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[2015] ZAGPPHC 374
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Lab-Cor Trading (Pty) Ltd v Blignaut (A643/2014) [2015] ZAGPPHC 374 (8 May 2015)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION. PRETORIA
Case
No: A643/2014
DATE:
08 MAY 2015
In
the matter between:
LAB-COR
TRADING (PTY)
Ltd
............................................................................................
Appellant
(Plaintiff
a quo)
And
HENDRIK
FOUCHE
BLIGNAUT
......................................................................................
Respondent
(Defendant
a quo)
JUDGMENT
STRAUSS
AJ
1.
The
appellant claimed payment for contractual damages in the amount of R
177 840.00, in the Magistrate Court, Pretoria, for their
estate
agents commission due to them in terms of the written sale agreement
entered into between the respondent (purchaser) and
seller for the
sale of an immovable property.
2.
The
Court a quo dismissed the claim of the appellant, the appellant now
appeals against the judgment by Magistrate D Nair given
on 20 May
2014.
3.
The
appellants’ claim is based on a written agreement of sale
entered into between the respondent and seller on 15 May 2013.
The
appellant at all times relied upon clause 3.4 of the agreement of
sale a benefit stipulated in favour of the appellant that
was
accepted by the appellant.
4.
The
clause relied upon by the appellant reads as follows:
"should
the sale be cancelled as a result of either of the parties defaulting
in any of their obligations towards the other,
or for any other
reason, the defaulting party shall be liable to pay the agents
commission. Such liability is without prejudice
to whatever rights
the agent may have against the other party. ”
5.
The
estate agent employed by the appellant one Mrs D Coetzer was the only
witness who testified on behalf of the appellant, after
closing their
case the respondent also closed its case, and the court a quo gave
judgment on the evidence before it, dismissing
the appellants
claim.
6.
After
hearing argument for the respondent in the appeal almost all of the
facts that were not common cause and all the defences
raised in the
court a quo where not argued or addressed and the common cause
facts
before us are as follows:
*The
respondent and seller entered into a written sale agreement on 15 May
2013, in terms of which the respondent would purchase
for an amount
of R2.400.000 an immovable property situated at Asbestos Street,
Ryeno Heights, Witbank. An amount of R50.000 non-refundable
cash was
payable within 5 days from acceptance of the offer and the balance of
R 2 350 000 the respondent would secured by way
of a loan before 30
September 2013.
*The
appellant was a sales agent registered with Harcourt’s Witbank,
the sales agent being Mrs D Coetzer.
*
Agent commission would be calculated at
6.5 % of the purchase price plus vat.
**The
appellant had a mandate from the seller to market the property.
*
Clause 3.4 in the agreement of sale
constituted a stipulatio alteri in favour of the appellant, which she
had accepted by her conduct
although she never signed the written
agreement
*
The Consumer Protection Act 68/2008 was
not applicable to the written agreement of sale therefore the
respondent could place no
reliance
on a “cooling off period after signature of the agreement, to
cancel the agreement.
*On
17 May 2013 the respondent directed a sms to the agent stating"
Ek't
besluit om te ontrek van die koop.kanseleer asb die kontrak’
*On
20 May 2013 the respondent in an email cancelled the contract in
terms of a ‘cooling off’ period provided for in
the
Consumer Protection Act.
*The
attorneys for the seller in a letter dated 22 May 2013 accepted the
repudiation of the agreement of the respondent and indicated
to the
respondent that he was liable for the estate commission of the
appellant in terms of clause 3.4 of the agreement of sale.
*
The attorney also in a letter to the
respondent dated 22 May 2013 indicated to the respondent that the
terms of the consumer protection
act was not applicable to the
agreement.
7.
It
is argued on behalf of the appellant that the respondent with his
first purported cancelation on 17 May 2014 was in anticipatory
breach
of the agreement. His second cancelation of the agreement based on
the consumer protection act was accepted by the seller
and viewed as
a repudiation of the agreement. Damages therefore flowed from this
repudiation opening up the avenue for the appellant
to in terms of
the agreement as per clause 3.4 claim for the commission. The
respondent was in default of his obligations in terms
of the
agreement is argued.
