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[2015] ZAFSHC 210
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Matshabe v Sobi and Others (1147/2015) [2015] ZAFSHC 210 (5 November 2015)
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Certain
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IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Case
number: 1147/2015
In
the matter between:
MOEKETSI
MATSHABE
Applicant
and
PASEKA
FRANCIS SOBI
First
Respondent
FREE
STTE TRANSPORT OPERATING
LICENSING
BOARD
Second
Respondent
FICKSBURG
TAXI ASSOCIATION
Third Respondent
HEARD
ON:
17 SEPTEMBER 2015
JUDGMENT
BY:
RAMPAI, J
DELIVERED
ON
:
5 NOVEMBER 2015
[1]
The matter came to court by ways of motion proceedings. The
appellant applies for an order whereby the first respondent
is
directed to have his taxi road permit or taxi operating license
transferred to the appellant. The 1st respondent opposes
the
application. N
o
specific relief is sought against the 2
nd
respondent and 3
rd
respondent. Both of them do not oppose the application.
[2]
About 14 years ago, on 30 October 2005 to be precise, the applicant
and the 1
st
respondent entered into an agreement at Ficksburg - vide “anx
a”. At the time the 1
st
respondent owned a motor vehicle, a Datsun Skyline, with registration
number [.....]. The 1
st
respondent was a taxi service provider. He used the sedan for
that purpose immediately before the sale agreement. He
sold,
ex
facie
“anx a”, the sedan and license to the appellant for
R10 000. The agreement was drafted by Attorney GJ Botha,
one of the directors of a law enterprise of Ficksburg. The
appellant personally signed the sale agreement. So did the
first respondent.
[3]
Notwithstanding the full payment of the purchase price, the parties
did nothing to have the sedan officially transferred to
the appellant
and registered in his name. Instead the appellant immediately
(from 1 November 2001) started using the sedan
as a taxi although he
was not the holder of a valid operating licence issued to him by the
2
nd
respondent. He used, for his own and exclusive benefit, the
taxi operating licence number 0002469 issued to the 1
st
respondent by the 2
nd
respondent. The operating licence was renewed from time to time
by the 1
st
respondent who, from time to time, handed it to the appellant for
use. From time to time during a period of approximately
13
years, the appellant bought a new car, registered it in, the name of
the 1
st
respondent and replaced the old taxi – (anx b).
[4] On
10 October 2013 the 2
nd
respondent renewed the taxi operating licence. The licence was
still in the name of the 1
st
respondent. The 1
st
respondent then delivered it to the appellant. The taxi
operating licence was valid from 15 October 2013, to 28 January 2014
– (anx c). The authorized route of the taxi was specified
in “anx d”. The carrying capacity of the
sedan taxi
authorized to use the licence in question was 4 passengers plus a
driver. The number thereof was LFSLB13227-2.
[5] Since 1 March 2014
the appellant never received a renewed operating licence from the 1
st
respondent. The parties made fruitless attempts to resolve the
dispute concerning the transfer of the taxi operating licence
from
the 1
st
respondent to the appellant. The purpose of
the current application is to obtain an order whereby the 1
st
respondent is compelled to transfer the taxi operating licence to the
appellant in accordance with the terms and conditions of
the sale
agreement.
This
completes my summary of the undisputed facts together with facts
which, though disputed, could not be seriously denied.
[6] In
his founding affidavit the appellant alleged that he purchased the
1
st
respondent’s taxi together with its taxi operating licence;
that he paid the all-inclusive purchase price to acquire
outright
ownership of the taxi together with its taxi operating licence; that
the 1
st
respondent, duly delivered the taxi to him; that despite demand, the
1
st
respondent refused to deliver the operating licence to him as
agreed; that the 1
st
respondent’s refusal to apply to the 2
nd
respondent to have transferred to him constituted breach of the sale
agreement.
