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[2013] ZAGPPHC 254
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Potgieter v Sasol chemiese Nywerhede Beperk (A787/12) [2013] ZAGPPHC 254 (16 August 2013)
REPORTABLE
IN
THE HIGH COURT OF SOUTH AFRICA (NORTH GAUTENG, PRETORIA)
CASE
NUMBER: A787/12
DATE:16/08/2013
In
the matter between:
FERDINAND
POTGIETER
.............................................................................................
APPELLANT
(Defendant
a quo)
AND
SASOL
CHEMIESE NYWERHEDE
BEPERK
.............................................................
RESPONDENT
(Plaintiff
a quo)
RESERVED
JUDGMENT
LAMPRECHT.
AJ Introduction
[1]
This is a civil appeal emanating from the Magistrate's Court,
District of Barberton, Senior Magistrate JG Liebenberg presiding.
Plaintiff in the court a quo (now respondent), SASOL Chemiese
Nywerhede Beperk (SASOL), obtained judgment against defendant (now
appellant), Ferdinand Potgieter (Potgieter), in the amount of R85,
387.41 plus interest, as well as costs. Potgieter now seeks
to have
the a quo judgment overturned on appeal.
Common
cause facts and cause of action
[2]
Harmonie Boere Edms Bpk (Harmonie) is a company that inter alia
specializes in the provisioning of agricultural fertilizer products
to farmers in the Lowveld area of Mpumalanga. It has an agency
agreement with SASOL to, as its agent, order and obtain fertilizer
products from SASOL to be provided to farmers and farming operations
at their insistence. In the instance that specific mixes of
fertilizer were required, Harmonie would acquire the different
fertilizer products from SASOL and, still acting in terms of its
mandate, mix the products before supplying them to the relevant
farmers. Potgieter is one such farmer, who, for many years, has
been
ordering and buying SASOL fertilizer through Harmonie.
1
[3]
At first, farmers who ordered and bought their SASOL fertilizer
through Harmonie could exercise one of the following options,
namely:
(a)
They could order and buy their fertilizer in cash (at a certain
discount, of course); or
(b)
They could order and buy their fertilizer on credit, in which case
the terms of credit (price, interest and payments) could
be financed
through any of three parties with whom the farmer held an account,
namely:
(i)
Harmonie;
(ii)
SASOL; or
(iii)
The local Agricultural Co-operation.
2
[4]
When the fertilizer was bought on account through the local
Co-operation, SASOL awarded a percentage of the price of the goods
to
the Co-operation for the administrative risk incurred to finance the
farmer.
3
When Harmonie financed the farmer, SASOL awarded an extra three (3)
percent of the commission entitled to Harmonie as agent, to
Harmonie
to cover their administrative risk involved in financing the farmer.
4
[5]
Regardless of the method used, all fertilizer products were however
ordered and bought through Harmonie, as SASOL's agent, and
Harmonie
employed various marketing agents to solicit farmers into buying the
products supplied by SASOL. In addition, all stationery
used by
Harmonie, namely, orders, delivery notes and invoices bore a stamp or
some other indication that it operated as SASOL's
agent - e.g.,
"HARMONIE BOERE -
AGENT
VIR SASOL KUNSMIS".
5
[6]
In the beginning of the year 2000, Harmonie started to encounter
cash-flow problems due to farmers having owed it more than
R1,000,000.00 on their accounts, many of them fell in arrears with
their payments; and, the risk for its continued financing fertilizer
bought on account became too great for Harmonie to handle.
6
(Incidentally, almost certainly owing to his personal friendship with
the Executive Director of Harmonie, Mr Douw Steyn,
7
Potgieter was one of those farmers that did not regularly and
constantly pay their accounts with Harmonie,
8
which contributed to Harmonie's cash-flow problems. Harmonie however
never took action against him in this regard.) This state
of affairs
resulted in Harmonie agreeing with its principal, SASOL, during the
year 2000 that, in future, Harmonie will no longer
provide a credit
facility to farmers buying fertilizer through its agency. The
accounts of all the farmers that used Harmonie to
finance their
fertilizer products were then closed in September 2000
9
so that they could no longer acquire fertilizer through Harmonie with
the latter as their financier. Thus, from there on, farmers
could
only order and buy fertilizer from SASOL through Harmonie's agency by
paying cash or by financing their credit through either
the
Co-operation or on direct credit account with SASOL. On strength of
Harmonie’s assurances that they have good credit
records, SASOL
agreed to take over the accounts of most of the farmers, including
Potgieter, without requiring that new credit
agreements with SASOL be
completed and vetted.
10
[7]
This is where SASOL's cause of action arose. According to the simple
summons issued by SASOL against Potgieter,
11
the pleadings
12
of
and the evidence
13
for SASOL in the court a quo, Potgieter paid for only one delivery of
fertilizer invoiced after Harmonie ceased the practice of
financing
deferred payment by farmers; and, after Potgieter's credit was
extended by SASOL directly. This delivery was effected
by SASOL
(through Harmonie as its agent, in trucks bearing SASOL's logo) after
having been ordered by Potgieter and, SASOL invoiced
Potgieter
directly for payment. In terms of the changed mandate of the agent,
Harmonie still managed the marketing and all orders
of fertilizer and
delivery thereof on behalf of its principal against payment of
commission, but no longer extended credit to the
farmers. It was thus
expected from debtors to pay their dues to SASOL directly, who took
over the extension of credit. As was customary
in the past, however,
this cheque payment by Potgieter (as were those of a few other
farmers in the same position) was again made
to Harmonie instead of
directly to SASOL. The payments that were wrongly made to Harmonie
were therefore received into a trust
account, after which Harmonie
paid the monies over to SASOL.
14
According to the undisputed evidence of one of the witnesses for
SASOL, the Administrative Head, Mr DA Scholtz, he then personally
phoned every farmer involved in these erroneous payments, impliedly
also Potgieter, and informed or, at least, reminded them of
the
change in affairs.
15
[8]
Thereafter, however, Potgieter continued ordering SASOL's fertilizer
products through, and receiving delivery thereof from Harmonie
as
SASOL's agent; but, although he was invoiced directly by SASOL, he
either neglected or refused to pay the accounts invoiced
to him,
resulting in his having fallen in arrears with an amount of R85,
387.41 from the 19th of December 2000 to 31 January 2002.
He did not
pay (or offer to pay) either SASOL directly or, even Harmonie (as he
did with the first payment after Harmonie's mandate
as agent was
changed).
16
SASOL therefore sued POTGIETER in the court a quo for payment of said
account as well as interest and costs of action as was apparently
contractually agreed upon. After having considered the evidence of
three witnesses on behalf of SASOL (Potgieter did not testify
nor
present any evidence) and legal arguments by the representatives of
the parties, the court a quo upheld SASOL's claim and awarded
judgment in its favour for payment of R85, 387.41 plus interest on
that amount calculated at 20% per annum from 1 February 2002
and, at
24% per annum from 12 July 2002, as well as costs on the scale of
attorney-and-client.
