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[2014] ZAGPPHC 336
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Samtoy CC v Haffenden Groves (Pty) Ltd (49507/12) [2014] ZAGPPHC 336 (14 April 2014)
IN
THE NORTH GAUTENG HIGH COURT, PRETORIA
(
REPUBLIC OF
SOUTH AFRICA
)
CASE NO: 49507/12
DATE: 14/4/2014
In
the matter between:
SAMTOY
CC
...............................................................................................................................
Plaintiff
and
HAFFENDEN
GROVES (PTY)
LTD
....................................................................................
Defendant
JUDGMENT
MAKHUBELE
AJ
INTRODUCTION
[1]
This is an action for payment of estate agent commission in an amount
of R660 000,00 with interest. The main issue for decision
is whether
plaintiff was the effective cause of sale of a certain portion of
land between defendant and an entity known as Inkuba
Estates (Pty)
Ltd under circumstances where ; (a) the property was already known to
the purchaser when plaintiff introduced it
to the purchaser ; and (b)
the sale was concluded directly between the purchaser and the
defendant after the introduction without
the involvement of
plaintiff.
[2]
The relevant allegations in the particulars of claim
[1]
read as follows:
“
4.
On
or about 3 June 2011 and at Nelspruit, the Defendant represented by
MR BREBNER orally gave the Plaintiff, represented by MR VAN
EYSSEN, a
mandate to find a purchaser for the Defendant’s property being
Portions 8 and 9 of the Farm Rietfontein 274 J.T.,
also known as
Portion 51, Remaining Extent of the Farm Rietfontein 274, at a
selling price to be negotiated between the Defendant
and a purchaser
and to be accepted by the Defendant.
5.
The
Plaintiff accepted the mandate.
7.
On or about 3
July 2011 the Defendant, represented as aforesaid, instructed the
Plaintiff, represented as aforesaid, to concentrate
on the selling of
the West Farm and the Plaintiff accepted the said instruction and
concentrated on the selling of the West Farm.
8.
On or about 25
Agust 2011 the Defendant, represented as aforesaid, instructed the
Plaintiff, represented as aforesaid, that the
Defendant required the
West Farm to be marketed at a selling price of R7 650 000 and the
Plaintiff accepted this instruction.
9.
On
or about 20 October 2011 the Plaintiff introduced MR P VAN ROOYEN to
the fact that the Defendant’s aforementioned West
Farm was in
the market at a sale price of R7 600 000.
10.
On
or about 27 October 2011 and at the residence of the said MR BREBNER,
the defendant, represented as aforesaid, requested the
Plaintiff,
represented as aforesaid, to pursue the said P VAN ROOYEN as a
purchaser notwithstanding that the said MR VAN ROOYEN
and Mr Kennett
had, as a proposed joint venture, been interested in purchasing the
Defendant’s farm approximately a year
earlier as a consequence
of which the said Mr Kennett had viewed the Defendant’s farm
but that the aforementioned persons
had indicated that they were not
interested in buying same.
11.
The
Plaintiff accepted the aforementioned instruction.
12.
On
or about the 17
th
of April 2012 the Defendant sold the
aforementioned property to INKUBA ESTATES (PTY) LTD (Registration
Number 2012/035919/07) of
which said MR P VAN ROOYEN’s son,
Roelof Andries van Rooyen, is the only director and of which the
shareholder are entities
controlled by the said Mr. P van Rooyen, for
an amount of R8, 800, 000.00.
14.
Plaintiff
was the effective cause of the sale and, in the premises, Plaintiff
duly performed the Plaintiff’s obligations in
terms of the
mandate given to the Plaintiff.
15.
It
was an express term of the mandate that, should the Plaintiff duly
perform thereon, the Plaintiff would be paid a commission
equal to
7,5% of the purchase price.
16.
Alternatively
it was a tacit, alternatively implied term of the mandate that, in
such event, the Plaintiff would be paid the commission
equal to the
generally accepted tariff for estate agents seling the type of
property concerned in the Nelspruit area. The generally
accepted
tariff payable to estate agents in the Nelspruit area for
transactions of this nature is 7,5% of purchase price”
[3.]
I proceed to summarize the defendant’s plea
[2]
only with regard to disputed issues that have a bearing on the
ultimate question to be decided; namely (a) whether
plaintiff’s oral mandate was replace by subsequent written
mandates in terms of which plaintiff was authorized to sell
the
West Portion of the farm ; and (b) whether plaintiff was
the effective cause of the sale of the land in question:
[3.1]
The defendant applied for and was granted permission to subdivide its
farm into two portions, namely the portion lying to
the West and the
portion lying to the East . They are known as portions 8 and 9
respectively.
[3.2]
Mr Van Eyssen was instructed to concentrate on finding a willing
buyer to the West portion.
[3.3]
Mr Van Eyssen represented to Mr Brebner that he had a willing buyer
for the West portion for R7 650 000,00 (Seven million
six hundred and
fifty thousand rand). He demanded an exclusive mandate for a
sufficient period to finalize the sale.
[3.4]
Mr Brebner gave Mr Van Eyssen an exclusive mandate for a period
sufficient
[3]
to finalize
the sale of the West portion at a price of R7 650 000,00 (Seven
million six hundred and fifty thousand rand).
A contract of mandate
[4]
was
concluded
(my
emphasis) on 09 September 2011.
[3.5]
Mr Van Eyssen failed to deliver on the exclusive mandate, and
after its expiry, the parties concluded a further
agreement of
mandate to market the same west portion of the farm for the same
amount . It was an express, alternatively implied,
further
alternatively tacit term that the exclusive mandate would be replaced
with this new non exclusive mandate
[5]
dated 27 October 2011. It would have expired on 30 April 2012.
[3.6]
Mr Roelof Van Rooyen was employed by Cosmos Macadamias during October
2010. He and Mr Brebner met there, and the former was
introduced to
the fact that defendant’s farm was for sale.
[3.7]
Mr Phillip Van Rooyen and one Mr Tony Kennettt made a proposal to buy
defendant’s farm through a joint venture. This
did not
materialize.
[3.8]
The trigger event for the sale of the farm was when Mr Roelof van
Rooyen completed his studies at the University of Stellenboosch.
[3.9]
Brebner also forwarded the details of the sale of the farm to
Phillip Van Rooyen by email during June 2011. Mr
Van Rooyen,
after having been approached directly by Brebner, “
warranted
that he was not introduced to the property through any estate agent
and more particularly not by AJ Estate Agents”
[6]
[3.10]
“
Neither Van Eyssen nor EJ Estate Agents were the effective
cause of the sale of the farm Rietfontein”.
ISSUES
THAT ARE COMMON CAUSE
[4]
The following issues were admitted before evidence was led.
[4.1]
That Plaintiff is a Close Corporation.
[4.2]
That there would be no bar for plaintiff to claim commission merely
on the basis of non-compliance with section 26 of the
Estate Agency
Affairs Act, Act 112 of 1976, as amended that requires that valid
fidelity fund certificate should be issued to the
plaintiff and
every member or emloyee.
[4.3]
That an oral mandate was granted to plaintiff.