[7] In
his answering affidavit the 1
st
respondent alleged that he sold and delivered the sedan only to the
appellant; that the taxi operating licence was never
part of
the deal; that the purchase price paid exclusively concerned
the sedan only; that such price had nothing to
do with the sale
of the taxi operating licence; that he duly complied with the
sale agreement in that he delivered the sedan
to the appellant;
that the appellant was not entitled to the delivery of the licence to
the appellant; that he did
not breach the terms of the true
sale agreement; that the purported sale agreement, as evidenced
by “anx a”,
was not a correct and true reflection of what
he and the appellant had actually agreed upon and that he did not
realize, at the
time he signed the purported sale agreement, that it
did not accord with his intention since he could not read and write.
[8] In
his replying affidavit the appellant replied that the 1
st
respondent agreed to sell to him the taxi operating licence as well
as the motor vehicle. He indicated that he had a motor
vehicle
which he used for private purposes and that he did not need a second
motor vehicle for that purpose. He said he approached
the 1
st
respondent because he was interested in his car seeing that it was
not just an ordinary car but a car
licensed
to
operate as a taxi. He wanted to venture into business
enterprise as a taxi service provider. He repeated that the
taxi operating licence was one of the two objects of the sale
agreement.
[9] He
denied the 1
st
respondent’s allegations that the true agreement concerned the
car only; that it had nothing to do with its licence; and
that the
written contract did not correctly and truly reflect their common
intention. He specifically denied the 1
st
respondent’s allegation that he was unable to read and that the
appellant had colluded with the attorney to take an unfair
advantage
of his illiteracy. He pointed out that the attorney drafted the
agreement on the instructions jointly given to
him by the 1
st
respondent and the appellant.
[10]
The issue in the matter is whether the 1
st
respondent is bound by the agreement he signed at Ficksburg on 30
October 2001.
[11]
On behalf of the appellant Mr. Benade submits that the 1
st
respondent is bound by the agreement. Because he signed the
agreement, the caveat subscriptor principle operates against him.
Because, for years he conducted himself in a manner that was
consistent with the agreement, the principle of
quasi-mutual
assent
operates against him - clause 22 of the sale agreement.
[12]
On behalf of the 1
st
respondent Mr. Raux submits that the 1
st
respondent is not bound by the agreement because, although he signed
the agreement he cannot read. On account of his inability
to
read, he was unaware that the taxi operating licence also formed part
and parcel of the goods sold and that he was required
to transfer it
as well to the appellant. The submission is that seeing that he
never intended and never agreed to the sale
of the taxi operating
licence he cannot be held to be bound by the pursued agreement.
It was also argued on behalf of the
1
st
respondent that the appellant’s offer to pay an additional
R30 000 to 1
st
respondent fortified the 1
st
respondent’s contention that the taxi operating licence was
never intended to be an object of the sale agreement (vide “anx
f”).
[13]
Excluding attachments, “anx a” is a five page document
divided into nine clauses. At the heart of the dispute
is
clause 2. It reads:
“
KOOPSAAK
Die
Verkoper verkoop aan die Koper die volgende:
2.1
DATSUN
SKYLINE MOTORVOERTUIG
REGISTRASIENR:
CGC 433 FS
ENGIN
NO: L20S172195C
2.2
OPERATEURSLISENSIE NOMMER: 0002469 TEN
AANSIEN
VAN DATSUN MOTORVOERTUIG MET
REGISTRATSIE
NR: CGC 433 FS
”
[14]
It was the appellants case, on the one hand, that the taxi operating
licence was also an object of the sale agreement just
as the taxi to
which it related. It was the 1
st
respondent’s defence, on the other hand, that the purported
sale agreement misrepresented the true sale agreement according
to
which he sold and delivered his car only to the appellant. Although
he signed the purported sale agreement on which the appellant
relied,
he contended that he was unable to ascertain that the written
contract correctly mirrored the true and common intention
of the
contracting parties as regards the object of the sale transaction
because, as he says, he cannot read.
[15]
The written agreement, which is now in the centre of the dispute, is
a five page document. It is a type written document.
It
is common cause that the 1
st
respondent signed it. His signature appears on every page.
Apart from “anx a” the signature of the 1
st
respondent also appears on the last page of the answering affidavit.
It is difficult
ex
facie
these two documents, to readily believe the contention that he cannot
read.