The
issues in dispute: pleadings in the court a quo
[9]
Potgieter, very belatedly, amended his plea to indicate a new
defence, inter alia challenging the locus standi of SASOL after
first
admitting same. The end result was that the issues between the
parties became blurred and obscured rather than clarified
as required
in terms of the function and purpose of pleadings in civil
proceedings based on summons.
17
The way that he conducted his defence in the court a quo does not
evidence the openness and candour that one would expect from
an
honest bona fide businessman and good personal friend of one of
SASOL's witnesses, Mr Douw Steyn.
[10]
First, after having requested and received further particulars to the
claim, he pleaded that he admits that the fertilizer
products have
been delivered to him as alleged by SASOL, but that he denies that he
owes any payment in respect thereof to SASOL
because, more
specifically, he had already paid the full amount owing to SASOL's
agent.
18
Although he did not mention the agent (probably Harmonie) by name in
his initial plea, it was clear from this plea that he acknowledged
that there exists an agency agreement between SASOL and an agent, and
that he was indebted to SASOL, through its agent, to pay
for SASOL
fertilizer products ordered by and delivered to him; but, so he
pleaded, his account with SASOL has been paid in full.
In addition,
in his further particulars to plea as requested by SASOL, Potgieter
more specifically averred that he made the payments
as per his
defence plea to "Harmonie Boere, agent van die eisei1' and, to
boot, appended a number of cheques that were made
payable to Harmonie
in order to make out his case that he has paid all that is due,
including the amount that SASOL sued him for.
This is in fact what
Potgieter already averred under oath in his opposing affidavit to
ward off summary judgment as requested by
SASOL.
19
In paragraph 3 of his opposing affidavit, he says that he became
aware that some or other business relationship exists between
SASOL
and Harmonie, in terms of which Harmonie sells SASOL's fertilizer
products on behalf of SASOL, which SASOL then delivers
to the farmers
who bought them. Although SASOL did not in its summons specifically
allege that it sold and delivered the fertilizer
products to
Potgieter through agency of Harmonie, Potgieter in his initial
pleadings neither challenged
20
nor specifically denied
21
the locus standi of SASOL to sue him for "kunsmis produkte
verkoop en gelewer deur eiser a an die verweerder op laasgenoemde
se
spesiafe aandrang en versoekJ’.
22
To the contrary, this plea indicated that Potgieter was well aware of
the agency agreement between SASOL and Harmonie and that
he continued
doing business with Harmonie after becoming aware of the situation
23
[11]
The defence plea appeared to be relatively simple and innocuous, so
that the dispute would in the end only be whether Potgieter
had in
fact paid all that is due; and, if so, whether Harmonie has failed to
pay the principal's (SASOL's) due after it received
payment from
Potgieter - a simple dispute of fact, not law. All of this however
changed when, at a very late stage, apparently
when the matter was
already trial ready, Potgieter lodged an application in terms of Rule
55A of the Magistrate's Court Rules to
amend his plea in the
following terms:
"1.
AD
PARAGRAWE 1 EN 2 (AD PARAGRAAF 1 VAN DIE EISER SE
BESONDERHEDE)DAARVAN:
Deur
die geheel van hierdie paragrawe deur te haal en te skrap en om dit
met die volgende paragrawe te vervang:
’
1.
AD DIE EISERSE SITASIE:
Die
verweerder neem kennis dat die Eiser Sasol Chemiese Nywerhede Bpk is.
Die Verweerder dra egter nie kennis van die eiser se locus
standi
en/of regspersoonlikheid nie, kan dit gevolglik nie erken of ontken
nie en word Eiser tot bewys daarvan geplaas.
2.
AD DIE VERWEERDER SE SITASIE:
Die
Verweerder erken dat hy Ferdinand Potgieter is. Die Verweerder pleit
spesifiek dat hy te die plaas Richtershoek, Malelane, distrik
Barberton boer.
3.
AD EISOORSAAK:
Die
Verweerder ontken dat:
3.1
hy enige kunsmisprodukte by die Eiser gekoop en/of bestel het;
3.2
daar enige nexus tussen horn en die Eiser is en/of was; en,
3.3
hy die bedrag van R85, 387.41, of enige gedeette daarvan, aan die
Eiser verskuidig is.
4.
Die
Verweerder pleit spesifiek dat:
4.1
hy te alle relevante tye kunsmisprodukte by Harmony (sic) Boere
bestel het;
4.2
Harmony (sic) Boere hom gefaktureer het vir al die kunsmisprodukte
wat hy van eersgenoemde beste! het, op sterkte waarvan hy
betalings
aan Harmony (sic) Boere gemaak het; en
4.3
hy geen geld aan Harmony (sic) Boere verskuldig is vir enige
kunsmisprodukte wat hy by laasgenoemde gekoop en/of bestel het
nie.
5.
AD
JUR1SDIKS1E:
Die
geheel van die skuldoorsaak het binne die jurisdiksiegebied van
hierdie Agbare Hof ontstaan."
[12]
Despite SASOL's objection to the amendment applied for on grounds of,
inter alia, that it represents a complete turnabout on
the defence
first pleaded; that it is vague and difficult to comprehend and
traverse; that it now brings about a situation where
both the onus to
begin and the onus to prove its case would rest on the Plaintiff
rather than on the Defendant as was the case
under the previous
pleadings; and, because it was brought at such a late stage of the
proceedings, the court a quo, for reasons
that are difficult to
grasp, allowed the amendment. It however sought to ameliorate the
disadvantaged position of Plaintiff (SASOL)
by granting a
postponement to prepare for trial on basis of the new defence and by
awarding punitive costs against Potgieter on
an attorney- and-client
scale.
24
[13]
The amended plea, more particularly lacked clarity on the issue
whether Potgieter was still admitting that Harmonie was at
all
relevant times acting as agent for SASOL or whether he now
specifically wanted to join issue with that possible averment of
the
Plaintiff when the matter goes to trial. There is nothing in the
amended plea to suggest that he now specifically denies any
probable
averment that an agency agreement existed between Harmonie (as the
agent) and SASOL (as the principal), except for a vague
plea on
citation that he is unsure of Plaintiffs locus standi and its
juristic personality and that he requires plaintiff to prove
same;
25
and, a vague assertion that there exists no "nexus" (or
'business relationship') between him and Plaintiff in terms of
which
he is contractually liable for payment to Plaintiff of the sum that
he is being sued for.
