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
>>
2014
>>
[2014] ZAGPPHC 241
|
|
Absa Bank Limited v Jansen Van Rensburg and Others (41263/11) [2014] ZAGPPHC 241; 2015 (5) SA 521 (GJ) (11 April 2014)
IN
THE NORTH GAUTENG HIGH COURT PRETORIA
(REPUBLIC
OF SOUTH AFRICA)
CASE
NO. 41263/11
DATE:
11 APRIL 2014
REPORTABLE
NOT
OF INTEREST TO OTHER JUDGES
In
the matter between:
ABSA
BANK
LIMITED
........................................................................................................
Applicant
and
JAN
HARM JANSEN VAN
RENSBURG
..................................................................
1
st
Respondent
ALETTA
CATHARINA JANSEN VAN
RENSBURG
............................................
2
nd
Respondent
THE
SHERIFF OF THE HIGH COURT,
WONDERBOOM
.................................
3
rd
Respondent
CORAM
EBERSOHN AJ
MATTER
HEARD ON 18 SEPTEMBER 2013
JUDGMENT
HANDED DOWN ON 11 APRIL 2014
JUDGMENT
EBERSOHN
AJ.
[1]
The applicant is a bank. It obtained judgment on the 4
th
October 2011 against the first and second respondents and the court
authorised the sale in execution of their fixed property. The
respondents are not opposing the application.
[2]
The property was attached and the sale in execution was scheduled for
the 7
th
September 2012.
[3]
The applicant’s attorney arranged for a bidder on the
applicant’s behalf to “safeguard” the applicant’s
interests at the sale in execution.
[4]
In this instance the attorney received instructions from the
applicant to bid up to R35 615,00 at the sale. The attorney
instructed
a clerk to attend the sale and do the necessary bidding,
if necessary.
[5]
At the sale there was, besides the clerk, one other bidder. The
bidding opened at R10 000,00 and according to her report she
“incorrectly” heard a bid for R25 000,00 whilst the
correct figure was indeed of R125 000,00. For some inexplicable
reason, she panicked and then bid and bought the property for R125
000,00 on behalf of the applicant.
[6]
The applicant is now saddled with the property and has to pay R125
000,00 for the property. The applicant applies that the sale
be set
aside as the clerk acted outside the terms of her mandate and is
prepared to pay all wasted costs and any other costs for
the future
sale that may be attributable to this sale.
[7]
As the two debtors, the first and second respondents, did not oppose
the application and as the court had reservations about
the matter
the Chairperson of the Pretoria Bar Council was requested to appoint
counsel to act as
amicus
curiae.
Two
counsel were in fact appointed by him and the court is indebted to
them for their input.
[8]
It is the applicant’s case that no party will suffer any
prejudice should rescission be granted. Of that this court is
not so
sure. What the applicant did not disclose was that the property,
according to documents in the court file, was already sold
on the
17
th
February 2012 for an amount of R190 000,00 to one
Mojapelo. As she did not make the requisite payments the Sheriff, in
terms of
the provisions of Uniform Rule 46, applied to a judge in
chambers for the cancellation of the sale, which application was
granted
by the judge on the 12
th
June 2012.
[9]
Paragraph 8 of the prescribed conditions of sale (Form 21 of the
First Schedule to the Uniform Rules) which Me Mojapelo signed
read as
follows
“
8.
If the purchaser fails to carry out any of his obligations under
these Conditions of Sale, the sale may be cancelled by a Judge
summarily on the report of the Sheriff after due notice to the
purchaser, and the property may again be put up for sale; and the
purchaser shall be responsible for any loss sustained by reason of
his default, which loss may, on the application of any aggrieved
creditor whose name appears on the Sheriff’s distribution
account, be recovered from him under judgment of the Judge pronounced
summarily on a written report by the Sheriff, after such purchaser
shall have received notice in writing that such report will
be laid
before the Judge for such purpose; and if he is already in possession
of the property, the Sheriff may, on 7 days’
notice, apply to a
Judge for an order ejecting him or any person claiming to hold under
him there from. ”
[9]
Added to that was a subparagraph which read as follows:
“
8.2
In the event of the sale being cancelled as aforesaid the deposit
shall be retained by the Sheriff in trust for such period
that is
stipulated in the judgment in terms of Rule 46(11) or if no such
period is stipulated therein then until such time that
the property
has been sold to a third party and the plaintiff’s damages have
been quantified and judgment has been granted
in respect thereof ”
[10]
The applicant did not deal at all with the financial aspects of the
sale to Me Mojapelo in so far as may have played a role.
[11]
The court now deals with the question whether the applicant is
entitled to rely on the lack of authority on the part of its
agent;
and if not, is the agent entitled to put up her mistake as a ground
for vitiating the agreement; and if not, is the court
entitled to
cancel the agreement on the grounds advanced by the applicant?
[12]
In the present case, the applicant does not complain that it did not
appoint attorneys Snyman de Jager Inc. to bid at the auction
on their
behalf. The applicant stated that its agent only had authority to bid
up to a specified amount. The applicant's counsel,
Mr. Krige, argued
that the clerk acted beyond the scope of the mandate and that she
could not bind the applicant.
[13]
However, in
Northern
Metropolitan Local Council v Company Unique Finance (Pty) Ltd.,
2012
(5) SA 323
(SCA) the court stated as follows (par [24] at 332H-333A)
(per Mpathi P):
“
[24]
Actual authority may be express or implied. In
Hely-Hutchinson
v Brayhead Ltd.
(1968]
1 QB 549
(CA)) ; ([1967] 3 All Eng ER 98]) at 553 A-G) (referred to
with approval in
NBS
Bank Ltd.
v
Cape Produce Co.
Ltd
(2002
(1) SA 396
(SCA)), Lord Denning expressed himself thus:
'[Actual authority]
is express when it is given by express words, such as when a board of
directors pass a resolution which authorises
two of their number to
sign cheques. It is implied when it is inferred from the conduct of
the parties and the circumstances of
the case, such as when the board
of directors appoint one of their number to be managing director.
They thereby impliedly authorise
him to do all such things as fall
within the usual scope of that office. Actual authority, express or
implied, is binding as between
the company and the agent, and also as
between the company and others, whether they are within the company
or outside it.'
[14]
In
Monzali
y
Smith
1929
AD 382
at 385 Stratford JA stated as follows:
“
Where
any person, by words or conduct, represents or permits it to be
represented that another person has authority to act on his
behalfhe
is bound by the acts of such other person with respect to any one
dealing with him as an agent on the faith of any such
representation,
to the same extent as if such other person had the authority which he
was so represented to have.
”
[15]
By appointing its attorneys to bid on its behalf at the auction, the
applicant represented to third parties and to the third
respondent in
particular that its agent had unlimited authority to bid at the
auction. The following remarks in
Southern
Life Association Ltd v Beyfeveid NO
1989
(1) SA 496
(A) at 503B are also relevant in this regard:
“
Van
Zyl was designated a "financial adviser
"
by the first
defendant [the insurance company] and allowed to hold himself out as
such. Whatever the private limitation on Van Zyi’s
actual
authority may or may not have been, a principal in the position of
first defendant can hardly in my view, be heard to complain
if one of
its employees who, although the purpose of his employment is to
effect policies of insurance, is styled and held out
to the public as
a financial adviser, gives financial advice. What otherwise is the
purpose of holding out an employee as a financial
adviser?”
[16]
The third respondent acted upon the representation that the clerk had
the requisite authority to bind the applicant and it
is clear that
she had ostensible authority.
[17]
The applicant also cannot rely upon the mistake the clerk made. In
National
& Overseas Distributors Corpn (Pty) Ltd v Potato Board
1958
(2) 473 (A) at 479 Schreiner JA summed up the position as follows
regarding the question whether a contracting party may put
up his or
her
unilateral
mistake
in order to escape liability under a contract:
“
our
law allows a party to set up his own mistake in certain circumstances
in order to escape liability under a contract into which
he has
entered
........
At
least the mistake (error) would have to be reasonable (justus) and it
would have to be pleaded.”
[18]
Christie
The Law
of Contract in South Africa
(6
th
ed) at 329 points out that, no matter how material the mistake, the
mistaken party will not be able to escape from the contract
if his
mistake was due to his own fault. This principle will apply whether
his fault lies in not carrying out the reasonably necessary
investigations before committing himself to the contract.
[19]
It is clear that the court cannot set aside the sale on the basis the
application was brought and the applicant must pay the
costs of the
application and of the
amici
curiae
[20]
The following order is made:
1.
The application is dismissed and the applicant must pay its own costs
and also that of the
amici
curiae.
EBERSOHN
AJ
ACTING
JUDGE OF THE HIGH COURT
The
applicant’s counsel: Adv. H.A.A. Krige
The
applicant’s attorney: Snyman de Jager Inc.
Ref. Mr.
Hamman/Botes/F4059
Tel 012 326 1250
Amici
curiae: Adv. B.C. Stoop, with him
Adv. L. Vilakazi.