[7]
PLAINTIFF’S
EVIDENCE
[6]
The first witness for the plaintiff was Mr. Felix Van Eyssen
(“Felix”). His evidence is in the main based on email
and
other written communication
[8]
between him and Mr Brebner (“Brebner”) as well as
documents he addressed to other parties he marketed defendant’s
property to, thus rendering his efforts the effective cause of the
sale.
In-between
summarizing his evidence, I will also summarize the
correspondence , in chronological sequence:
The
oral mandate
[6.1]
Felix made contact with
Brebner for
the first time during 2010 when he was canvassing
farms to sell on behalf of Embest Agricultural
Corporation. Nothing
came of it as Brebner told him he recently leased a farm and it was
not for sale.
[6.2]
He contacted him again on 19 May 2011 because he had a client. They
agreed to meet at Brebner’s residence on 24 May
2011.
During
the meeting, Brebner knew he was an estate agent because he
introduced himself as such and it also appears from the document
he
provided him with (comparative sales).
Brebner
took him around and asked what his client wanted to do with the farm.
He informed him that he wanted to plant macademia
nuts. Brebner
advised him that he should not limit himself to one client. Felix
told Brebner that he had a database with about
200 (two hundred )
commercial farms. Brebner asked him to include his farm in this
database. Brebner told him that his first priority
was to sell both
portions but if only one attracts attention, he would consider
entering into a joint venture with the purchaser.
He showed him the
“pakhuis”/ pack house (storage for farm produce).
He told him that the real value of the farm
was in this pakhuis.
Felix did not agree with this and told him by email later in the day.
There was no doubt that Brebner wanted
him to sell the farm. They
discussed the mandate briefly and he told him that commission would
be payable.The mandate included
the whole farm as a going concern.
[6.3]
During this meeting, Brebner gave him a listing of his property
[9]
. It shows that the property is subdivided into two, West
and East Portions. The price Brebner anticipated for each
portions
was R9,25 m and R3.5m respectively.
[6.4]
After their meeting, Felix sent Brebner a letter and attached what he
referred to as “
Comparative
Farm Sales of farms that has sold since 2006
”.
He prepared this document after their telephone contact on 19 May
2011. His experience as an estate agent is that sellers
start off
with higher prices. The purpose of providing them with comparative
sales is to assist them to come to a realistic price.
He specifically
directed Brebner to look at Portion 3 of the farm Maritzdrift
[10]
and Portion 5 of the farm Hermansburg
[11]
.
He believed that these farms were comparable to defendant’s
farm.
[6.5]
Felix sent an email
[12]
to
Brebner on 25 May 2011 and advised him, amongst other things that he
has compiled a document with the information provided and
that this
document would be provided to potential buyers. He also raised his
concern about the challenges that may arise due to
a land claim
against the property.
He
also informed him that he had a potential buyer who is in the market
to buy a farm with water rights to plant macademia nuts
and that he
wanted to take him to view the farm. He also informed him that in
their next meeting they would discuss things like
“
actual
subdivisions, subdiviion of the pack house, irrigation and pumps……
marketing mandate and sales commission.
It is important that a solid
foundation is laid regarding the mandate”.
[6.6]
On 25 May 2011, Felix and his colleague, Barry Libenberg made an
offer of defendant’s farm to a Mr. George Muller
[13]
.
In the offer, they mentioned that the seller would like to sell the
entire farm, alternatively one portion or enter into a joint
venture.
[6.7]
On 03 June 2011, Brebner signed a mandate
[14]
to enable felix to obtain a legal opinion on the pending land claim.
It is common cause that Felix did make enquiries at the Department
of
Rural Development and Land Reform , Mpumalanga.
[15]
He
testified that he would not have gone into this trouble if he did not
have a mandate to sell the farm.
[6.8]
On 03 July 2011, Brebner sent an email to Felix and advised him
, after explaining certain values based on what he referred
to as
“Binno Steyns evaluation 2009”, that:
“
I
want you to push the sale of the west portion. At this price and
position, packhouse adjustment, you should be well placed to
find
buyers.
Later
(my emphasis)
we can
then offer the east portion as more of a lifestyle estate……”
[6.9]
Further emails were exchanged on 04 July 2011 in terms of which
Brebner attached the evaluation report and the Binno Styles
values he
referred to in the email above. The valuation was done by Tetragon
Valuers (pty) ltd
[16]
in 2009.
The land and improvements were valued at R8 000 000,00 (Eight Million
Rand)
Circumstances
under which the exclusive mandate was granted and terminated
[6.10]
Felix testified that early in September 2011, he received a call from
one Jappie Terblanche about another farm that was next
to
defendant’s. He told Terblanche that he had two farms next to
each other, referring to defendant’s property. On
08 September
2011 he sought permission from Brebner to take Terblanche to view
defendant’s farm. Brebner enquired about the
price he had given
Terblance, and Felix told him that it was R7 650 000,00 for
Portion 8 (West farm)
Terblanche
inspected the farms and decided that the defendant’s was a
better option. He requested an exclusive mandate for
two weeks to
enable him to look at the water rights.
[6.11]
Felix contacted
[17]
Brebner
about an exclusive mandate as requested by Terblanche. Brebner agreed
and signed the exclusive mandate in respect of Portion
8 (West farm)
on 09 September 2011.
[18]
The
mandate expired on 23 September 2011. Terblanche did not buy the
farm.
Introduction
of Phillip Van Rooyen to defendant’s property
[6.12]
Felix testified further that on 17 October 2011, whilst out
looking for farms to market, he stopped at a smallholding
outside
White River. He had a conversation with Mike Kleynhans (“Mike”)
who introduced himself as the manager
of that farm
and that he was employed by Phillip Van Rooyen (“Phillip”)
of Cosmos Macademia. Mike informed
Van Eyssen that the farm they were
in at that time was not for sale, but he would know in a day or two
if there were any farms
available for sale.
[6.13]
Felix told Mike about Brebner’s farm. Mike informed him that he
should bring more details because his employer was
looking for a farm
to plant his young macademia trees.
[6.14]
He called Mike two days later for information about farms that are on
sale. Mike gave him two telephone numbers of Odendaals
family. He
called them but the farms were not available for sale. On the same
conversation, Mike told him that Phillip needed the
details he had
promised to bring.
[6.15]
He delivered the details
[19]
of defendant’s farm to Mike to hand over to Phillip on 20
October 2011. Kleinhans acknowledged receipt of the full listing
by
appending his signature.
[20]
[6.16]
Felix went on to testify that on 24 October 2011, he wrote a letter
to Brebner and gave him feedback about Phillip’s
interest in
the farm and that he has delivered the listing as stated above.
[21]
In
the same letter, he advised Brebner that (a) He was contacted by
another farmer from Delmas, Peter Kleu who expressed his interest
in
the East portion ; and (b) that as their mandate had expired, he
needed Brebner to sign another
non-exclusive
mandate.
[6.17]
He met with Brebner at his residence on 27 October 2011. He took
along the non-exclusive mandate document he had prepared
for Brebner
to sign.
During
their discussions, Brebner mentioned that he had had previous
delaings with Phillip about the farm, but that they could not
agree
on the asking price.
[6.18]
He testified further that Brebner neverthelss signed the
non-exclusive mandate
[22]
. No
restrictions were mentioned . Brebner confirmed that Phillip and Tony
Kennett had been to view the farm. He asked if he should
pursue
Phillip and Brebner answered in the affirmative. The reason he asked
the question is that if he did not get a specific mandate
not to
pursue him, he is entitled to claim commission.
[6.19]
He contacted Mike on 31 October 2011 and was advised that the
documents were indeed given to Phillip, but he had indicated
that he
was not interested in the farm.
[6.20]
On 31 October 2011, he sent an email
[23]
to Brebner and attached a draft joint venture proposal. He also
attached information that he intended to send to Peter
Kleu.
Felix testified that after 31 October 2011, Felix was no longer
interested in the joint venture.
[6.21]
He tried to contact Brebner on 29 November 2011, but he did not pick
up his phone. His wife picked up the phone after several
unpicked
calls. She told him that Brebner was in a meeting with Phillip
[24]
.
[6.22]
Felix testified further that he requested Brebner to meet with him
and Peter Kleu. The meeting took place on 01 December
2011. He
prepared a minute
[25]
of the
issues discussed.
[6.23]
Felix went on to testify that at this point he gained the impression
that that they (his agency) were being misled by Kleinhans
and
Brebner.
His
impression stems from two incidents that he mentions in his letter to
Brebner dated 10 Dcember 2011. The first is about a potential
client,
Mark Fraze who contacted him on 20 October 2011 with interest on the
defendant’s farm. He was eager to meet, but
kept quiet until
Felix called him on 08 Dcember 2011. Mark told Felix that he
had already met with Brebner and he had shown
him information about
the subdivisions.
The
other incident concerns a conversation he had with Mike on 9 December
2011 where he told Felix that Phillip had purchased another
farm and
would not be interested on the offer to purchase.
In
this letter, Felix warned Brebner that he should “
Be
aware as the farm is being marketed by numerous agents that you could
end up having to pay commission to more than one agent.
The answer is
to establish the source of information from the prospective purchaser
and then inform the agent to verify the information”
[6.24]
Felix and Brebner held a meeting on 10 December 2011 where the latter
admitted that indeed he did have contact with Mark
Fratzen. They
discussed other potential purchasers.
Peter
Kleu joined in the meeting and put in an offer of R7 000 000,00.
[6.25]
Felix testified further that up to this stage Brebner did not tell
him that he was negotiating with Phillip or that he should
not pursue
him.
[6.25]
Felix went on to state that he had a feeling that information was
being withheld from him.
He
wrote a letter
[26]
to Brebner
on 05 January 2012 and expalined to him that if Phillip has made an
offer and same is accepted , he (Felix) would
lodge a
commission claim against the defendant. He detailed the basis
of his claim, starting from how he approached Mike
up to the meeting
Phillip had with Brebner on 29 November 2011 and the reduced price
in-between.
[6.26]
It is imperative to reproduce Brebner’s response
[27]
to this letter in full.
“
Just
got your letter, and refer to “Marketing of Portion 8 and 9
Rietfontein / Phillip van Rooyen”
Please
note the following:
1. Phillip van
Rooyen has not yet made an offer to purchase.
2. A few months
prior to 20/10/11 (date noted by you as having handed Mr Kleynhans
all the info);
Tony Kennett was
introduced to me by Guido (his farm manager here at Schagen). I know
Guido personally and had mentioned that we
were considering selling.
He informed Tony. Tony had met with me , on more than one occasion,
on behalf of himself and PHILLIP
VAN ROOYEN in consideration of a
partnership to purchase the farm (in total). ALL INFORMATION WAS
HANDED TO TONY BY HAMISH BREBNER,
on which he and p. van Rooyen would
base an offer.
So the info that
you handed to Kleynhans (whom I have never met or had dealings with),
was in fact “second hand”.
I can go further
back to two years ago, when I heard from Phillip’s son Roelof,
that they were looking for a farm. I suggested
then that Phillip
should contact me. At that point, Phillip informed me that the farm
was too small. So he has been well aware
of the possibilities here
for a long time, and has shrewdly been watching and waiting.
Based on the
above, I fail to see that you have a commission claim.
Regards
Hamish Brebner
…………………
..
“
[6.27]
Felix responded to this email on 06 January 2012. It appears from his
response that he maintained a humble attitude by for
instance not
disputing that the information handed to Mike could have been second
hand and also requesting that Peter Kleu
be given an
opportunity because he wanted to improve his offer.
[6.28]
On 20 January 2012 after learning that the farm had been sold, Felix
confronted Brebner about it. The latter’s
response was
that “
win some, lose some”
[6.29]
In terms of the deed of sale
[28]
dated
20 January 2012, the farm was purchased by Inkuba Trust, represented
by Phillip.
[6.30]
The deed of sale was changed
[29]
and the parties to the agreement are now Inkuba Estates Property
Limited represented by Roelof Andries Van Rooyen.
[6.31]
The defendant’s attorneys reacted to the letter of demand by
stating that defendant had been in negotiation with Phillip
since
Felix got his mandate. Felix denied being told this.
[7]
Under cross examination
,
Felix admitted that various other estate agents were marketing the
property and that they could have taken prospective buyers
to view
the property. He also admitted that Brebner was only obliged to
report only on those prospective purchasers that were introduced
by
him.
[8]
He explained that the issue of commission would have been discussed
on the meeting of 03 June 2011. He denied that the exclusive
mandate
affected or altered his oral mandate. He re-iterated that the purpose
for the exclusive mandate was to afford Terblanche
an opportunity to
look into the issue of water rights.
[9]
Felix maintained that the non-exclusive mandate was for the entire
farm and that he made an error by not stating this and also
not
adjusting the price accordingly. I will revert to this later.
[10]
It was put to Felix during cross examination that Brebner would
testify that:
[a]
He gave him an oral mandate to sell the entire farm, but this was
changed by the exclusive mandate in terms of which he was
authorised
to sell the West farm only.
[b]
The non-exclusive mandate was for the West farm only as recorded and
there was no error with regard to the description or the
price
thereof.
[c]
He negotiated a highere price than what Felix was offering the
prospective buyers.
[d]
He has known Phillip for more than ten years.
[e]
He sold the farm to Phillip because he wanted to buy the entire farm,
not just the West Portion.
[f]
He gave Felix mandate to pursue Phillip because he already knew him.
[10.1]
It was also put to him that Phillip would testify that:
[a]
He (Phillip) never met him and was not introduced to the property by
him.
[b] He already knew
about the property by 26 June 2011. Brebner wanted R12m .
[c]
He only glanced / looked at the document that Kleinhans gave him,
moved it aside because he already knew the property. He did
not check
where it came from or the price.
[d]
He visited the property in November after his son had made it clear
that he wanted to join the family business. The property
was in a
poor state.
[e]
Brebner did not mention Felix .
[f]
He exchanged emails with his son on 07 October 2011 about buying
defendant’s farm.
[11]
I have no issues with the eveidence of Felix when assessed in its
totality, particularly in sequence of events as outlined
above.
The only illogical part is his assertion that the scope of the
non-exclusive mandate covered the entire farm.
[11.1]
In the letter dated 24 October 2011, Felix asked Brebner that
as their mandate had expired, he needed him to sign
another
non-exclusive
mandate. Therefore, its extension, or new mandate based on its
expiry cannot be for the entire farm.
[11.2]
It would make sense if he were to say that the non-exclusive mandate
was intended to formalize the oral mandate to concentrate
on the West
farm.
[11.3] Felix had an
oral mandate to sell the entire property and an oral mandate to
concentrate on the West farm and then the East
after the West has
been sold.
I
do not accept that the non-exclusive mandate was meant to cover the
whole farm, particularly in view of the price.
[11.4]
I
do accept though
and make a finding that the oral mandate to sell the entire farm was
not affected by the two written mandates. These were meant
to pursue
the agenda to sell the West farm first.
[30]
,
but evidence shows that he was marketing the East Portion too.
[12]
Felix, in my view was an honest witness and he gave his
evidence in a straightforward manner. The only confusion
related to
the effect and status of the written mandates. I cannot fault him .
The letter of demand relies on the two written mandates
as his cause
of action. However, the cause of action in the particulars of claim
is the oral agreement to sell the entire farm.
This was repeated on
27 October 2011 when Brebner told Felix to pursue Phillip despite the
fact that he and Tony failed to secure
a sale earlier. This was after
receiving feedback that the listing document was given to Mike
to hand to Phillip.
[12.1]
The documents referred to above, as well as the time line outlined
make sense and justify a finding that the initial oral
mandate was
not changed. Felix met Kleinhans on 21 October and gave
feedback to Brebner by letter dated 24th October.
They met on
27 October 2011. This was clearly in terms of the initial oral
mandate because as stated above, the exclusive
mandate expired on 23
September 2011. The issues that gave rise to the claim for commission
happened in-between the two written
mandates.
The
non-exclusive mandate was only signed on 27 October.
[13]
Felix was not able to answer questions relating to emails exchanged
between Phillip and his son. This in my view does not mean
that he
was not honest. He simply had no knowledge and the emails were only
revealed in court, hence they are marked with an ‘A”.
[14]
MIKE
KLEINHANS
was the second and last witness for the plaintiff . Until his
resignationin 2013, he was employed by Phillip to manage his
farm
known as Ideaal
[31]
.
[15]-
His evidence and that of Felix on the circumstances under which they
meT, their discussion on the day and subsequent days
corrobotate each
other on material respects.
[16]
He testified that Phillip had informed him on an earlier date that he
should keep his ear on the ground for information about
sale of farms
as he wanted one for his macadmia tress.
[17]
On 20 October 2011
[32]
, Felix
arrived, as arranged , and gave him a blue folder to hand to Phillip
. He signed acknowledgement of receipt, page
21 of Exhibit A. The
folder was transparent, as such, he could see the writing
inside, but he did not read the contents.
He gave the document to
Phillip on a date he could not exactly recall. Phillip
took a quick look and said that he was
not interested because he
already knew the farm. He later informed Felix what Phillip told him.
[18]
Mike was taken through the events relating to his meeting with
Viljoen, Phillip’s attorney where he was asked some questions
about his meeting with Felix and later on asked to sign an affidavit
about it. The gist of his evidence or complaint in this
regard
is that the affidavit was commissioned in his absence. This was
denied by Viljoen and his secretary who testified for the
defendant.
This is really not relevant, as such I will not go into further
details about it.
[19]
His cross examination was to put it mildly , in my view meant to
belittle him in that: (a) It was impressed upon him that
he is not
Phillip’s spokesperson, (b) Phillip would never lie, (c)
Philip never asked him to keep his ear on the ground
for information
on farm sales, (d) he was instructed not to give out information,
however, he gave Felix Phillip’s telephone
number, (e)
insinuatiions were made that he probably get incentives for sourcing
information about farms, (f) he is just a manager
of a small
vegetable farm , (g) Phillip was not at the farm on the day he
alleges he gave him the folder from Felix, (h) he admitted
in his
affidavit that Phillip would not discuss his business with him, (i)
Phillip did not see the price in the document
he gave him.
[20]
Throughout the cross examination, Mike remained calm and humble
inspite of all the questions that sought to put him in his
lowly
place. He struggled with dates, but I found him to be honest because
he did not for instance dispute the contents of his
affidavit. He
said it is what he signed, but the commissioning happened in his
absence. He was simply worried that there were annexures,
but he does
not see them in the documents before court.
[21]
The relevant part of his evidence is that he gave Phillip a
folder , not just one page (acknowledgment of receipt)
as it
was put to Felix by counsel for the defendant.
[22]
My first impressions was that he was struggling with
dates because of advanced age
[33]
,
but upon my enquiry, he confirmed that he was in his fifties. His
answers were coherent and he was consistent though.
DEFENDANT’
EVIDENCE
[23]
The first witness for the defendant was
DANIEL
ROUX VILJOEN
.
He is an attorney , having been admitted in 1979. His evidence in
chief centred around his encounter with Mike . The purpose ,
according to him was to gather the version of events and his
relationship with Felix. The meeting took place on 12 July 2013 .
It
was arranged by Phillip and was prompted by a subpoena Mike received
to testify in this trial. The gist of Viljoen’s evidence
in
chief was about how he interviewed Mike, made notes and then
drafted an affidavit
[34]
which
he sent to Phillip’s office for him to read and get
commissioned.
[24]
Other than the ethical concerns around the manner in which the
meeting and interview was arranged ;
the cross examination
yielded the following facts that are relevant in this dispute:
[24.1]
When he consulted with Mike, he already knew (because Phillip
informed him,) that Phillip received documents from an estate
agent.
It was a full listing of the farm.
[24.2]
He was involved in correspondence with Phillip whilst acting
as attorney for the defendant in this matter and he did
consult with
Phillip after receipt of summons. He knew Phillip’s version. He
thought Phillip and defendant were in consensus
that there was no
agent involved in the sale. He was not involved in drafting the
indemnity cluase in the deed of sale.
[24.3]
He knows Roelof had an interest in the farm . The first
discussion he had with Phillip about the farm was in November
2011.
He cannot recall earlier discussions. He knows that Phillip’s
son wanted to farm, but cannot recall if this was discussed
earlier
than November 2011.
[24.4]
He confirmed email communication between him and Phillip on 14
December 2011
[35]
. They had a
consultation earlier about Haffenden farm and he wanted to know if he
should close the file. He had earlier sent Phillip
an account
[36]
on the consultation they had about possible purchase of Haffenden
farm.
[24.5]
He confirmed that he received an email
[37]
from Phillip on 06 January 2012. In this email, Phillip explains,
amongst other things that that “
Roelof
stel nou positief belang in die totale Haffenden Groves (East and
West) en hy en Hamish gesels wat seker sal spoed optel
volgende week”
Phillip,
in this email also requested Viljoen to attend to certain things that
he numbered 1-12 , amongst which is the value to
be attached to the
pack house, registration of a company with Inkuba Trust as
shareholder that would buy the farm as a going concern.
Phillip
concluded the email by telling Viljoen that this is a great
opportunity and responsibility for Roelof and that he was going
to
help with limited finance “
maar hy
gaan groot skuld maak om daar sy toekoms te bou”
[24.6]
Viljoen went on to confirm that in the first transaction,
Roelof did not feature because the sale was between the
Trust and the
defendant. However, this was changed because they could not comply
with the timelines set by the defendant. He does
not know why time
was of the essence to Brebner.
[24.7]
In October 2011 Viljoen assisted Amanda De Lange of Kellerprinnce
estate agency with conveyancing work in respect
of the
sale of the Western portion of defendant’s farm to a
company known as Xpectrade. On 11 January 2012, he wrote
an emai
[38]
l
to Amanda and attached a deed of sale. He also advised her that “
the
seller is currently in negotiation with a third party as regards the
possible sale of the totality of the farm and that final
decision in
this regard will only be made by 20 January 2012…”
[24.8]
Viljoen confirmed that he knew that there was a mandate to sell the
Western Portion of the farm. When he consulted with
Phillip on 30
November 2011, he was already asisting De Lange . During January
2012, Brebner told him that he was in negotiations
with a third party
to buy/sell the farm.
[24.9]
He conceded that the real value of the farm as far as he knows is in
the Western Portion.
[24.10]
He was referred to the deed of sale he prepared in the transaction
between Xpectrade and defendant
[39]
.
He admitted that he used the information in this document in
the subsequent agreement between Inkuba Trust and defendant.
[24.11]
He was asked about the indemnity clause in the deed of trust between
Inkuba and defendant and the reason thereof. Viljoen
explained that
it was a standard clause
[40]
.
When asked whether at the time the issue of commission was not
discussed between the parties, he explained that he knew there
was
correspondence about it, but could not remember whether it was before
of after the agreement was signed.
He
was referred to the deed of sale between Xpectrade and defendant
where it is specifically recorded that commission is payable
and
asked why it was necessary to put an indemnity clause in the Inkuba
Trust agreement when the parties are certain that no agent
was
involved.
His
answer was that he knows that the issue of agent came up , but
that both parties were adamant that no agent was involved.
[24.12]
When asked whether he knew of the correspondence
[41]
between Felix and Brebner about possibe claim for commision,
Viljoen’s answer was that “
it
is not impossible”.
When pressed by the court for an answer, he maintained that he could
not say it was possible or impossible.
[24.13]
Viljoen was asked, in his capacity as trustee of Inkuba Trust what
the issues were with regard to the commission claim by
Felix. He
explained that as far as he knows, the parties said that Felix did
not qualify for commission because he did not contribute
anything and
that they were at all times in negotiations. They never discussed
whether he would at least be entitled to commission
for the West
Portion. He only heard that Felix had a mandate when they started
litigation.
[24.14]
It was further established during cross examination that Inkuba Trust
was subsequently substituted by a company
[42]
in the deed of sale.
[24.15]
It was also established that when the commission claim came up
Viljoen was appointed to represent defendant and that
he sought
Phillip’s input to answer to the allegations in this regard.
Emails
[43]
were exchanged
between Phillip and Viljoen wherein the former was asked to explain
whether Mike had spoken to him about the sale
of the farm. Phillip’s
response was that Mike has placed a 2 page document on his desk. He
was already aware of the farm.
Phillip was also asked to comment on
the response to the commission claim.
[24.16]
It was also established that he already knew about Mike at this time
(April 2012), but only took his statement (affidavit)
in 2013. His
expalantion is that he did not want to take a statement then because
he did not want to cause trouble between Mike
and his employer. He
only took an affidavit after his resignation because it would have
been difficult to get hold of him and there
was no longer any
employment relations to protect. When asked if he believed Mike did
something wrong, Viljoen answered that Phillip
does not believe that
what he did was right. According to Viljoen, Phillip does not take
advise from mangers and he did not ask
Mike to procure property for
him.
[24.17]
It was also established that Viljoen has always known that Phillip
received documents from Mike, even before he sent the
emails referred
to above.
[24.18]
Viljoen conceded that the affidavit he drafted for Mike to sign is
not entirely correct because it gives an incorrect
impression
that Phillip received one page from Mike. The page contains Mike’s
acknowledgement of receipt of documents. He
admitted that he has seen
the documents, and it is more than 2 pages.
[24.19]
In re-examination, it was reiterated that defendant in this action is
Haffenden, not Phillip, hence the response in the
reply for further
particulars that defendant did not receive the documents in question.
It
was also emphasized that the cause of action in the letter of
demand was the two written mandates and the response was
based on
that. In conclusion, it was also placed on record that it would
have been impossible for Viljoen to respond to the
letter of demand
without input from Phillip.
[25]
Viljoen was non-commital and evasive when confronted with facts
that contradict his version. His answers were words such
as “
it
is not impossible
”. His role in the matter appears to have
been mainly to do damage control by ensuring that Mike’s
version
is recorded and to reconstruct the events to formulate a
defence.
He
tried in vain to create an impression that Phillip and his son were
always interested in Brebner’s farm and that the matter
was
discussed with him. However, he could only mention the November 2011
consultation and could not recall earlier discussions.
[26]
The next witness for the defence was
JOHANNA CATHARINA WASSERMAN.
She is an employee of Cosmos Macadamias. She is the perosn who
received a draft affidavit from Viljoen after his consultation with
Mike. She confirmed that she called Mike and asked him to read and if
satisfied, to get it commissioned. Mike did as advised and
brought
back the affidavit, she scanned it and sent back to Viljoen.
She
testified further that Phillip does not discuss any of his business
with managers, espescially Mike because he does not trust
him.
[27]
She conceded under cros examination that being asked to keep an ear
on the ground for information about property sales is not
a
discussion of one’s business. She denied being present when
Mike handed the docments from Felix to Phillip. She was in
that
meeting, but had stepped out briefly and when she returned, she saw
some documents on the table.
[28]
When asked to explain why Phillip does not trust Mike, Ms Wasserman
simply stated that “I cant tell you”. When
pressed for an
answer, she answered that Phillip did tell her that she should not
discuss his business with Mike.
[28.1]
Ms Wasserman’s evidence appeared rehearsed to protect Phillip,
hence she was at pains to create an impression that
Phillip would
never discuss his business with Mike, even though she conceded that
giving information about farm sales does not
amount to such. She did
concede though that she was only asked to testify the previous day
and she had to refresh her memory about
what happened.
[29]
PHIILIP VAN ROOYEN
was the next (and last ) witness
for the defendant. He testified that:
[29.1]
He is a businessman and farmer and has been farming for 31 years at
White River, Nelspruit.
[29.2]
He has known Brebner for more than 10 years. He specializes in
electronics and does work for his copany.
[29.3]
Aroud 2010, his son Roelof was working at the factory as a manager
when he and Brebner struck a conversation about the latter’s
farm.
[29.4]
He considered a joint venture with Tony Kennet and discussed other
business ventures. Brebner priced his farm at R13m, and
he considered
it to be too high. He wanted to buy the entire farm.
[29.5]
Phillip gave him details about the farm by email
[44]
dated 27 June 2011. It is a two page description of the property.
[29.6]
On 07 October 2011 he sent an email
[45]
to his son, Roelof who was studyin for an MBA at Stellenbosch
University. He told him amongst other things about his plans to
purchase a farm. He also enquired from him whether Cosmos was part of
his plans because he wanted him to join the business.
[29.7]
He visited the farm with his son and found it to be in a state of
neglect. He mentioned this to Brebner. They never discussed
Felix or
reduced price.
[29.8]
He wrote an email
[46]
to
Brebner and requested certain information about the farm.
[29.9]
On 13 December 2011 Brebner sent him an email and referred to
an offer he had made. Brebner indicated that he would
accept R12m.
[29.10]
He asked Viljoen
[47]
, as his
attorney and conveyancer to look into certain specified items as he
was in the process of buying the farm. He was not considering
buying
the West Portion.
[29.11]
He confirmed the emails exchanged between him and Viljoen.
[29.12]
When asked about Mike, Phillip testified about how he came to employ
him. The plot that Mike manages is a buffer zone between
a squatter
camp and his farm. His neighbour recommended that he employ
Mike. He pays him a salary of R7000,00 per month,
and he has a 16%0
profit share. Mike, according to Phillip is a good vegetable farmer.
[29.13]
He denied asking Mike to keep an ear on the ground for information
about farm sales. He would not discuss his busines with
him. Mike has
handed in his resignation on his own accord. There is no bad blood
between them. In any event they had realized
that vegetables
are not profitable and Mike had started to establish a nursery.
[29.14]
He also testified about the meeting of Octber 2011 at his office
with his staff. Mike walked in and handed him a folder
from an estate
agent. He looket at it and realized that it is a farm that he knows
about. He cannot remember what he did with the
document. He did not
count the pages. He refers to the folder as a 2 page document because
that is what he calls Brebner’s
offer he received earlier.
[30]
Under cross examination,
PHILLIP
conceded that he was in court throughout the proceedings until
Viljoen testified. He admitted that if anything was put to the
witnesses that he did not agree with he would have taken it up with
the attorney. He did not know how to respond to a question as
to
whether his version that was put to the witnesses was correct,
but conceded again that he would not just let it go if
it was
incorrect.
[31]
He agreed that his initial interest on the farm was for purposes of a
joint venture with Tony Kennet, but reluctantly admitted
that it
changed and he wanted to buy the farm for his son.
[32]
He admitted that he was fighting same fight with Brebner because of
the indemnity clause that makes him liable for commission
if the
later loses this case.
[33]
He denied a suggestion that he communicated the fact that he received
documents from Mike to his legal team. They discussed
the commission
issue in Pretoria months ago.
[34]
He reluctantly admitted, (after being confronted with an email he
wrote to Viljoen about a consultation with counsel) that
they
discussed the merits of the claim, but only when they saw
counsel, around September 2012.
[35]
He denied that the defence team knew that he received documents from
Mike. When asked if he told Brebner, his response was
a long silence,
followed by “
let me wreck my
brain..”
and then a denial.
[36]
He admitted that it has always been out in the open because he never
disputed receiving certain documents from Mike. He referred
to pages
122 and 123 of Exhibit A, being information about the farm. He did
not see that the document related to a portion only,
though he was
aware that at some point only the West Portion was being marketed.
Brebner has always been open that he was negotiating
with other
buyers and that his preference was to sell the West portion and stay
in the East, in his nice house.
[37]
He denied any insinuation that he considered what Mike did as being
out of order . Mike is free to hand him any document and
that does
not constitute discussing his business. It was a coincidence though
that he was looking for a farm and Mike brought the
information.
[38]
Phillip was asked why he only received the details about the farm
only in November 2011. His answer was that he had the details,
but
wanted it in writing. He could not confirm if his partner, Tony, had
any written details. He forwarde the details to him because
he was
not sure he had the information.
[39]
The joint venture failed after he recived the information about the
farm. He continued discussions with his son.
[40]
It was further established that he gave three reasons during his
evidence why he wanted to buy defendant’s farm;
initially
he wanted to buy the farm for a joint venture with Tony, then for his
son and the third reason is that whether Roelof
commited himself to
farming or not, he would still have bought it.
[41]
He denied a suggestion that he only discussed the farm with his
attorney after he received documents from Mike. It was an ogoing
consultation with a friend.
[42]
He conceded that the reason they could not agree on the deal in 2010
and earlier in 2011 was because of the price. They started
at R13m.
He could not answer the question as to how many times Brebner reduced
the price.
[43]
He denied what was put to Felix by his counsel that Mike gave him the
document marked p. 121 (acknowledgment of receipt by
Mike).
[44]
He could not explain why his version about Brebner’s intention
to sell the West farm differed with the version of Viljoen
that
Brebner always wanted to sell the entire farm.
[45]
He admitted that the identity of the ultimate purchaser is irrelevant
because it is his company.
[46]
He admited that he was also considering and had looked at other
properties to buy at the same time, but could not remember
when the
sales were concluded.
[47]
He admitted having paged through the document Mike gave him and
realized that it a property he knew.
[48]
He did not know that there was an indemnity clause in the deed of
sale, if he did, he would not have signed or advised
his son to
sign the agreement. He did not read the clause, as such he is not in
a position to comment about the recording that
there was no agent
involved.
[49]
Phillip was a hesistant witness. He often said that he was thinking,
paused before answering. He appeared worried by the revelations
in
the emails and documents , some of which he admittedly did not know,
such as the indemnity clause.
[49.1]
His evidence on whether or not he saw the price on the document he
received from Mike is not probable. It is a four page
document. The
name of the estate agent appears on the first page and in the second
page in highlighted capital letters on
top. He would have
had to page to the second page to identify the farm.
I
therefore make a finding that it is improbable that he did not see
that the offer was coming from , AJESTATE AGENT , represented
by
Felix as it appears on the first page. The document has only four
pages, and although the price appears on the last one, it
is
improbable that he would not have seen it.
[49.2]
Although much is being made about the earlier negotiations between
him and Brebner, all that there is before Felix left the
documents
with Mike is the email from Brebner of 27 June 2011 addressed to
Phillip and forwarding details of the farm. On his version,
this was
for a joint venture with Tony. It failed after this email. The high
price was the reason.
[49.3]
The other eveidence relied on to prove constant negotiations between
Phillip and Brebner is the email dated 07 October 2011
from Phillip
to his son, Roelof. This email does not mention the name of the farm
that he says he would finalize a sale of the
next week. There is no
evidence that there has been negotiations after the failure of the
joint venture in June and the date of
this email.
[49.4]
There is no evidence that the 2010 discussions between Brebner
and Roelof yielded anything. The first result is the
joint venture
attempt in June 2011.
[49.5]
The next meeting took place in November 2011 and by this time
Felix had already left the documents at Phillip’s
farm. Viljoen
could not recall any other earlier discussions. Strange enough,
Phillip only gets to be shown the property on 21
November 2011.
WHAT
WAS THE EFFECTIVE CAUSE OF THE SALE
[50]
Defendant’s counsel argued in his written and oral argument
that the trigger for the sale was the fact that Phillip’s
son
completed his studies and wanted to join in te farming business. This
is basically what was pleaded.
This
contention is supported in the main by an allegation that Brebner and
Roleof discussed the sale of the farm in 2010. The next
piece of
evidence is the email dated 07 October 2011 from Phillip
to Roleof. I have already cast doubt on this
as an effective
stimuli for the reasons stated above. I may add that there is no
response from Roelof.
[51]
The reduced price on the West Portion meant nothing according to the
argument advanced on behalf of the defendant. The reason
is that this
price was further reduced in December 2011 to R6 200 000,00. Felix
did not communicate this price to Phillip.
[52]
This argument loses sight of the fact that there is evidence, in
terms of the time line I have sketched with reference to emails,
that
Brebner and Phillip were already having sbehind the scenes meetings
after Felix left the farm listing with Mike to hand
over to Phillip.
Felix testified that he was told that Phillip had no interest and has
bought another farm. He then suspected that
some information was
being withheld from him and that he was being misled.
[53]
Brebner’s response to Felix when he warned him about his
potential claim for commission is further proof that there was
a
trigger between 2010, the failed joint venture and the subsequent
acceptance of offer by Phillip .
I
repeat part of the email for emphasis:
“
I
can go further back to two years ago, when I heard from Phillip’s
son Roelof, that they were looking for a farm. I suggested
then that
Phillip should contact me. At that point, Phillip informed me that
the farm was too small. So he has been well aware
of the
possibilities here for a long time, and has shrewdly been watching
and waiting.”
[54]
It is common cause that there were many agents marketing the property
at the time. This is clear from the fact that the deal
involving
Kellerprince Estate Agency for purchase of the West Portion fell
through when Phillip’s offer was accepted.
This
is an indication that the intention throughout was to sell the entire
farm and it accords with the testimony of Felix. Selling
portions and
joint ventures were compromizes, hence the written mandates.
[55]
The defendant ran the risk of exposing itself to potential claims for
commission. In this case, Plaintiff’s representative,
Felix ,
realized that Brebner was having meetings behind his back with
potential purchasers he has introduced. He warned him.
[56]
It is common cause, taking into account the efforts of Felix outlined
in the timeline, that he was at all times marketing both
portions and
provided feedback to Brebner. At no stage did Brebner tell him to
stop pursuing any prospective purchaser. He shows
what he believes is
his trump card (the email referred to in 71 above) to Felix only when
confronted about his secret dealings
with Phillip. There is no
evidence to show that he terminated the oral mandate at anytime ,
instead they continued to engage about
prospective buyers, including
Phillip.
LEGAL
PRINCIPLES
[57]
Counsel for both parties submitted written submissions on the last
day of trial and referred me extensively to decided
cases on
the question of effective cause of sale in the present context .
I am indebted to their assistance in this regard.
[58]
The approach I have taken is a common sense one, based on the
timeline as outlined above. Both parties relied on dealings with
each
other to prove that the version of the other one is not the most
probable.
[59]
The issue here, in deciding what the effective cause was is to
consider what triggered the interest of Phillip in the property
after
the failed attempts in 2010 and earlier in 2011. In my view, the fact
that Phillip and Felix never met in person is of no
consequence. The
introduction part has been met because of the admission by Phillip
that he did receive the documents from Mike
and did glance at them.
I
have already made a finding that, based on the circumstances
[48]
,
he must have seen the price.
[60]
It is common cause that when Brebner first met Felix his price was
unrealistic and that through the efforts of Felix of showing
him
comparable prices the price of the West Portion was reduced from R9,
5m to R7, 650m.
It
is also common cause that the value of the entire farm lies in the
West Portion.
Based
on this, reduction of the West Portion price amounts to removal of a
major hurdle. Brebner realized the wisdom of reducing
price and
further reduced it, in December 2011 to R6 200 000.00. The fact that
this was not communicated to Phillip by Felix is
not important and
cannot be said to be an intervening and effective cause in the same
way as described in the case of
Aida
Real Estate Ltd v Lipschitz
[49]
that
the further enquiry then will be whether such factor “
outweigh
the introduction by being more than or equally conducive to the
bringing about of the sale..”
[61]
In my view, the approach in the matter of
Webranchek
v L K Jacobs & Co Ltd
referred
to in in paragraph 14 of the judgment of the Supreme Court of
Appeal in the matter of
Wakefields
Real Estate v Attree
[50]
is
more relevant in this case. Lewis JA in paragraph 14 said:
“
14]
It is notoriously difficult, when there are competing estate agents,
to determine who is the effective cause of the sale that
eventuates.
It may be that more than one agent is entitled to commission. This
was put trenchantly by Van den Heever JA in Webranchek
v L K Jacobs &
Co Ltd
1948
(4) SA 671
(A) at 678 where he said:
‘
Situations
are conceivable in which it is impossible to distinguish between the
efforts of one agent and another in terms of causality
or degrees of
causation. In such a situation it may well be (it is not necessary to
decide the point) that the principal may owe
commission to both
agents and that he has only himself to blame for his predicament; for
he should protect himself against that
risk.’
Van
den Heever JA continued (at 679):
‘
[A]
judge who has to try the issue must needs decide the matter by
applying the common sense standards and not according to the
notions
in regard to the operation of causation which “might satisfy
the metaphysician” . . . . The distinction between
the concepts
causa sine qua non
and
causa causans
is
not as crisp and clear as the frequent use of these phrases would
suggest; they are relative concepts. . . . It stands to reason,
therefore, that the cumulative importance of a number of causes
attributable to one agent may be such that, although each in itself
might have been described as a causa sine qua non, the sum of efforts
of that agent may be said to have been the effective cause
of the
sale.’
[61.1]
The reduced price of the West Farm clearly caught attention of
Phillip and triggered renewed negotiations .
[61.2]
I am unable to make credibility findings with regard to Brebner
because he did not testify.
[61.3]
However, it is abundantly clear from the emails exchanged between him
and Felix that he witheld information that he was talking
to and
holding meetings with Phillip behind Felix’s back.
This
was confirmed by his wife and conceded by counsel during cross
examination. This happened same time when he was leading Felix
on by
encouraging him to go after Phillip.
[61.4]
In my view, it shows that there was an attempt to muscle out the
agent by both parties. This coupled with the express provision
in the
deed of sale that no agent was involved , creates a prima facie
impression that their renewed negotiations were triggered
by Felix.
In
the absence of testimony to the contrary from Phillip it becomes
concrete proof.
The
version of Brebner
[62]
As stated above, the difficulty for the defendant is that the
version of Brebner was not subjected to cross examination,
even after
it was put to the plaintiff’s witnesses.
[63]
I agree with the submission of plaintiff’s counsel that the
evidence of plaintiff’s witnesses in as far as it should
have
been contradicted by Brebner’s evidence must be accepted as
proven or common cause unless they are found to be inherently
incapable of belief either on credibility or probability.