26
The implied denial through refusal to admit or deny due to lack of
knowledge
27
in the amended plea of SASOL’s locus standi, however now
indicated that SASOL had to specifically allege and prove its locus
standi
28
Nevertheless, he then specifically pleads that, at all relevant times
ordered fertilizer products from Harmonie, that Harmonie
invoiced him
for all the fertilizer products delivered, on strength of which he
made payments directly to Harmonie and that he
does not owe Harmonie
any money for any of the fertilizer products that he bought and/or
ordered from Harmonie. This suggests that,
should SASOL succeed in
proving its personality and locus standi, and the nexus between SASOL
and Potgieter on which Potgieter
can be held liable in terms of
contract and the law of agency, he is reviving his initial plea that
he paid for all fertilizer
products that he has ordered and received.
However, still riding on the assumption that his amended plea places
the existence of
an agency relationship in dispute, he then adds to
this specific plea that he does not owe Harmonie (not SASOL)
anything, thereby
implying that, if anything, Harmonie is liable to
SASOL, not him. This convoluted amended plea left one confused as to
what the
plaintiff now had to do in order for it to prove its case.
[14]
Nevertheless, sensing that Potgieter has now made a complete
turnabout with regards to its locus standi in refusing to either
admit or deny same, SASOL subsequently replied to the amended plea by
specifically pleading that Harmonie was at all relevant times
the
mandated agent of SASOL.
[15]
It initially concerned us that SASOL did not particularly allege in
the summons already that it was relying on an agency agreement
between itself and Harmonie to found its locus standi, because, in
motion proceedings in the High Courts, it is regarded as trite
law
that locus standi must particularly be alleged and established in the
founding affidavits, and not in replication
29
We confronted Mr Pretorius for SASOL in this regard, and he responded
by arguing that it was not necessary for plaintiff in the
a quo
proceedings to specifically and particularly allege in its simple
summons (which is not akin to application or motion proceedings
where
'evidence' is already tendered in the founding affidavit accompanying
the Notice of Motion) that it would rely on an agency
relationship to
establish and prove its standing. According to him, it was enough to
allege that the goods were sold and delivered
by SASOL to Potgieter
at his insistence. He further based his argument on the fact that
Potgieter in any event then pleaded that
he knew about the agency
relationship and particularly alleged that he paid everything he owed
SASOL to the agent, Harmonie; and,
that it was only after amendment
of the plea that SASOL became aware of the fact that its locus standi
as a result of agency might
be in dispute. He argued that SASOL was
therefore within its rights to allege agency only in replication,
with an amended plea
responding to the amended plea of the Defendant.
[16]
In this regard, and taking into account the fact that the
Magistrates' Courts Rules at the time of action in the court a quo
30
did not, like the High Courts’ Uniform Rules, require specific
particularity of allegations of locus standi in summonses,
I
subsequently considered the judgment of Liquidators Wapejo Shipping
Co Ltd v Lurie Bros,
31
and other reported case law, from which I established.
32
(a)
That Rule 6(1 )(a) of the Magistrates' Courts Rules (before
amendment) requires only that 'particulars of claim’ shall
be
endorsed on the summons and does not in specific terms require a
cause of action to be set out in specific particularity. In
any
event, Rule 17(2)(a) expressly permits a defendant to except a
summons on the grounds that 'it does not disclose a cause of
action’;
and, Rule 19(12) permits a defendant to enter a special plea of non
iocus standi in judicio and may require that
its outcome be
determined before the trial on the merits commences.
(b)
That the phrase 'cause of action1 means 'every fact which is material
to be proved in order to entitle the plaintiff to succeed,
i.e., the
facta probanda, but not the facta probantia
33
(c)
The particulars endorsed on the summons need not disclose the cause
of action with the completeness of detail which would be
required in
a High Court, but they must disclose it with reasonable distinctness
so that the defendant may know the case he has
to meet.
34
If it is not so disclosed, the summons is excipiable as disclosing no
cause of action.
35
"The
rules of the magistrates' courts require, as a minimum, that the
claim should be set out in such a way that the liability
of the
defendant, at least in principle, follows as a necessary consequence
from the allegations expressly set out or necessarily
implied in the
particulars of claim ... It does not seem to me that the rules of the
magistrates' courts as they presently exist,
though they have
undoubtedly relaxed many of the requirements with which it was
formerly necessary for a plaintiff to comply in
the setting out of
his claim, have gone so far as to relieve him from setting it out in
such a way that, when read by itself, it
leads to the necessary
conclusion that, if the allegations in it are established, the
defendant is liable to the plaintiff, at
least in principle."
36
(d) Where justified, legitimate inferences can be drawn as to the
meaning of the particulars and by implication the necessary averments
can be supplied where required in requests for further particulars
and even in replication or during evidence.
37
The Court (either a quo or on appeal) should endeavour to took
benevolently instead of over-critically to a pleading, more
especially
at a pleading in a magistrates' court. That does however
not mean that such benevolence should be pushed to the length of
upholding
a summons, which as it stands discloses no cause of action,
by altering its language, by reading into it what is not there, and
ignoring
what is, and by thus making for the plaintiff a cause of action which
he has not himself put up.
38
A summons that does not, at least prima facie, disclose a cause of
action is excipiable or, at least would fail to stand up against
a
special plea that no cause of action is being disclosed therein.
(e)
The cause of action in the summons must, however, appear with
reasonable distinctness, so that the defendant may know the case
he
has to meet. If it is so imperfectly stated as to embarrass a
defendant, then exception may be taken to the summons as being
vague
and embarrassing.
39
(f)
Where the particulars of claim contain sufficient information to
convey to the defendant the case which he has to meet, but
are
lacking in some information which defendant genuinely requires before
proceeding further, the matter becomes one for requesting
further
particulars to claim
40
[17]
Thus, in actions based on summons (as opposed to application or
motion proceedings based on founding affidavits) in the magistrates'
courts, iocus standi need appear only prima facie from the
particulars of claim and, if standing is objected to by means of
exception
or by special plea, courts will tend to remedy failures by
plaintiffs to properly allege iocus standi in particular much more
easily
than would the High Courts in either motion proceedings or
action based on summons. For example, where in Nienaberv Union
Government
41
the summons did not contain the requisite allegation of locus standi
of the Government as it ought to have; and, where Nienaber
did not
take advantage of this 'manifest defect1 in the summons by means of
exceptio or special plea, the trial was allowed to
continue
regardless to see whether evidence would establish Government's
standing. (The Supreme Court, as it then was, did not
intervene on
this ground.) Furthermore, even though the evidence did not establish
locus standi, when absolution of the instance
was applied for, the
magistrate did not grant absolution but allowed the Government to
re-open its case. This was also not regarded
as a misdirection. The
Court on appeal remarked as follows:
"Thereupon
the magistrate, although plaintiffs case had been closed, and after
hearing the argument of the defendant's attorney,
who exposed the
deficiencies in the plaintiffs case, permitted the case to be
reopened, and gave the plaintiff a second bite at
the cherry by
allowing him to lead further evidence now that he knew where the shoe
pinched. In doing this, the magistrate was
unduly lenient to the
plaintiff, but that was in his discretion, and no complaint is now
made of it."