[16]
The sale agreement was drafted by a certain Mr. GJ Botha, the 1
st
respondent’s erstwhile attorney. Now, if that is accepted
as the true state of affairs, then there seemed to be no
real motive
why an attorney would, on purpose, disregard the instructions of his
client and draft an agreement so highly detrimental
to the interests
of his own client. The 1
st
respondent made no attempt to suggest, let alone to say, what
sinister motive could have actuated his attorney to prejudice him
in
that manner. It appeared unlikely that an attorney would, for
no apparent reason act so unethically towards his client.
[17]
There was no dispute as regards the authenticity of the seller’s
signature on the sale agreement. The appellant
averred that it
was the 1
st
respondent’s signature. Mr. Botha corroborated him.
The 1
st
respondent acknowledged the signature as his. On the strength
of the undisputed signature, the appellant alleged:
“
10.3.1
It is further denied that the First Respondent is unable to read.
That can
already be seen from his signature on Annexure “A”.
As can be seen therefrom it is the typical signature of a
person that
can read and write as he clearly wrote the letters “PF Sobi”
on all the pages. If he couldn’t
read or write he
wouldn’t have been able to so clearly write a signature several
times the same way. If you can write,
you can also read.”
[18]
It may well be difficult to believe that a person who, like the 1
st
respondent, can sign like a university professor cannot read.
The appellant asserted;
“
If
you can write you can also read”
The
assertion was flawed. There was no proof that the respondent
could or can write. The mere fact that he could neatly
write
his name or sign a document did not, in itself, compel the conclusion
or justify the drawing of the inference that he could
read. I
have met many people out there who can write their names and sign
documents yet they cannot read. I am not
persuaded, therefore,
that the inference which the appellant sought to draw from the proven
ability of the 1
st
respondent to sign a document or to write his name excludes the
drawing of any other inference to the contrary.
[19]
In his confirmatory affidavit Mr. Botha aligned himself with the
appellant’s contention that the 1
st
respondent was literate. He put it as follows:
“
3.5
I further confirm that First Respondent can read and write. I
know him now by this time for more than ten
years. He can read
and write.”
The
attorney’s assertion was unhelpful. It was a bold
statement. It was not at all particularised. His previous
knowledge of 1
st
respondent for that considerable period did not, without more,
validate his unsubstantiated assertion that:
“
He
can read and write”
The
attorney hardly explained or mentioned one example of what he once
saw the 1
st
respondent reading or writing. To a certain extent, the critique I
levelled against the appellant applies
mutatis
mutandis
to his attorney as well.
[20]
In
Burger v Central South African Railways
1903 TS 571
at 578
Innes
CJ said the following about a person’s signature on a
contractual document:
“
It
is a sound principle of law that a man, when he signs a contract, is
taken to be bound by the ordinary meaning and effect of
the words
which appear over his signature”
[21]
Now the question is what appears over the 1
st
respondent’s signature? The answer is to be found in
clause 2.2 “anx a”. There, the taxi operating
licence of the taxi described in clause 2.1 was expressly included.
According to clause 2 the goods sold consisted of two
articles as
fully described an itemised in the two sub-clauses. The legal
effect of his signature is that clause 2 stands
and binds him.
[22]
The authors, Chistie and Bradfield: The Law of Contract in
South Africa 6
th
edition p181 comment as follows about the general principle, known in
our law as the caveat subscriptor principle:
“
It
is a matter of common knowledge that a person who signs contractual
document thereby signifies his assent to the contents of
the
document, and if these subsequently turn out not to be to his liking
he has no one to blame but himself.”
[23]
In
Blue
Chip Consultants (Pty) Ltd v Shamrock
2002 (3) SA 231
(WLD) of 239 E-F Spilg AJ had this to say about a
person who signs a contractual document without reading it, for
whatever reason:
“
Secondly,
I do not understand our case law to hold that a person will escape
the consequences of his signature if it can be shown
that he had not
read the document in question. That would be a startling proposition.
One is expected to read what one signs.”
I
am in respectful agreement with all the authorities I have quoted
above.