8.
The
respondent counsel only argued one point in that there was no
completed sale, and there was also no mutual cancelation of the
agreement. This court can only find in favour of the appellant if the
court finds that the respondent was in default as set out
in clause
3.4 of the agreement of sale.
9.
Counsel
argued that neither of the parties i.e. the respondent and or the
seller defaulted in any of their obligations, it follows
that if the
respondent was not in breach of the agreement there was no
repudiation. It was argued that default in law has a context
as
default and cancelation are two different things.
10.
For
this argument counsel relied heavily on the case of Jacobs V Tenner
1971(1) 263 (T) where the following was stated at p266 C:
"the
word default has fallen for interpretation in several cases which
have been quoted to us. I do not think it necessary
to refer to any
decided cases. To my mind the word default contains an element of
reproach of negligence or other fault of some
kind and in that
respect it is not a question of deciding whether a breach has been
committed as Mr Hennig argued for the plaintiff,
but whether in fact
the purchaser has done within the period permitted to him everything
that he should have done"
11.
The
case referred to is distinguishable from the matter in casu in
several aspects. In the matter of Jacobs the seller was entitled
to
cancel the agreement of sale should the purchaser fail to make
certain payments of pay rates and taxes to the municipality or
otherwise commit any breach and remain in default for a period of 14
days. The purchaser did not pay the rates within the 14 days
in which
he was granted to remedy his failure to do. The purchaser however had
been given an extension by the municipality within
which to pay the
rates and taxes and he had then since paid the rates and taxes in the
extended period granted to him by the municipality.
The case for the
seller was argued in that as the municipality was not a party to the
agreement and it was not an agreement for
the benefit of a third
patty the arrangement and extension of the time given by the
municipality was irrelevant between the purchaser
and seller.
12.
The
matter in casu is the opposite, the appellant is a third party to
which the benefit of commission is due, and the appellant
is a party
to the agreement between the purchaser and seller. The reference to
default in this matter can therefore not be applied
to the matter in
casu.
13.
In
law a default is the failure to do something required by law or to
appear at a required time in legal proceedings. The default
in the
matter in casu is the fact that the respondent was to purchase the
property and to pay firstly the amount of R50.000 in
cash and also to
thereafter obtain a loan for the balance of the purchase price,
within a certain time. Those were the respondent’s
obligations
on signature of the sale agreement.
14.
Repudiation
occurs when one party, by words or conduct, evinces an intention not
to perform part or all of the contract When such
an event occurs, the
performing party to the contract is excused from having to fulfill
his or her obligations.
15.
The
question arises as to why any party would want to provide notice of
anticipatory breach. The reason is that once the performing
party is
informed of the anticipatory breach, a duty is then created for the
performing party to mitigate damages as a result of
the breach.
16.
In
Datacolor
International (PTY)LTD v fntamarket (PTY) LTD 2001(2) SA 284 (SCA) at
p 293
-
2941
-
H
the following was stated:
‘Where
one party to a contract, without lawful grounds, indicates to the
other party in words or by conduct a deliberate and
unequivocal
intention no longer to be bound by the contract, he is said to
“repudiate” the contract ... Where that
happens, the
other party to the contract may elect to accept the repudiation and
rescind the contract ”
“
If
he does so, the contract comes to an end upon communication of his
acceptance of repudiation and rescission to the party who
has
repudiated,
’’(per Corbett
JA in Nash v Golden Dumps (Pty) Ltd
1985 (3) SA 1
(A) at 22D-F).