42
[18]
Moreover, it is by no means settled that, even in strict application
or motion proceedings before the High Courts, a failure
of an
applicant (as opposed to a plaintiff in action based on summons) to
properly allege locus standi in the founding documents
cannot
retrospectively be cured or remedied in the applicant’s
replying affidavits
43
Therefore, it often happens, even in those cases that advocate the
triteness of the requirement that standing must be fully alleged
and
established in the founding papers
44
that courts are prepared to extensively interpret the allegations in
the founding papers (or to infer from them) that locus standi
has
been sufficiently alleged (at least on a prima facie basis) and, on
argument, to hold that the relevant applicants had proper
legal
standing to bring the matters to court.
[19]
These observations fortify my prima facie observation above
45
that, at least in principle, the initial cause of action in the
summons issued in the court a quo, sufficiently disclosed SASOL's
standing to sue Potgieter for fertilizer products sold and supplied
to the latter at his special request and insistence, so as
to
properly inform Potgieter as to what case he had to meet. It was not
necessary for SASOL to, at that stage, specifically and
with
particularity allege that Harmonie at all relevant times acted as its
agent. As indicated, Potgieter did not take exception
in this regard;
neither did he enter a special plea of non locus standi in judicio,
which is the way he should have proceeded if
he wanted to challenge
SASOL's prima facie locus standi. In fact, he admitted agency as
basis for SASOL's locus standi, at least
until he amended his plea as
indicated above. After he amended his plea, still not challenging
SASOL's locus standi in the true
sense of the word, but rather
indicating that he was unable to admit or deny same, SASOL did
exactly what was legally required
of it.
46
SASOL specifically alleged that Harmonie, at all relevant times acted
as its agent in the provisioning of its fertilizer products
to the
Potgieter; and, as will be indicated in more detail below, it also
presented evidence to prove the existence of the agency
relationship
that it had with Harmonie, and Harmonie's mandate.
[20]
One further thing on the amended plea pertaining to locus standi
needs to be dealt with. A defendant or respondent who chooses
to
place in dispute that the plaintiff or applicant lacks standing, must
do so in clear and unambiguous terms. Thus, where proper
authority to
sue is not directly questioned (for example, where a bare denial of
authority is raised or where it is neither admitted
nor denied) and
where surrounding circumstances clearly or at least, prima facie,
confirm the existence of authority to sue, the
minimum formal
evidence is required to establish same
47
[21]
The reason for this state of affairs is not very hard to see. Just
like it can be expected from a plaintiff to make its case
and
particulars of claim known with enough clarity so that the defendant
can know what case he has got to meet to escape liability,
the
defendant has to be open and candid as to what his defence would
entail so that plaintiff is placed in a position to know what
evidence, if any, and legal arguments would be required to prove his
case. That is what the exchange of pleadings are there for
in actions
based on summons and, when the plaintiff has stated enough in his
particulars of claim to justify his standing and cause
of action, at
least on a prima facie basis as in this matter, the defendant is
entitled to ask for further particulars if he is
unsure of the extent
of plaintiffs allegations that he has to meet. He does not need to
plea before he received same.
[22]
In this matter, after having obtained further particulars,
48
Potgieter first pleaded that he knew that Harmonie was acting as
SASOL's agent, and that he admits to having bought and received
the
fertilizer products; but, then countered with an allegation that he
has paid everything to Harmonie, and that Harmonie was
therefore
probably indebted to pay the monies that it received over to SASOL.
It was only subsequent to that plea, and after even
having provided
further particulars to that plea, that he succeeded in amending his
plea as outlined above. Furthermore, as indicated
above, his plea was
not clear as to exactly how he proposes to deal with the issue of
SASOL's locus standi. His amended plea cannot
be regarded as an
exception to the claim or as a special plea of non locus standi in
judicio. At best, his amended plea is a challenge
to plaintiff to
allege the specific basis of its standing and, in addition to prove
same. Responding to this, plaintiff pleaded
in replication that it
would rely on the existence of an agency relationship to establish
its locus standi proper. There was therefore
nothing wrong with
plaintiff only raising the issue of agency in replication. Lastly, in
this regard, the fact that it was pleaded
only in replication was not
complained of in the court a quo, and only a feeble attempt was made
to address that issue on appeal
to this Court, and I am therefore
inclined not to hold it against plaintiff that its reliance on agency
was only pleaded in replication.
It would however be advisable to
plaintiffs, such as SASOL in this matter, to in future disclose their
reliance on agency agreements
to establish locus standi in their
founding papers (be it summons or founding affidavit) in order to
evade difficulties such as
those that presented themselves here.
The trial: How the issues identified
in the pleadings were dealt with
[2]
Against this background, one can now establish how Potgieter dealt
with this allegation of and evidence for SASOL at the trial.
Surprisingly, the existence of the agency agreement and the mandate
of Harmonie were never placed in issue, and the undisputed
evidence
tendered on behalf of SASOL appeared to be accepted as correct by
Counsel on behalf of Potgieter. Most of Counsel's cross-examination
of SASOL's witnesses was devoted to the issue of whether either
Harmonie or SASOL at any stage expressly indicated to Potgieter
that
Harmonie was acting as SASOL's agent in terms of its specific mandate
to provide fertilizer products to farmers, including
himself; and, if
not, how he could have been expected to know about this relationship
and pay someone (SASOL), with whom he did
not contract directly,
without knowledge of any relationship {nexus) between the two of
them. Employing typically lawyerly (I regret
to say in South African
current day legal practice) antics and histrionics, Mr Botes (for
Potgieter) would regularly submit that
his client, to his own mind,
had nothing to do with SASOL; that all he knew is that he was doing
business with Harmonie (not SASOL);
and, that he could not be
expected to pay someone (SASOL) in terms of invoices issued by it;
whereas, according to his knowledge,
he was only contractually liable
towards Harmonie, whom he knew as the party with which he contracted.
At one stage, as a result
of his antics and histrionics, a witness
for SASOL, Daniel Visagie, responded sarcastically to his
hypothetical question to make
his point of argument with the court a
quo:
"[Botes:]
Ek voorsien u van regsadvies vir die afgelope 5 jaar, en ek stuur vir
u die rekening, volgende maand kry u 'n rekening
van Johan van
Rensburg Prokureurs gaan u daai rekening betaal? — [Visagie:]
Maar kyk soos ek die Regspraak profesie ken mag
'n Advokaat jou nie
direk 'n rekening vir jou stuur nie hy gaan dit via die Prokureur na
my toe stuur."
49
[24]
It was never suggested to any of the witnesses that Potgieter did not
receive any invoices from SASOL as the witnesses testified.
