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[2013] ZAGPPHC 228
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Tekenpraktyk CC v Erf 2720 Tzaneen (Pty) Ltd (20648/2012) [2013] ZAGPPHC 228 (2 August 2013)
NOT REPORTABLE
IN THE NORTH GAUTENG HIGH COURT.
PRETORIA (REPUBLIC OF SOUTH AFRICA)
CASE NO: 20648/2012
DATE: 02 August 2013
IN THE MATTER BETWEEN
TEKENPRAKTYK
CC
......................................................................................
PLAINTIFF
AND
ERF 2720 TZANEEN (PTY)
LTD
....................................................................
DEFENDANT
JUDGMENT
KOLLAPEN J
1) The plaintiff has issued summons
against the defendant in which it seeks payment of the sum of R 500
000-00 being commission
it alleges it is entitled to arising out of
an oral mandate given to it by the defendant.
2) The plaintiff contends that it was
the effective cause of the sale of Erf 2270 Tzaneen (the erf) by the
defendant to Rapicorp
155 (Pty) Ltd (Rapicorp) and that it is
entitled to payment of R 500 000-00 following the sale of the
property for R 50 000-00.
3) The stance of the defendant was to
deny that the plaintiff was the effective cause of the sale and while
it admitted the sale,
its position was that the defendant and
Rapicorp concluded the sale without the plaintiff being the effective
cause thereof.
4) The plaintiff called Mr Petrus
Johannes Human to testify in its case while the defendant called Mr
Wiebe Hendrik van der Laan,
Mr Tienie Kalan and Mr Liversage.
5) Mr Human’s testimony was that
he was the sole member of the plaintiff, which conducted the business
of an estate agency
and that during the period 2009 / 2010 the
defendant represented by van der Laan, gave him an oral mandate to
sell an industrial
property of the defendant known as Erf 2270
Tzaneen. The defendant’s terms was that it wished to receive a
net amount of
R 5 million in respect of the property and would only
be willing to sell on that condition.
6) He testified that during February
2011, Mr Kalan with whom he had done business before, called him
about purchasing a property
close to where his current business was
situated. Human thought that the property of van der Laan was
something that could be of
interest to Kalan. Human then called van
der Laan and arranged a meeting between Kalan and van der Laan at the
property in question
at which meeting Human was present.
7) At the meeting, van der Laan
confirmed that he was looking for a net amount of R 5 million and
Human then advised Kalan that
the asking price was R 5,5 million as
he anticipated his commission would be R 500 000-00. There was some
uncertainty in his testimony
as to whether there was an express
agreement with van der Laan in respect of commission.
8) What appears to have occurred
according to Human was that given that van der Laan wanted a net
return of R 5 million, Human would
attempt to sell the property
ideally for R 5,5 million in order to earn a commission of R 500
000-00 but if the sale was concluded
for less than R5,5 million the
commission would in effect be the difference between R 5 million and
the selling price. If the sale
was in excess of R 5,5 million then
Human would negotiate an appropriate commission with van der Laan.
9) Following the meeting on the
property Kalan intimated that the asking price was too high and asked
whether the price was negotiable
to which Human replied in the
affirmative. Kalan then indicated that he w'ould discuss it with 'his
bosses' and took van der Laan’s
telephone number with the
permission of Human.
10) According to Human he then
cautioned van der Laan that if the latter did a deal with Kalan
without Human's involvement, he would
sue van der Laan for
commission. 'The reason for this was that he had dealt with Kalan
previously and on such occasion Kalan had
gone directly to the seller
to conclude a sale creating difficulties with regard to his
entitlement to commission and which resulted
in him having to
ultimately accept commission lower than that which he was entitled
to.
11) He heard no further from Kalan and
made no follow-up himself. He later received news that the property
had been sold by the
defendant to a company that Kalan represented
and when he confronted van der Laan about this the latter's response
was that he
was instructed by his attorneys to act in the manner in
which he did (i e to contract directly with the defendant). He was of
the
view' that his introduction of Kalan to van der Laan and the
meeting held on the erf was the effective cause of the sale.
12) He conceded that at no stage did
he inform van der Laan that he was acting on behalf of the plaintiff.
13)The version of the defendant was
that van der Laan had met Ka!an late in 2009 to discuss the problem
of a fence wall on the former's
property which adjoined the property
of Kalan. They went to the site in order to inspect the fence and
Kalan then expressed interest
in purchasing the erf in question to
which van der Laan responded that he would consider an offer of R 5
million.
14)Nothing further happened until
February 2011 when Human came to Kalan’s place of business and
Kalan then asked whether
Human had the telephone details of van der
Laan as he (Kalan) was interested in discussing a property wfith him.
Human replied
he would see what he could do. Human then contacted van
der Laan and arranged a meeting at the erf at w’hich meeting
van
der Laan and Kalan then realized that they knew each other from
the contact they had in late 2009. There was some discussion on
the
possible sale of the erf on the day and Kalan said he will speak to
his ‘bosses’. Nothing further transpired.