“
This is the
conventional exposition of the operation of the doctrine of
repudiation leading to rescission with its emphasis on the
guilty
party’s intention and the innocent party’s acceptance. At
the same time this court has repeatedly stated that
the test for
repudiation is not subjective but objective
(Ponisammy
and Another v Versailles Estates (Pty) Ltd
1973 (1) SA 372
(A) at
387A-C; Stewart Wrightson (Pty) Ltd v Thorpe, supra, at 953E-H; Van
Rooyen v Minister van Openbare Werke en Gemeenskapsbou,
supra, at
845A-846G; Tuckers Land and Development Corporation (Pty) Ltd v
Hovis, supra, at 653B- G; OK Bazaars (1929) Ltd v Grosvenor
Buildings
(Pty) Ltd and Another
[1993] ZASCA 56
;
1993 (3) SA 471
(A) at 4801-481H; Highveld 7
Properties (Pty) Ltd and Others v Bailes
1999 (4) SA 1307
(SCA) at
1315F-G; 1318A-E; 1318H-J).
Thus
it has recently been said in
Metalmil
(Pty) Ltd v AECI Explosives and Chemicals Ltd
[1994] ZASCA 96
;
1994 (3) SA 673
(A) at
684I-685B:
"It is
probably correct to say that respondent was bona fide in its
interpretation of the agreement and that subjectively it
intended to
be bound by the agreement and not to repudiate it This fact does not,
however, preclude the conclusion that its conduct
constituted
repudiation in law.......... The test is whether such a notional
reasonable person would conclude that proper performance
(in
accordance with a true interpretation of the agreement) will not be
forthcoming. The inferred intention accordingly serves
as the
criterion for determining the nature of the threatened actual breach.
/As such a repudiatory breach may be typified as an
intimation by or
on behalf of the repudiating party, by word or conduct and without
lawful excuse, that all or some of the obligations
arising from the
agreement will not be performed according to their true tenor.
Whether the innocent party will be entitled to
resile from the
agreement will ultimately depend on the nature and the degree of the
impending non- or malperformance. The conduct
from which the
inference of impending non- or malperformance is to be drawn must be
clearcut and unequivocal, i e not equally consistent
with any other
feasible hypothesis. Repudiation, it has often been stated, is “a
serious matter”
(cf
Ross T Smyth & Co Ltd v T D Bailey
,
Son
& Co [1940] 3 Ail ER 60 (HL) at 72B; Metaimill (Pty) Ltd v AECI
Explosives and Chemicals Ltd, supra, at 685B-C),
requiring
anxious consideration and - because parties must be assumed to be
predisposed to respect rather than to disregard their
contractual
commitments - not lightly to be presumed.
17.
The
respondent having regards to the two cancelations was in default of
his obligation in terms of the agreement of sale, he clearly
indicated his intention not be bound by the agreements.
18.
Clause
3.4 having regard to the amplification “or for any other
reason” I find can only constituted that the respondent
even if
it is found that he was not in default cancelled the sale for a
reason other than not fulfilling an obligation in terms
of the
agreement.
19.1 find, that the court a qou was
therefore incorrect in its findings on fact and law in dismissing the
appellants claim and the
appellant had on a balance of probabilities
proven that they were entitled to the agent’s commission in
terms of clause 3.4
of the agreement.
I
thus make the following order:
1.
The
appeal is upheld with costs.
2.
The
court a quo’s judgment is set aside and replaced with the
following order:
“judgment
is granted in favour of the plaintiff.
“the
defendant is ordered to pay an amount to R177 840.00 to the plaintiff
together with interest calculated thereon at a
rate of 9% per annum
from 22 May 2013 to date of final payment.
“the
defendant is ordered to pay the cost of the ^dion ij^ythe court a
quo.”
SS
STRAUSS
ACTING
JUDGE OF THE HIGH COURT
I
agree and it is so ordered
H
J DEVOS
JUDGE
OF THE HIGH COURT
COUNSEL
FOR APPELLANT: ADV G F HEYNS ATTORNEY FOR APPELLANT: KRiiGEL HEINSEN
INC COUNSEL FOR RESPONDENT: ADVTP KRUGER ATTORNEY FOR
RESPONDENT: M
BOTHA ATTORNEYS