To the
contrary, Mr Botes put it to Steyn during cross examination that,
although Potgieter, out of the blue as it were, received
invoices
from SASOL instead of Harmonie, he refused to pay SASOL on strength
of these invoices because as far as he knew, he contracted
with
Harmonie, and not with SASOL, with whom he had no relationship
whatsoever.
50
Mr Botes further acknowledged that, at one stage, Potgieter did
receive a 'credit agreement application' form from SASOL in the
post,
but asserted that he (Potgieter) had disdainfully discarded it in the
dustbin because he had nothing to do with SASOL and
all he knew about
was his existing credit agreement with Harmonie (not SASOL); and,
therefore, he did not think it necessary for
him to apply for credit
with SASOL directly.
51
Mr
Botes further asserted throughout his cross-examination of SASOL's
witnesses that Potgieter could not be blamed for not knowing
that
Harmonie was acting as SASOL's agent in terms of a very strict
mandate for the provisioning of fertilizer products on behalf
of
SASOL, because he was never expressly and in detailed terms informed
by either the agent (Harmonie) or the principal (SASOL)
of the
existence of the agency relationship relied on.
[25]
In the process, Botes expounded
52
on a fallacy that was already included in Potgieter's opposing
affidavit to ward off summary judgment, by asserting that the
documents
supplied to Potgieter by Harmonie, although containing the
names or trademarks of both Harmonie and SASOL, Harmonie's
particulars
were in bold and SASOL's not, and that only Harmonie's
address appeared on the documents.
53
This is of course misleading because, when one has regard to Annexure
"A" that Potgieter attached to his opposing affidavit
to
avoid summary judgment,
54
it reflects only the name, address and particulars of SASOL in bold
and at the heading thereof, whereas Potgieter's relationship
with
Harmonie is only reflected insignificantly at the bottom of the
invoice.
55
Final
determination of the appeal
[26]
Be it as it may. It matters not whether Potgieter was expressly and
formally informed of the agency relationship and the specific
terms
of Harmonie's mandate issued by its principal, SASOL. In terms of the
so-called 'doctrine of the undisclosed principal',
56
SASOL could at any time when it perceived Harmonie unable to enforce
payment in terms of its mandate , as SASOL's agent, step forward
and
claim that the contracting party that acquired the goods through its
agent, pay for what he received in terms of this relationship,
albeit
undisclosed. Whether disclosed or undisclosed, normally only the
principal acquires rights or incurs obligations under the
contract
concluded by his agent with a third party. The agent does not become
either entitled or obliged, and cannot personally
sue or be sued
under the contract.
57
Nor can he sue or be sued in his own name, as representing his
principal, unless he is specifically mandated to represent his
principal in legal proceedings.
58
Otherwise, an agent may only sue or be sued, where the contract is in
such terms as to entitle or to obligate the agent,
59
as was the case when Harmonie was still providing credit to buyers of
SASOL's fertilizer products; and in other instances that
are not
directly relevant here.
60
[27]
Despite various criticisms against the operation of this doctrine in
common law systems
61
and, especially in the hybrid system of South Africa, the doctrine
and all its ramifications is undoubtedly part of South African
law
62
Contractual liability of and against undisclosed principals can only
be escaped in situations where it is clear that, at the time
of the
contract it was of the utmost importance in terms of the contract for
both the contracting parties to know that they are
contracting with
each other and with no one else; or, where the third party would not
have entered into the contract with the agent
if he knew exactly who
the principal was.
63
None of these situations can be said to have arisen here, simply
because that was never expressly put in cross-examination to any
of
the witnesses for SASOL;
64
and, secondly, because Potgieter never testified so that the court a
quo could be made aware of his intentions, which means that
the court
had no evidence to rely on for such an inference and, therefore, an
adverse inference had to be drawn against Potgieter
for his failure
65
Furthermore, if Potgieter's version is to be accepted as correct that
the identity of the principal was not disclosed to him before
he
contracted, he has suffered no prejudice from the fact that he
contracted with an undisclosed principal at the time. According
to
the facts that are common cause, he needed the fertilizer products,
he ordered and took delivery thereof and consumed them.
Why should he
not be held liable for payment, albeit to an undisclosed principal?
66
[28]
It can however not be said that, on the probabilities, Potgieter was
never aware of the agency relationship between Harmonie
and SASOL. To
the contrary: All the witnesses for Plaintiff were at pains to show,
that such mandate existed; that everyone in
the Lowveld of Mpumalanga
knew about it; that all the stationery used by Harmonie reflected
that fact; that even the phones at
Harmonie would be answered as if
they were operated by SASOL or, at least, its agency; and, that the
trucks delivering the fertilizer
products to the farmers (including
Potgieter) bore the markings of SASOL. Although Botes at various
occasions indicated that Potgieter
would come and testify that he was
completely unaware of this relationship between Harmonie and SASOL,
Potgieter never testified.
He also did not call any witnesses to
support this assertion of his. Thus, due to Potgieter's silence when
given the chance to
present evidence in rebuttal, the court a quo was
correct in accepting the prima facie evidence of the Plaintiff,
justifying the
inference that Potgieter knew about this relationship
(or, at least that he could reasonably have been expected to know
about its
existence).
67
[29]
This is however not where it all ends. For the first time on appeal,
Mr Botes argues on behalf of Potgieter that it was never
SASOL's case
on the pleadings that Harmonie at all relevant times acted as its
agent.
68
This argument is of course not entirely correct. Firstly, while
SASOL's summons disclosed at least a prima facie case for its legal
standing in that it instituted the claim for fertilizer products sold
and delivered to Potgieter at the latter's specific request
and
insistence,
69
Potgieter's own assertions in his opposing affidavit to avoid summary
judgment,
70
in his plea before amendment,
71
and even in his further particulars to his plea before amendment were
that an agency agreement in fact existed. Secondly,
72
after Potgieter's plea was amended to challenge (or rather evade and
contest) SASOL's locus standi in this regard, SASOL pleaded
existence
of an agency agreement in replication, which it was entitled to do
after Potgieter withdrew his admission that surfaced
in his first
plea. In this regard it is also instructive that Potgieter never gave
evidence to explain why he decided to withdraw
his first admission to
replace it, not with a clear challenge or denial, but rather with an
evasion to admit or deny and demanding
that proof of the agency
agreement be provided.
73
In the third place, the evidence presented on behalf of SASOL that an
agency agreement existed was never contested during cross-
examination or through evidence in rebuttal. For the latter reason,
Botes’ further argument that, if a party wants to rely
on
'agency', he has to aver and prove the exact terms and extent of his
agent's mandate,
74
and that, where a party avers that a contract was concluded between
them it necessarily implies that no agent or representative
was
involved and that the parties therefore contracted inter partes,
75
need not seriously be considered. He, at various occasions during
cross-examination of SASOL's witnesses conceded on behalf of
Potgieter that an agency agreement existed, and that the terms of
Harmonie's mandate was perfectly clear; but, so he constantly
argued,
Potgieter was never aware of the agency agreement and relationship
and, therefore, Potgieter was not in debt towards SASOL.