15)Later that year Kalan and Mr
Liversage, a mealie meal agent who worked closely with Mr Kalan,
spoke about the need to find larger
premises for the business they
were involved in and Kalan mentioned van der Laan’s name as a
possible party to approach.
Liversage was able to secure van der
Laan’s contact details from a third party, made contact with
van der Laan and was shown
three different properties.
16) Liversage was however interested
in Erf 2270 but was unable to do the deal himself as it was beyond
his financial means. He
then advised van der Laan about the
introduction of a possible partner and a meeting was then arranged
between Liversage, Kalan
and van der Laan which then led to Kalan and
van der Laan concluding the agreement for the sale of the erf.
According to the evidence
of van der Laan, he denied giving Human any
mandate and while he knew him, the first time they spoke about the
property in question
was on the 12th of February 2011. Kalan in his
evidence denied that he asked Human about acquiring the erf. His only
request was
for Human to provide him with van der Laan's telephone
number and while he told Human it was in connection with a property,
he
did not give Human any details about the proposed property.
Analysis
17)The two issues in dispute and for
determination are:
a) The locus standi of the plainti ff;
b) Was Human the effective cause of
the sale?; and
c) If I Iuman was the effective cause
of the sale, then what was the agreement regarding the payment of
commission, and if there
was no express agreement, was the plaintiff
entitled to any commission and if so, how was it to be determined?
Locus standi
18) Leaving aside the question of
whether or not the defendant was the effective cause of the sale, the
evidence led and which was
not in dispute is that w'hile Human is the
sole and principal member of the defendant close corporation, he
never disclosed to
van der Laan that he was acting in that capacity.
19) On this aspect and while it is not
in dispute that Human arranged the meeting
in between van der Laan and Kalan on
the 15 February 2011, it appears that Human and van der Laan, even
though both in these proceedings
represent corporate entities,
engaged one another on the basis of their personal knowledge of each
other and while the corporate
capacity of these parties was not
disclosed, there appears to have been an acceptance that the form of
that entity would hardly
be an issue, van der Laan when he was
contacted by Human regarding the meeting, did not tell Human the
owner of the property was
the defendant and that his presence at the
meeting was in that capacity. Human it would appear acted likewise
and in the small
town style of how business was done - informally and
on a handshake, I am not inclined to uphold the challenge of the
defendant
on this basis alone. In any event, Human appears to be the
driving force and only member of the plaintiff and his identity is
interwoven
into that of the plaintiff.
In
any event, the non-disclosure by Human that he was acting at the
time on behalf of the plaintiff is not fatal in my view. Human’s
evidence was that at the time he received the mandate from van der
Laan, he was acting on behalf of the plaintiff. His failure
to
disclose this to van der Laan does not objectively alter the
situation that at the time he was representing the plaintiff.
That
evidence does not have the effect of varying the contract the
plainti ff relies on. What it does is that it simply informs
the
Court that some other person (the plaintiff in this instance) is
entitled to the rights flowing from the contract. (See COOKE
v
ALDRED 1909 vol 1 150 at page 151).
Was the plaintiff the effective cause
of the sale?
21)
While it is not in dispute that Human arranged the meeting between
van der Laan and Kalan on the 15th of February 2011, what
is in
dispute is whether in doing so he simply brought together parties who
were known to each other and had previously been negotiating
around
the same erf, under circumstances where he was not specifically
requested to do more than to provide Kalan with a telephone
number.
In addition the events after the 15th of February 2011 and the role
of Liversage are also relevant in this regard.
22) On this aspect there are two
conflicting versions that emerge from the evidence led in the trial.
23) When a court is faced with two
diametrically opposed versions then the approach it has to follow was
succinctly described in
STELLENBOSCH FARMERS’ WINERY GROUP LTD
and ANOTHER v MARTELL ET CIE and OTHERS
2003 (1) SA 11
(SCA). What is
required is for the Court to make findings on: (a) the credibility of
the various factual witnesses; (b) their reliability;
and (c) the
probabilities.
24) With regard to the credibility and
reliability of the various witnesses both counsel were in agreement
that not much by way
of criticism could be leveled against the
witnesses on these aspects. They came across as honest, testified to
the issues openly,
frankly and without bias. I concur with the views
of counsel in this regard. That being said once must then examine the
probabilities.
25) On the defendant’s version,
van der Laan’s case is that he gave no oral mandate to Human
nor did he ever discuss
the possible sale of the erf with Human,
until Human called him on the 12th of February 2011 to arrange the
meeting for the 15th
of February 2011. At the same time Kalan’s
evidence was that all he requested of Human was a telephone number
for van der
Laan and while he told Human it was in connection with a
property, he provided no further details to Human.
26) Given that it is common cause that
Human then proceeded to arrange a meeting between van der Laan and
Kalan concerning the erf
in question and indeed on the erf, when none
of them told him about the particular erf or sought his assistance,
must raise the
question as to how Human would have known of Kalan’s
interest in acquiring the particular erf and van der Laans’s
willingness
to sell it.