[24]
One is expected to read before one signs. I know of no other
safer and wiser way of familiarising oneself
with contractual
obligations whose binding legal force and effect can only be
activated and unleashed through an act of signing
a contractual
document. One who signs a contractual document without or
before reading it does so at his own peril.
One who is able to
read is expected to read before signing. One who is unable to
read is not expected to sign unaided before
the content of a
contractual document is reliably explained.
[25]
I have earlier found that the sale agreement was drafted by the 1
st
respondent’s erstwhile attorney who confirmed the appellant’s
averment that he correctly drafted the sale agreement
in accordance
with the instructions he obtained from the 1strespondent.
There was no inherent conflict between the
1
st
respondent
and the attorney. Instead the appellant and not the 1
st
respondent was an unrepresented party at the time the attorney was
instructed.
In
those circumstance any suggestion that the interests of the 1
st
respondent were unduly subordinated to those of the appellant to the
1
st
respondent’s prejudice and detriment was unpersuasive.
The relationship between the appellant and the attorney was
obviously
stronger than that between the appellant and the attorney.
[26]
According to the attorney, he did not only draw up the contract, but
he also explained its contents to the parties
before they signed it.
If that is truly the case, then the 1
st
respondent’s inability to read was of no moment. He must
have known what the contract in general and clause 2 in particular
was all about. It would therefore, appear that the 1
st
respondent tried to distance himself from the events that were
prevailing immediately before the contract was signed. I
am inclined to believe that the 1 respondent’s endeavour to
remove himself from these events cannot be reconciled with what
actually happened. His failure to disclose that Mr. Botha was
his attorney tarnished the veracity of his version.
[27]
I shall assume, without deciding the point, in favour of the 1
st
respondent that he was unable to read at the time material to the
signing of the sale agreement. It was his stance that because
he could not read his inability was exploited to his prejudice and
detriment. In
Bhikhagee
v Southern Aviation (Pty) Ltd
1949 (4) SA 105E
a business man who could not read and write English
was held bound by the conditions on the flight ticket he had signed.
The court held at 110 per Gardener JP that by his signature he
elected to take the risk and that he was bound.
[28]
The caveat subscriptor principle dictates that a person who signs a
written agreement without reading it first
does so at his own risk.
Consequently he is bound by the terms and conditions of such an
agreement as if he has actually
read it and thus knew what it
contained.
Afrox
Healthcare v Strydom
2002 (6) SA 21
(SCA) at 41G. At par 34 Brand JA said:
“
[34]
In hierdie omstandighede sou die feit dat die respondent die dokument
geteken het sonder om dit te lees as 'n reël nie
tot gevolg hê
dat hy nie aan die bepalings wat daarin vervat is gebonde is nie.
Reeds bykans 'n eeu gelede het Innes HR immers,
in
Burger
v Central South African Railways
1903 TS 571
op 578, beslis dat 'n persoon wat 'n skriftelike
ooreenkoms teken sonder om dit te lees, dit op eie risiko doen en
gevolglik gebonde
is aan die bepalings wat daarin vervat is
asof hy daarvan bewus was en uitdruklik daartoe ingestem het. (Sien
byvoorbeeld
ook
George
v Fairmead (Pty) Ltd
1958
(2) SA 465
(A).”
[29]
If a person so conducts himself in a way that would make a reasonable
person believe that he was assenting to the
terms proposed by
another, he would be equally bound as if he had intended to agree to
such terms.
Christie
& Bradfield,
supra
,
p11 and p26.
[30]
In
Pillay
v Shaik
2009 (4) SA 74
(SCA) Farlam JA said the following about the doctrine
of quasi-mutual assent:
At
84 E-H (53)
“
This
raises the question as to whether the doctrine of quasi-mutual assent
can be applied in circumstances where acceptance does
not take place
in accordance with a prescribed mode but the conduct of the offeree
is such as to induce a reasonable belief on
the part of the offeror
that the offer has been duly accepted according to the prescribed
mode. Viewed in the light of basic
principle, the question must
surely be answered in the affirmative because the considerations
underlying the application of the
reliance theory apply as strongly
in a case such as the present as they do in cases where no mode of
acceptance is prescribed and
the misrepresentation by the offeree
relates solely to the fact that there is consensus.”
At
86 B-C (59)
“
Although
the acceptance by the developers of the Pillay and Motlanthe offers
did not comply with the prescribed mode of acceptance
they conducted
themselves in such a manner as to induce the reasonable belief on the
part of Mr Pillay and Dr Motlanthe that the
developers were accepting
the offers according to the prescribed mode. It follows in my
view that Balton J correctly held,
on the basis of the doctrine of
quasi-mutual assent, that the developers were bound by the agreements
in respect of units 402 and
502.”
[31]
Over the years the 1
st
respondent regularly renewed the taxi operating licence. Over
the years the 1
st
respondent willingly and on his own free accord handed the renewed
taxi operating licence to the appellant. This then is
the 1
st
respondent’s version. It tallies with the version of the
appellant. The version of the 1
st
respondent is more significant for what he does not say than he
says. He says the appellant used his taxi operating licence
for
a considerable period, approximately 13 years, to generate income.
However, he does not say what financial benefit he
derived from the
appellant for his profitable use of his of his taxi operating
licence. As the lawful holder of the taxi
operating licence
which, as he says, he did not alienate together with his vehicle, one
would have expected of him to say what
advantage there was in the
deal for him. He did not say.
[32]
I cannot accept that the 1
st
respondent has been that
generous to the appellant for no apparent reason. It must be
borne in mind that the 1
st
respondent was in serious
financial distress which was why he had to sell his taxi in the first
place. It is difficult to
understand why a man in such a
desperate financial predicament would charitably hand over his
valuable taxi operating licence to
another to use free of charge, not
for a year or two – but for 13 long years.
[33]
The 1
st
respondent did not say how much there was in the deal for him because
there was nothing more in it for him. There was nothing
for him
during all those many years because he had alienated the taxi
operating licence together with his taxi. For that transaction
he was
duly rewarded. For years the 1
st
respondent did not behave like someone who still had any interest,
let alone full ownership right in respect of the taxi operating
licence. On the contrary, his conduct tacitly strengthened the
appellant’s case that the 1
st
respondent alienated both the taxi and its operating licence.
His conduct implicitly weakened his case that the operating
licence
formed no part of the sale agreement. Consequently the doctrine
of quasi-mutual consent operates against him.
[34]
The 1
st
respondent conducted himself in such a manner as to induce the
reasonable belief on the part of the appellant that he accepted
the
terms of the transaction according to the sale agreement especially
those relative to the goods sold as specified in clause
2 “anx
a”.
[35]
It follows, therefore, that the 1
st
respondent was, on the basis of the doctrine of quasi-mutual consent,
bond by the agreement in respect of the taxi operating licence
as
well.
[36]
Accordingly I make the following order
36.1
The 1
st
respondent is directed to give written consent in terms of sec 51(4)
Free State Transport, Act 2005 to the appellant in order to
facilitate the transfer of the taxi operating licence number LFS LB13
227 which is valid for the period 2013 to 2019;
36.2
The 1
st
respondent is directed to complete and sign the prescribed transfer
form, any other official or necessary documents which may be
required
for such transfer and to generally take such lawful or necessary
steps as may be required by the 2
nd
respondent, 3
rd
respondent or the appellant or his authorized agent for the purpose
executing such transfer;
36.3
Should the 1
st
respondent, neglect or refuse to comply with paragraph 1 and 2 hereof
within 14 days after a written request by the appellant,
2
nd
respondent or 3
rd
respondent to do so has been served on him, then in that event, the
sheriff for the district of Ficksburg is hereby directed and
authorized to perform all the acts and to take all the necessary
steps as set out in paragraph 1 and 2 on behalf of the 1strespondent
in order to give effect to this order;
36.4
The 1
st
respondent is directed to pay the costs of this
application.
______________
M.H.
RAMPAI, J
On behalf of appellant:
Attorney H.J Benade
Instructed
by:
Symington
& De Kok
Bloemfontein
On behalf of respondent:
Adv. L.A. Roux
Instructed
by:
Fixane
Attorneys
Bloemfontein
&
Thulo
Attorneys
Ficksburg
/PC