[30]
It is clear that Potgieter's appeal cannot succeed and, in addition,
it is clear that he has only abused process during the
exchange of
pleadings, during the trial and in lodging the appeal in order to
avoid or, at least, delay the inevitable, namely
that he is to be
held accountable for his debt incurred by ordering and receiving
fertilizer products supplied by SASOL. Punitive
costs should
accordingly be awarded on a scale of attorney-and-client.
The order
[31]
I would therefore propose that an order in the following terms be
given:
1.That
the appeal is dismissed and the order of the court a quo is upheld in
every respect. Thus:
1.1
Plaintiffs claim succeeds in its entirety with costs;
1.2
Defendant (Appellant) is ordered to pay Plaintiff (Respondent) the
amount of R85,387.41 plus interest on that amount calculated
at 20%
per annum from 1 February 2002 and, at 24% per annum from 12 July
2002; as well as,
1.3
Costs on the scale of attorney-and-client for the proceedings in the
Magistrate's Court;
2.
That costs of appeal is awarded to respondent on a scale of attorney
and client, including costs for Counsel.
A A LAMPRECHT
ACTING
JUDGE OF THE NORTH GAUTENG HIGH COURT
I
agree and it is so ordered
NV KHUMALO
JUDGE
OF THE NORTH GAUTENG HIGH COURT
Representation
for the appellant:
Counsel:
Adv FW Botes
instructed
by Attorneys: Van Rensburg Prokureurs
Representation
for respondent:
Counsel:
Adv JJ Pretorius
Instructed
by Attorneys: Gerrit Coetzee Ing
1
D
Steyn. Vol l.p74toVol 2. pt 19 of appeal record.
2
Steyn.
Vol 1, p75: DA Scholtz. Vol 2. pI21 of the appeal record.
3
Scholtz,
Vol 2. pl22. lines 1. 2 of the appeal record.
4
Scholtz.
Vol 2, pi 22. lines 1 8 to 23 of the appeal record.
5
E.g., Vol I. p 31 of the
appeal record - "Aanhangsel 'L1: Afleweringsnota”.
supplied with Respondents further particulars
to claim. Note that
the delivery note depicted on Vol 1 p 31 is a copy of the original
form, which bears the stamp, while the
book copy depicted on Vol 1 p
30 does not bear a stamp, reportedly because the agent need not
indicate on its own document that
he is SASOIAs agent - see the
evidence Scholtz at Vol 2. p 133. lines 18 to 24. Unfortunately the
whole Exhibit "A"
to which Scholtz refers to under
cross-examination here was not included in the appeal record.
Appellant, whose duty it is to
submit a properly prepared and
paginated record on appeal - Uniform Rule 50(7) - regrettably did
not supply any reasons for the
incomplete state of the record and.
therefore, the evidence of Scholtz must be accepted as
correct
in this respect. See also the court
a quos
assertion
111
para 6.4.1 of its judgment. Vol 2. pi 89 of the appeal record that
all the documentary exhibits indicated that SASOL was the
actual
contracting party (principal) while, where necessary, Harmonie was
identified as oniy the agent for SASOL. Sec also Counsel
for
appellant's assertion at Vol 2 p 90 lines 5 to 7 of the appeal
record that there were, at least on the document referred
to there,
an indication that Harmonic were "agente vir Sasol Kunsmis".
6
Scholtz. Vol 2. pi 23 of
the appeal record.
7
Steyn. Vol 1, pp77. line 23 to Vol 2. p85. line 4 of appeal record.
Note that Stcyn would later in his evidence under cross-examination
refer to his friendship with Potgieter in almost acidic terms - Vol
2. p 105, lines 18 to 21: "So as. as Yleneer Potgieter
onder
die indruk was ek is sy finansier
(.sic)
moet hy scker
sy goeie pet
bel en se luister my ou maat hier’s 6 fakture wat nie op jou
staat is nie tic. ek vvil jou graag betaal."
8
Exhibit "B" -
Vol 2, ppl 70-171 of appeal record. See also Steyn. Vol 2. p83. line
23 to p84, line 4; p91. lines 15
to 17: p98. lines 5 tol7; pi 07.
lines 3 to 9 of the appeal record.
9
Scholtz. Vol 2. p 146. line 16 to pi 47. line 1 1: D Visagie. Vol 2,
p 157. line 1 8 to pi 58. line 20.
10
Generally
see Steyn. Vol I. p74 to Vol 2. pi 18: Scholtz. Vol 2. ppl 19-154;
and Visagie. Vo! 2. ppl 54- 165 of appeal record.
11
Vol
1, ppl-2 of appeal record.
12
Further particulars and
annexures - Vol 1, pp8-45: Supplementary Discovery Affidavit - Vol
1. pp46-48: and. Reply on amended plea
- Vol 1. pp68-9 of appeal
record.
13
Op
cit
footnote 10.
14
Exhibit "E" - Vol 2 ppl 74-175 of the appeal record
indicating Potgietcr's payment of R9. 1 56.48 per Harmonic's order
HB2920. See also evidence of Scholtz - Vol 2 pi 26 line 17 to pi27
line 21.
15
The
evidence of Scholtz under cross-examination of Counsel for Potgieter
- Vol 2. p! 47. line 3 to 17.
16
Contra
however his initial plea and further particulars to plea that will
he dealt with
infra.
17
In
King v King
1971 (2) SA 630 ((>) it was held that the function and purpose of
pleadings in civil matters is threefold: (1) To inform the
parties
what the issues are in order to prepare for the trial; (2) To inform
the court of the issues in order to ascertain the
extent (scope) of
the dispute: and. (3) To place the issues on record in case one of
the parties wishes to reopen the same issues
after it had already
been decided. The purpose of pleading is to facilitate a proper
decision on the merits, his therefore important
that the issues are
set out precisely and with sufficient particularity so that it will
aiso be clear to somebody other than
the litigants what the dispute
is actually about. Preciseness should however not be equaled with
furnishing of unnecessary detail
- see
Conley
v
Gibson
355 U.S. 41 (1957); Kmily Sherwin "The jurisprudence of
pleading: Rights. Rules, and Conley v Gibson"
Cornell
Law Library: Cornell Law Faeulty Publications
available at http: scholarship.!aw
.cornell.edu
cgi
vievvcontent
18
Vol
1, pp49-50 of appeal record.
19
Vol 1, pp4-6 of appeal record.
20
By
way of exception in terms of Magistrates' Courts Rule I7(2)(a)
before amendment; or by way of a special pica of
non locus
standi in judicio
in terms of
Magistrates' Courts Rule !9{ 12) before amendment. Note that, at the
time of action, the Magistrates' Court Rules
have not yet been
amended as was the Magistrates' Court Act 32 of 1944 through the
Jurisdiction of Regional Courts Amendment
Act 31 of 2008 and other
amendments up to and including Government Gazette 33448 of 6 August
2010. The current Rules have been
promulgated as the "Rules
Regarding the Conduct of Proceedings of the Magistrates' Courts of
South Africa" in G\ R740,
Government Gazette 33487 of 23 August
2010.
21
This
changed when he amended his plea as indicated
infra.
22
Which
particulars of claim, to my mind,
prima facie
clothed SASOL with legal standing to sue Potgieter for debts owed.
23
Cf..
G&C
Construe!ion Ltd v De Beer cn 'n Ander
2000 (2) SA 378 (1), In this case it was held that plaintiff could
not rely on s 63(a) of the Close Corporations Act n69 of 1984
to
claim directly from a member of a CC after the CC was liquidated on
the basis that, it was not initially disclosed to him
that he was
dealing with a CC: but. where evidence established that he continued
doing business with the C'C for part of the
contract period after he
became aware of the status of the instance that he was dealing with.
In other words, the member of the
CC was held to be liable only for
debts which arise while other contracting party was not aware that
he or she is dealing with
a CC (and not a natural person) due to the
conduct of the member in not disclosing same. As soon as this
information was disclosed,
however, the member could no longer be
held personally liable. Subject to the doctrine of the 'undisclosed
principal1 that will
be discussed
infra,
the same reasoning applies here. According to basic principles of
the law of contract and the law of agency, as soon as Potgieter
became aware that Harmonie was acting as agent of SASOL. he became
indebted to SASOL. through its agent and had to settle all
his debts
incurred towards the latter either directly or to SASOL's agent.
Harmonie. According to the undisputed evidence, however,
both SASOL
and Harmonie. however, expected all payments to be made directly to
SASOL - paras |6]-[7]
supra.
24
Sec the court
a
quo'?,
judgment at Vol 1. pp60-67 (duplicated for reasons unknown at Vol 2,
ppl 76-1 83) of the appeal record. In this regard, the court
a
quo
acknowledged that pleadings can be applied for any time before
judgment, to bring it in conformity with the evidence, and that
postponement and award of punitive costs would ameliorate any
hardship that plaintiff would suffer as a result of the amendment,
I
can here he noted as well that plaintiff failed to specifically set
out in the particulars of claim in the simple summons that
it is
going to rely on an agency relationship that it had with Harmonie
and that, therefore, defendant was entitled to deny
locus
standi
in his pleadings. The pica in this regard however runs totally
contra
his initial plea that he was aware of the agency relationship and
that he was indebted to SASOL through its agent, 1 larmonie:
hut.
that he has paid his debts.
25
Para
1 of amended plea.
26
Para
3 of amended plea.
27
Para
1 of the amended plea: "Die Yerweerder dra egter nie kenms van
die Eiser se
locus standi
en/of regspersoonlikheid nie. kan dit gevolglik nie erken of ontken
nie en word die Eiser tot bewys daarvan geplaas."
28
Hoole
v
Singei
(1 905) 10 I ICG 38. See also
Potchefsiroomse
Stadsraad v Kotze
1 960 (3) SA 6 I 6 (A);
Seal
a Cafe
v
Rand
Advance (Ptyj Lid
1975 (1) SA 28 (N): and
Glolinco
v
Ahsa
Bank Ltd t a United Bank
2002
(6) SA 470 (SCA) referred to in appellant's heads of argument.
29
E.g..
Scott and Others
v
Hanekoni and Others
I 980 (3) SA I I 82 (CPD) at I 188-9:
Giant Concerts
r
Minister of Local Government. Housing and Traditional
Affairs, KwaZulu-Natal, and Others
201 I (4) SA 164 (K.ZP) at para [16].
30
Supra
footnote 20.
31
1924
AD 69.
32
The
content and structure of paragraphs [I6]-[18] mainly follows the
reasoning and style of earlier editions of
Jones
A
Buckle: The Civil Tract ice of the Magistrates Courts in
South Africa: Vol 11: The Rules
before
amendment of the Act and Rules. The Rules have now been changed and
extensive use has also been made of the DE Van Loggerenberg.
Jones
A-
Buckle: The Civil Practice of the Magistrates Courts in
South Africa: Vol II: The Rules
(10th ed - Loose Leaf ) 55-6 to 55-6A in terms of the terminology
used and authorities cited therein.
33
At
74 of the judgment. See also
Brits v Coetzee
1967 (3) SA 570 (T)
34
At
74 of the judgment. See also
Van Zyl v Crausc
1945 OLD 168 at 170:
Turner
r
Done/ly
195 1 (4)
SA 21 (T) at 22:
Brits
v
Coetzee supra
footnote 33; J
'ilfoen
r
kale rated Trust Ltd
1971 (1) SA 750 (O) at 757.
35
°
Cf. e.g..
Grill
v
Kotze
1927 CPD 99 at 101. See however also
Jones
v Raad
1940 CPD 376 at 380.
36
Per
Selke J in
Nces and korving v Lout as
1950 (4) SA 300 (N) at 302
37
Nienahe.r
v
Union
Government
1947 (1 ) SA 392 (T) at 393-4:
Gooscn
v Reed
1955 (2) SA 478 I I ) at 481;
Maree
v Died cricks
1962 (I) SA 231 (T);
Oden
dual
v
Van
Oudtshoorn
1968 (3) SA 433 (T) at 436 See also
Scott
and Others
v
Hanekom
supra
footnote 29 at 1 189
ei
seq
.
where the Court was prepared, even in the High Court, to draw
inferences from an incomplete statement
of
locus standi.
38
General Commercial and Industrial Finance Corporation Ltd
v
Pretoria Portland Cement Co Ltd
1944 AD 444 at 453;
Brits
v
Coetzee supra
footnote 33.
39
Liquidators
Wapejo Shipping Co Ltd
v
Lurie
Bros supra
footnote 3 I at 74 of the judgment.
40
Ibid.
See also
Cilliers
v Van Biljon
1925 OPD 4.
41
Supra
loc cit
footnote 37
.
42
'
Ibid.
Own italics.
43
44
It
was held that it cannot be done in.