27) In my view it is highly improbable
that Human purely on the limited information that Kalan was
interested in some property that
van der Laan owrned, would be able
to bring the parties together for a meeting at the very erf Kalan had
in mind and van der Laan
was willing to sell.
28) In my view the meeting would have
only been possible if Human was aware that both Kalan and van der
Laan had the interest in
buying and selling erf 2270 respectively.
For that to happen Human would have to receive that information from
someone and the
only parties who could have provided that information
were Kaian and van der Laan.
29) In my view the probabilities
militate against the version of the defendant in this regard and
overwhelmingly favour the plaintiffs
version in how he was able to
bring the parties together and the role he played in effecting the
sale.
30) That being the case I am satisfied
that whatever discussions van der Laan and Kalan had in late 2009
regarding the erf were
hardly significant or substantive. There was
no inspection of the erf, no telephone numbers were exchanged and the
discussion at
best was the expression of an interest which went no
further.
31) Thus some 16 months later when the
events of February 2011 unfolded, it was certainly not a continuation
of the November 2009
discussion and in my view it constituted a fresh
introduction of the parties on the site of the erf with a view to
concluding a
sale.
32) The finalization of the sale in
November 2011 was directly linked to the February 2011 meeting and
discussion and I conclude
this for the following reasons:
a) Liversage’s initial approach
to Van der Laan was with a view to securing the property for himself;
b) As the price was too high for him
he introduced the idea of a partner (but which for all practical
purposes was another party),
namely Kalan;
c) Kalan then met van der Laan and the
deal was concluded. Kalan did not see the property again after the
February meeting. His
knowledge of the property was derived solely
from the February 2011 meeting which Human was instrumental in
arranging.
33) I am accordingly satisfied that
Human was the eventual cause of the sale and that neither the
November 2009 discussion between
van der Laan and Kalan nor the
intervention of Liversage, his initial
interest in the erf and his facilitating the meeting between van der
Laan and Kalan in November
2011, constituted the eventual cause of
the sale.
The commission payable
34)
The arrangements for the payment of commission on the 15th February
2011 were quite loose. Human's view was that if he sold
the property
for R 5,5 million, he would be entitled to R 500 000 as commission
but if the property was sold for any other amount,
then the
commission payable would be discussed with van der Laan. Given that
van der Laan insisted on securing a net return of
R 5 million, it
would appear that if the property was sold for an amount above R 5
million but less than R 5.5 million, the commission
would represent
the difference between the selling price and R 5 million. The
evidence of Human was not clear in this regard and
the dominant
impression that was created was that the mandate was that van der
Laan wanted R 5 million, while the amount
of the
commission that Human would earn was not discussed at all or
sufficiently so.
35) It is common cause that the erf
was sold for R5 million. It is not clear whether if Human continued
to remain actively involved
until the conclusion of the sale, and
if
allowance had to be made for his commission, whether Kalan would have
paid more than R 5 million or if van der Laan would have
been willing
to accept less than R 5 million.
36) On the other hand he was excluded
and given that he was the eventual cause of the sale, he would
ordinarily have been entitled
to commission.
37)The difficulty is that the
plaintiff has not pleaded any basis for the payment of commission
other than that it was to be R 500
000-00 which could only be so if
the sale was for R 5.5 million. Mr Visser suggested that in these
circumstances the customary,
prescribed or prevailing rate of
commission could be used as a benchmark to determine the amount of
the commission payable to the
plaintiff but when confronted by the
absence of any evidence led in this regard suggested that the Court
could, if it was so inclined
and after making a finding in favour of
the plaintiffs right to commission, allow the plaintiff the
opportunity to lead evidence
with regard to the customary, prescribed
or prevailing rate.
38) The difficulty with the
suggestion, apart from the impracticality arising out of dealing with
the matter on a piecemeal basis,
is that the pleadings as they stand
do not provide for a basis for the reception of such evidence. It has
never been the case for
the plaintiff that it was entitled to the
customary, prescribed or prevailing rate of commission and any
attempt to lead evidence
on such a rate would have been destined to
fail.
39)In the circumstances there is no
basis on which the plaintiff can succeed. Notwithstanding my
conclusion that it was the eventual
cause of the sale of the erf, the
basis of its entitlement to commission and the manner in which such
commission was to be calculated
is ominously lacking in the manner in
which the plaintiff has prosecuted its claim.
40)The plaintiff has accordingly
failed to discharge the evidentiary burden it has and in the
circumstances its claim must fail.
Order
I accordingly make the following
order:
The plaintiffs claim is dismissed with
costs.
N KOLLAPEN
JUDGE OF THE NORTH GAUTENG HIGH COURT
20648-2012
HEARD ON: 07 JUNE 2013
FOR THE PLAINTIFF: ADV S A VISSER
INSTRUCTED BY: STEWART MARITZ BASSON
1NG
FOR THE DEFENDANT: ADV A ELS
INSTRUCTED BY: THOMAS & SWANEPOEL
INC