during or about September 2008, a date
for payment about or
during March 2009 should have been fixed in the summons. It was not
necessary to place the first respondent
in
mora.
As
I said, the appellants were enforcing their rights in terms of the
agreement and service of the summons was sufficient to place
the
first respondent in
mora.
In
terms of clauses 5 and 8, the reasonable period of six months would
have taken effect from the 23 April 2006. Therefore as in
September
2008 a reasonable time for payment of the balance of the purchase
price had long passed. I now turn to deal with the
last issue.
FAILURE TO PROVIDE
THE LIST
[16] In clause 2 of
the agreement, is stated as follows:
“
...
Gamevest and or Mr
McDonald will supply a full list of the game and the movables
purchased within three days from date hereof’.
[17] ‘Date
hereof refers to the 22 April 2007. The issue was strongly argued by
counsel on behalf of the first respondent.
It was common cause that
the list was never provided. The court a quo in dealing with the list
expressed itself as follows:
“
13.
Insofar as the provision of the list of the game on the farm within
three days is concerned, the plaintiff has failed to provide
any
evidence that Gamevest has in fact done
so”.
[18] The court a quo
then indicated that Mr McDonald was a professional hunter who was
carrying on hunting operations on the farm.
Mr Bekker testified that
since Gamevest no longer had anyone on the farm, it was for Mr
McDonald to produce that list but that
the agreement was however
clear. It was either Gamevest or McDonald or both of them who were to
have provided the list and that
while the primary obligation to
produce the list rested on Gamevest, if it was unable to do so
because it was no longer represented
on the farm, then Mr McDonald
would do so on its behalf as he had continued conducting the hunting
operations there.
[19] Perhaps a brief
background relevant hereto is necessary. During October 2006 formal
counting of the game on the farm was done.
The counting was conducted
from a helicopter hovering over the farm and it took three days to
complete. A list of the counted game
was compiled and also presented
to the representatives of the first respondent. On the morning of the
22 April 2007 and before
sale agreement in respect of the game and
movable was concluded, a tour of the farm was undertaken. All parties
were present. Upon
return, Mr Bekker the only witness for the
appellants had a discussion with one Mr Shelote from the Regional
Land Claims Commission.
Mr Shelote had been the head negotiator on
behalf of the first respondent. The price for the game and other
movables was discussed.
Mr Bekker testified that Mr McDonald who was
doing hunting operations on the farm was called to give an indication
regarding the
price. Mr McDonald and Shelote had a discussion. Mr
Bekker was again approached and a R2 500 000 price was suggested to
which Mr
Bekker agreed. Mr Shelote had a discussion with the
representatives of the first respondent. In a joint meeting, all the
parties
agreed on the terms as quoted in paragraph 3 of this
judgment.
[20] However, Mr
Malatji the only witness for the first respondent suggested that
payment of the purchase price agreed upon was
subject to the
provision of the list within three days from the 22 April 2007. It
was necessary to have the list as they wanted
to know exactly what
they were purchasing, so was the evidence. However, Mr Bekker in his
evidence vehemently denied the suggestion.
[21] In
cross-examination, Mr Bekker repeated himself on the issue as
follows:
“
There
was no conditions or pre-conditions to payment. Gamevest had agreed
with the first defendant that payment would be made within
a
reasonable period of time. If Gamevest, for example, had not provided
the list, the obligation to pay would not have fallen away
so I
remind the court that at that point in time we were negotiating the
handover of the farm, in fact, Game Vest was not in charge
anymore of
the day to day operations of the farm. ... there was a high fence
around the farm with a gate and to the best of my
recollection, one
of the two representatives of the first defendant had a key and the
farm manager had a key”.
[22] According to Mr
Bekker, the agreement was clear. The price of R2 500 000 was ‘for
the remaining game on Croc Ranch as
well as the movable property and
equipment’ as recorded in clause 2 of the agreement. It looks
like the real essence for
the business plan and the list, was to
enable the first respondent to approach the second respondent for
funding. But, that was
never a condition for payment of the purchase
price. The list was never meant to change the price already agreed
upon. The first
respondent and McDonald were to talk amongst
themselves, prepare a business plan and compile a list of the
remaining game. They
were then required to make a proposal to
Gamevest for payment of the balance of the purchase price as
envisaged in clauses 5 and
8 of the agreement. Such payment was to be
done within a reasonable period. Mr McDonald was the person
conducting hunting operations
on the farm. So, if the first
respondent wanted to do business with McDonald, he would have told
them what he had hunted in the
meantime. That was a matter between Mr
McDonald and the first respondent. The appellants had nothing to do
with the negotiations
between the first respondent and McDonald. All
what the appellants had, was the agreement in terms of which the
first respondent
was to pay R2 500 000 for the remainder of the game
and movables on the farm, so was the contention on behalf of the
appellants.
I tend to agree.
[23] The business
plan and the list of the game were meant to be used for funding from
whatever source. But, that did not affect
the first respondent’s
obligation to pay the balance of the purchase price within a
reasonable time from 22 April 2007. Gamevest’s
failure to
provide the game list as quoted in clause 2, did not suspend the
obligation by the first respondent to pay the balance
of the purchase
price within a reasonable time.
[24] Consequently I
would propose to make an order as follows:
24.1 The appeal is
upheld with costs.
24.2
The whole of the court a
quo
’
s
judgment and order are hereby set aside and substituted as follow:
24.2.1
“
Judgment is hereby granted in the amount
of R1479 005.88
24.2.2
The first defendant to pay interest on the said
amount of R1 479 005.88 calculated from the date on which the summons
were served
to date of payment;
24.2.3 The
first defendant to pay the costs of the action”
M F LEGODI
JUDGE OF THE HIGH
COURT
I, AGREE IT SO
ORDERED
C P RABIE
JUDGE OF THE HIGH
COURT
I AGREE
S
A M BAQWA
JUDGE OF THE HIGH
COURT
FOR THE APPELLANT:
ADV H S HAVENGA SC
INSTRUCTED BY:
JURGENS BEKKER ATTORNEYS
C/O E Y STUART INC.
Suite 202,
Waterkloof Gardens Office Block
270 Main Street
Brooklyn, PRETORIA
REF: E Y
STUART/cu/33858 (MAT27)
TEL: 012 346 2302
FOR THE RESPONDENT:
ADV G F HEYNS
INSTRUCTED BY:
HARTZENBERG INC.
2
nd
Floor, Hatfield Corner
101 Burnett Street
cnr of Hilda Street
Hatfield, PRETORIA
REF: F
Hartzenberg/AvDJM304
TEL: 012 362 8994
APPEAL HEARD ON: 18
FEBRUARY 2015
JUDGMENT RESERVED:
18 FEBRUARY 2015
JUDGMENT HANDED
DOWN: