Oos Vrystaat Kaap Bedryf Bpk. v Van Aswegen (054/05) [2006] ZASCA 13; [2006] SCA 14 (RSA) (17 March 2006)

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[2006] ZASCA 13
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Oos Vrystaat Kaap Bedryf Bpk. v Van Aswegen (054/05) [2006] ZASCA 13; [2006] SCA 14 (RSA) (17 March 2006)

THE SUPREME COURT OF APPEAL
OF SOUTH AFRICA
Not Reportable
Case no: 54/05
In the
matter between:
OOS
VRYSTAAT KAAP BEDRYF BEPERK
Appellant
and
ISABELLA
FREDRIKA JOHANNA VAN ASWEGEN
Respondent
_______________________________________________________
Coram
:
Scott,
Streicher et Navsa JJA
Date of hearing:
23 February 2006
Date of delivery:
17 March 2006
Summary
: Whether clause in document amounts to
an irrevocable offer to sell maize at a stipulated price ─ clause
meant that the offer could
be accepted within 14 days ─ not that it
could not be withdrawn within that time period.
Neutral citation:
This judgment may be referred
to as
Oos Vrystaat Kaap Bedryf Beperk v Van Aswegen
[2006] SCA
14 (RSA).
_______________________________________________________
JUDGMENT
_______________________________________________________
NAVSA JA
NAVSA JA:
[1] This appeal concerns the interpretation of the
following clause in a document:
‘
Hierdie ooreenkoms word eers van krag by
ondertekening daarvan deur die Verkoper of sy skriftelike
gevolmagtigde en ‘n gemagtigde
van die Koper. In ieder geval sal
die Koper, indien hy besluit om hierdie ooreenkoms te onderteken, dit
aldus onderteken nie later
nie as 14 dae na datum waarop die Verkoper
of sy verteenwoordiger hierdie ooreenkoms onderteken het, by gebreke
waaraan geeneen van
die partye gebonde sal wees aan die terme hiervan
nie.’
[2] Upon signature by both seller and purchaser of the
document in which the clause appears, it would undoubtedly have
constituted
an agreement of sale of 500 metric tons of maize at a
price of R580-00 per ton. However, the crisp question for
determination in
this appeal is whether, upon signature of the
document by
only
the seller, this clause operated so as to
constitute an offer by the seller, irrevocable for 14 days, to sell
to the purchaser that
quantity of maize at the stipulated price.
[3] Van der Merwe J, who heard the matter in the
Bloemfontein High Court, considered the clause (clause 21) and after
referring to
authorities concluded as follows (at 427 C-D):
‘
In die onderhawige geval kan ek nie met die vereiste
mate van sekerheid bevind dat klousule 21 van die koopkontrak meer
bevat dan
of onderskei kan word van ‘n aanbod om te verkoop wat
verval na 14 dae na datum van ondertekening daarvan deur die verkoper
of
sy verteenwoordiger nie. Soos Roper R in
Greenberg v Wheatcroft
[1950 (2) PH A56 (W)] meen ek dat dit nie duidelik is dat afgewyk
word van die normale regsreël dat ‘n aanbod te eniger tyd
voor
aanvaarding daarvan herroepbaar is nie. Ook meen ek dat klousule 21
minstens dubbelsinnig is in hierdie opsig en derhalwe
contra
proferentem
uitgelê moet word. . .’
In essence the learned judge was of the view that the
clause in question did not constitute an offer that was irrevocable
for 14 days
and that it meant no more than that the offer could be
accepted within 14 days but not that it could not be revoked within
that period.
[4] The history of the matter is relatively
uncomplicated. The appellant company Oos Vrystaat Kaap Bedryf Beperk
(OVK) conducts business
in the Free State province as a farmers’
co-operative and inter alia purchases grain actually harvested and in
production which
it then sells through an exchange. OVK’s head
office is in Ladybrand. It operates silos to and from which grain is
delivered. The
respondent Mrs Isabella Fredrika Johanna van Aswegen
(Van Aswegen) is a farmer on the farm
Lynplaas
in the
district of Excelsior in the Free State province.
[5] On 26 October 2000 at OVK’s farming supplies store
situated in Excelsior, approximately 13 kilometres from Lynplaas, Van
Aswegen’s
husband, Mr Andries van Aswegen, signed the document in
which the clause in question appears, purportedly signifying his
intention,
on her behalf, to sell the maize as described earlier to
OVK. The document was thereafter delivered to OVK’s office in
Ladybrand.
On 9 November 2000, within the envisaged 14-day period,
the document was signed on behalf of OVK by the head of its grain
division,
Mr Stephan Oberholzer.
[6] The document is a standard form used by OVK which it
makes available to farmers through a number of outlets. The document
is entitled
‘Graanaankoopooreenkoms’. It contains spaces for
particulars such as the quantity of grain, the quality, the price and
the expected
delivery date to be inserted. At the end of the document
space is provided for signatures for or on behalf of the purchaser
and seller
and witnesses thereto.
[7] When the final date for delivery as stipulated in
the document had passed, namely 31 August 2001, and the grain had not
been delivered,
OVK wrote to Van Aswegen threatening to impose a
penalty for non–delivery. She replied through her attorneys,
denying that she
had entered into any agreement with OVK and denying
further that anyone was authorised to conclude an agreement on her
behalf. Further
correspondence ensued to no avail. OVK instituted
action against Van Aswegen in the Bloemfontein High Court, claiming
damages in
an amount of R180 500-00 which it alleged flowed from
her failure to deliver the maize.
[8] Van Aswegen denied that a binding agreement had been
concluded. First, she relied on the fact that there had been no
written authorisation
for signature on her behalf, as required by the
document in question. Second, that her husband in fact had no
authority to bind her.
Last, that even if he had been so authorised,
his signature on the document meant no more than that the document
constituted a revocable
offer, which was in fact revoked before it
was accepted by OVK. In other words the clause in question did not
have the effect of
constituting an irrevocable offer as contended for
by OVK.
[9] Evidence was adduced by both parties and Van der
Merwe J held, in respect of Van Aswegen’s first ground, that the
clause in
the document which provided that authorisation for
signature on behalf of the seller should be in writing was inserted
for the benefit
of OVK. It could thus waive that requirement and in
the present matter had done so.
[10] It was common cause that a similar document
relating to a prior harvest in the same year had been signed by Van
Aswegen’s husband
on her behalf which signature she subsequently
ratified. That agreement was beneficial in that the maize price
dropped dramatically
after that agreement was signed and she was thus
placed in the favourable position of having secured a higher price
than the price
subsequently prevailing at the time of delivery. The
remainder of that prior harvest had been sold at a much lower price
than that
agreed with OVK. However, soon after the document presently
under discussion was signed, the market moved in the opposite
direction
and the maize price started rising. Van Aswegen was
concerned that, this time, the stipulated price might prove a bad
bargain.
[11] The learned trial judge was unimpressed by Van
Aswegen. He concluded that her evidence that she had not authorised
her husband
to sign the document under discussion was not credible.
He also drew an adverse inference from her husband’s failure to
testify.
For present purposes it is not necessary to discuss further
the reasons for his conclusion in this regard.
[12] The learned trial judge accepted (in my view,
correctly) the evidence of a former employee of OVK, Mr Wynand Louw
Steyn. The
witness testified that Van Aswegen’s husband had
contacted him a day or two after he had signed the document to inform
him that
she was no longer willing to sell her maize to OVK.
Considering that evidence Van der Merwe J held that the offer had
therefore been
withdrawn before acceptance and dismissed OVK’s
claim with costs. The judgment of the court below is reported as
Oos-Vrystaat Kaap Bedryf Bpk v Van Aswegen
2005 (4) SA 417
(O). Leave to appeal to this court was granted by Van der Merwe
J.
[13] Ordinarily an offer may be revoked at any time
before acceptance. In my view the court below was correct in its
conclusion that
the clause in question did not constitute an
irrevocable offer and meant no more than that the offer could be
accepted within the
14 day period. It is clear that the purpose of
the 14 day period during which the offer may be accepted is to
provide OVK with an
opportunity at head office to scrutinise the
document and to arrive at a considered decision concerning the
purchase of the maize
in question. The clause itself envisages that
the document will be of
no
force and effect unless signed by
both parties within the 14-day period. Nowhere does it state that the
seller is bound by the offer
until the expiry of that period. In
other words, the clause does not expressly state that the seller has
bound himself not to revoke
the offer within that period, nor can
such an obligation be implied.
[14] In light of this conclusion, it is not necessary
to deal with the interesting discussion in R H Christie
The Law of
Contract
4
ed pp 58-59 about whether a unilateral
declaration of irrevocability has to be accepted before it becomes
binding. The court below
discussed that issue (at 425E-426H) and took
a contrary view to that taken by Professor Christie. In this regard,
Van der Merwe
J stated the following (at 427E-F):
‘
My bogemelde gevolgtrekking lei in ieder geval tot
die gevolgtrekking dat daar nie ‘n eensydige verklaring namens
verweerderes gemaak
is dat die aanbod om te verkoop nie herroep sal
word nie en kon selfs op daardie basis nie ‘n verpligting onstaan
het om die aanbod
om te verkoop oop te hou nie. Selfs ook op die
basis dat ‘n aanbod om die aanbod om te verkoop nie terug te trek
nie, gemaak is,
is daar in hierdie saak geen getuienis waarop bevind
kan word dat aanvaarding van daardie aanbod aan die verweerderes of
haar gevolmagtigde
gekommunikeer is nie, ten minste nie tydig nie.’
[15] As stated earlier it is for present purposes not
necessary to explore the matter beyond the first issue identified by
the learned
judge in the passage quoted in the preceding paragraph.
The court below cannot be faulted in its conclusion on that issue and
that
conclusion is determinative of the appeal.
[16] It was submitted on behalf of Van Aswegen that in
the event of the appeal being dismissed she was entitled to the costs
of two
counsel. This case turns on a narrow issue of no complexity
and she is thus not entitled to the costs of two counsel.
[17] The appeal is dismissed with costs.
_________________
M S NAVSA
JUDGE OF APPEAL
CONCUR:
SCOTT JA
STREICHER JA