[64]
I have already outlined the sequence of events and communication
between Brebner and Felix, supported by correspondence. I
have no
reason to disbelieve for instance, the fact that Brebner and Felix
met after the latter met with Mike and that Brebner
gave instruction
that Phillip must be pursued.
In
fact, Brebner’s defence is that the information Felix gave
Phillip was second hand. This is not correct, because the price
had
been reduced.
Therefore,
there is nothing inherently improbable in oral and documentary the
version of events as testified by plaintiff’s
witnesses before
me.
[64.1]
Brebner only mentioned his dealings with Roelof when Felix confronted
him with a possible claim for commission. The question
is why he
never mentioned it when he told Felix to pursue Phillip. He only
mentioned the failed joint venture between Tony and
Phillip and that
they could not agree on price.
CONCLUSION
[65]
Therefore, the action succeeds and I make the following order against
defendant:
[65.1]
Payment of the amount of R660 000,00 with interest at the prescribed
rate
a tempore morae
to date of payment.
[65.2]
Costs of suit .
MAKHUBELE
AJ
Acting
Judge of the High Court
DATE
HEARD: 17, 18, 19 & 20 February 2014.
DATE
OF JUDGMENT: 14 April 2014
APPEARANCES:
PLAINTIFF:
ADVOCATE T.A.L.L POTGIETER
Instructed
by: Van Zyl Le Roux Inc.
Monument
Park, PRETORIA
Tel: (012) 435 9444
Ref:
415102/Geldenhuys/JDW
DEFENDANT:
ADVOCATE PL UYS
Instructed
by: Viljoen Wagner Attorneys
C/O
Gildenhuys Malatji Inc
Groenkloof,
PRETORIA
Tel:
(012) 428 8600
Ref:
R Venter/vp/01685350
[1]
Paragraph
10 amended by notice dated 29 January 2014. Defendant’s
notice for consequential amendment is dated
04 February 2014 and
both were granted during trial.
[2]
Some
issues that were placed in issue were either admitted before the
trial commenced and or became common cause during witnessess’
evidence or cross examination.
[3]
The
mandate expired on 23 September 2011.
[4]
Annexure
A to defendant’s plea. Exhibit ..
[5]
Annexure
B to defendant’s plea (exhibit)
[6]
paragraph
7.4 of defendant;s plea.
[7]
Defendant’s
version seeks to qualify the oral mandate by the two written
mandates that authorized plaintiff to market the
West Farm.
Plaintiff maintains that the original mandate remained valid
throughout and was reaffirmed on 27 October when Brebner
authorized
its representative, Felix, to pursue Phillip.
[8]
Exhibit
“A”
[9]
page
38-40, Exhibit A.
[10]
page
49, Exhibit A
[11]
page
62 , Exhibit A
[12]
p.71-72,
Exhibit A
[13]
p.98-101,
Exhibit A
[14]
p.104,
Exhibit A
[15]
letter
dated 19 July 2011 addressed to Mr. EH Mawela, p. 118, Exhibit
A
[16]
p.4-25,
Exhibit A.
[17]
letter
dated 09 September 2011, p.120, Exhibit A
[18]
Annexure
A to defendant’s plea and page 119, Exhibit A.
[19]
p
122-125.
The
first page is marked “CONFIDENTIAL”
ATT:
PHILLIP VAN ROOYEN, MIKE KLEINHAND, KOSMOS MACADAMIAS. At the bottom
of the page it is written: “AJ ESTATE AGENTS….
“.
Contact details of Felix and Barry were also provided.
The
property is decribed in page 2 as “…
situated in
Alkmaar / Schagen area. The original farm which was Portion 51
(Remaining Extent) of the farm Rietfontein has
been subdivided into
two portions which subdivisions have been approved by the surveyor
general. Only the West portion (as indicated
on the map) is for
sale.”
The
price of “ R7, 600,000.oo (Seven Million Six Hundred
Thousand Rand) Exclusive of VAT is mentioned in the last
page under
paragraph INVESTMENT”
[20]
P.
121, Exhibit A
[21]
P.126,
Exhibit A
[22]
p.
127, Exhibit A
[23]
p.128-130,
Exhibit A
[24]
Defendant’s
counsel objected on the basis that this is hearsay. However, a
concession was made during cross examination
that indeed the wife
has confirmed this.
[25]
P.131,
Exhibit A, signed by Brebner on 10 December 2011.
Some
of the recordings are that : Kleu was interested in the West Portion
, but the price was high for him. Brebner was not willing
to sell
the East Portion, until the West was sold.
“
8.
After the meeting, “Mr Brebner informed Felix that he had
reconsidered the price of the West Portion and after much
consideration had reduced it to a net price of R6, 200, 000.00
Exclusive of Vat and Agents commission”
[26]
p.
137, Exhibit A
[27]
email
from Brebner to Felix dated 05 January 2012, p.139, Exhibit A
[28]
p.
154, Exhibit A
[29]
This
is irrelevant now because Phillip admitted during cross examination
that ..
Therefore,
for al intents and purposes the
[30]
See
paragraph 6.8 above. The oral mandate to sell the farm was not
revoked.
[31]
he
is a qualified tool, jig, dye and pattern maker. he is also a
qualified quality engineer, qualified processing engineer, qualified
audit engineer and he had a lot of businesses. his last employment
before joining phillip’s company was as a security guard
for a
company that was fighting rhino poaching.
i
have noted that counsel for the defendant in his written submissions
has indicated that he worked as a rhino poacher. this is
not
correct.
[32]
Felix
testified that this was on 21 October 2011. Mike truggled with
dates. This in my view is of no consequence.
[33]
I
thought he was in his seventies because of his haggard look, and
slow, calculated but firm responses. Phillip testified
about
his alcoholism before he employed him.
[34]
P.
300, Exhibit A
[35]
p.314,
Exhibit A
[36]
p.315,
Exhibit A
[37]
p.141,
Exhibit A, addreesed to Nadine Viljoen (Viljoen’s daughter and
partner in the law firm)
[38]
p.143,
Exhibit A
[39]
p.144,
Exhibit A
[40]
Clause
18 reads “COMMISSION: The PURCHASER acknowledges and warrants
that no estate agent introduced the PURCHASER to the
PROPERTY or the
SELLER or did anything directly or indirectly to bring about this
sale andindemnifies the SELLER against any
commission calim”
[41]
P.
137-139, Exhibit A
[42]
email
dated 15 February 2012, p. 178, Exhibit A
[43]
p.
217-219 dated between 18 and 20 April 2012, Exhibit A.
[44]
p.106,
Exhibit A.
[45]
p.120A,
Exhibit A
[46]
p.130A,
Exhibit A.
[47]
email
of 06 January 2012 (p.141, Exhibit A already referred to in the
evidence of Viljoen)
[48]
the
name of the agency appeared on the first page and second page and
the fact that the document is a mere four pages as well
as his
admission that he glanced at it.
[49]
1971
(3) SA 871
(W) at 873H-874A where Marais J sets out the principle as
follows:
“
[50]
(666/10)
[2011]
ZASCA 160
(28 September 2011)