South African Milling
Co (Ply) Ltd
v
Reddy
1980 (3) SA 43 1 (SF.):
Inlcrboard SA (Ply) Lid v Van den
Berg
1989 (4) SA 1 66 ((.));
United Methodist Church of South Africa v Sokufundumula
1989 (4) SA (4) 1055 (O):
South African Allied Workers'
Union
v
De Klerk NO
1990 (3) SA 425 (E) at 181 B (confirmed on appeal in
South
African Allied Workers' Union (in liquidation) v De Klerk
"NO 1992 (3) SA 1 (A) - bul the question o
Hocus
standi
was not considered on
appeal, at 4H): and. AM
V Tractor
ct
Implement Agencies Bk v Vennootskap DSU Ciiliers
ct
Seuns (Kelrn Vervoer (Ldms) Bpk Tussenheitredend)
2000 (2) SA 571 (NC). On the otiier hand, however, it was held that
it can be done and that the court has a discretion to come
to the
aid of the applicant in appropriate cases in
Baeck
cV-
Co SA (Ply) Ltd
v
Van Zummeren
1982 (2)
SA 1 12 (W) at 11811-119D;
Evangelical Lutheran Church in
Souther)} Africa (Western Diocese) v Sepeng
1988 (3) SA 958 (B) at 966A-B:
Dc Polo v Drever
1991 (2) SA 164 (W) at 178C-I79B:
Nahrungsmittel GmbH
v
Otto
1991 (4) SA
414 (C) at 418D:
Plettenberg Bay Country Club v Bitou
Municipality
[2006J 4 All S A
395 (C) at 399c: and.
Msunduzi Municipality
v
Natal Joint Municipal Pension/Provident Fund
2007 (I) SA 142 (N) at I47G-H. While the SC A has yet to
authoritatively and pertinently rule on this issue, it was already
contended that the latter approacli has been approved by the
Appellate Division in
Moos a and Cassim NNO
v
Community Development Board
1990 (3) SA 175 (A) at 181 B. See
Merlin Gerin (Pty/ Ltd v
All C'itrrent and Drive Centre (Ply) Ltd
1994 (1) SA 659 (C):
Fanny ays Mall (Ply) Ltd
v
South African Commercial Catering and Allied Workers
Union
1999 (3)
SA
752 (W) at 753CJ-11: and.
Cyberscene Ltd v i-Kiosk
Internet and Information (Ply) Ltd
2000 (3) SA 806 (C) at 811B-812H. A contrary view was held in the
a
quo
decision
of South
African Allied Workers' Union
v
De Kick NO supra loc cit.
but the matter was not considered on appeal in
South
African Allied Workers' Union (in liquidation) v De Klek NO supra
loc cit.
Finally, in
Smith
v
Kxvanonquhcla Town Council
1999 (4) SA 947 (SCA) at 954F-H. it was emphasized (albeit
obiter)
that the Appellate Division in
Moosa supra
clearly
adopted the correct approach in
Baeck Co supra
and that the SCA therefore fully subscribes to the view that a court
has the discretion to come to the aid of an applicant that
neglected
to fully disclose his standing in the founding papers. It was also
pointed out (at 95411) that the rule against new
matter in reply is
not absolute and that it should be applied with a fair measure of
common sense.
45
Supra
at para [10].
46
For the requirements where reliance is placed on agency, see
Poichefsiroonise Stadsraad
v
Koizc: Seal a Cafe
v
Rand Advance (Pty) Ltd:
and
Glqfineo v Ahsa Bank Lid t/a United Bank supra
footnote 28.
47
Mail (Cape) (Pty) Lid
v
Merino
Ko-operasie Bpk
1957 (2) SA 347
(C):
Thelma Court Flats (Ptv) Ltd v Me Swigi
1954 (3) SA 457 (C):
Shell Company of South Africa
v
liner Motors (Ply) Ltd
1959 (3) SA 971 (W);
Pool quip Industries (Pty) Ltd v
Griffin
1978 (4) SA 353 (W);
Tat ter sail
v
Nedcor
Bank Lid
1995 (3) SA 222 (A) at
228 F-H:
C eke she v Premier
.
Eastern Cape
1998 (4)
SA 935 (Tk) at 952A-B:
Plettenherg Bay Count/y Club v Bit
on Municipality
[2006] 4 All SA
395 (C) at 398f-g;
Musunduzi Municipality v Natal Joint
Municipal Pension'Provident Fund
2007 (!) SA 142 (N) at 149F-I:
Graham
v
Park Mews Bod\ Corporate
2012 (I) SA 35 5 (WCC) at 360C-G.
48
Unfortunately the
request for further particulars docs not form part of the appeal
record, hut. judging from the use of the word
'Agente' in para 1.3.7
of the further particulars - Vol 1. p 10 of appeal record - it can
be inferred that Potgieter did ask
in his request for further
particulars to whom SASOL alleges payment had to be made to escape
liability .
49
Visagie. Vol 2. p.60.
lines 10 to 14.
50
Botes' cross-examination
of Steyn, Vol 2, pi 13. line 12 to pi 14. line 7.
51
Botes' cross-examination of Steyn. Vol 2. pi 13. lines 8 to II: of
Scholl/, Vol 2. pi 52. line 21 to pi line 3: and of Visagie.
Vol 2,
pl63.
line
24 to p 164. line 9 of appeal record.
52
Botes’
cross-examination of Steyn - Vol 2 p 90lines 4 to R. r" Para
3.2 of Potgieter's opposing affidavit - Vol I p5
of appeal record.
53
Vol
1 p 7 of the appeal record - referred to in para 3.2 of the opposing
affidavit.
54
It perhaps has to be conceded in this regard that Potgieter. in the
record that he supplied to this Court in terms of Rule 50(7).
indicated on Annexure "A" that " Dokumcut ontbrcek:
’n Voorbeeld aangeheg (Docucare)". Once again,
however,
appellant ventures no explanation for the original document not
having been supplied to the Court -
viz
para 9.1. more particularly para 9.14 of appellant’s practice
note.
55
’
56
E.g.,
A.) Kerr
The Law of Agency.
3rd ed. 259
el seq\
DJ Joubert "Agency and
Stipulalio Alien'"
in R Zimmerman and E) Yisscr (cds)
Southern Cross: Civil
Law and Common Law in South Africa
(1996) 335 at 342-3:
Factory Investment (Ply) Ltd v Ismail
1960 (2) SA 10 (I) at 14. The legal position of disclosed and
undisclosed principals in the law of agency is also set out in
DE
Van Loggerenberg
Jones
ct
Buckle: The Civil Practice of the Magistrates Courts in
South Africa: Vol II: The Rules
(10th cd - Loose leaf) 5-1 8 to5- 20.
57
Logan
v
Read and Ash
(1 892) 9 SC 514:
Leslie's Trustee
v
Leslie
1903 TS 701:
Fairbairn v Pepper
(I
909) 21 SC 1 54:
Schmidt v Barnardo
(1906) 23 SC' 447:
Blower v Van No or den
I 909 TS 890 al 897-9:
Freemantle v McKenzie
1915 CPD 568:
Commaille
v
Jamaloodien
1917
C'PD 656:
Howard's Debt Collecting Agency
v
Haarhoff
1925 TPD
272:
SWA Amagamecrde Afskiers (Fdms) Bpk
r
Louw
1956 (I)
SA
346 (A):
Wat
kiwi Shipping C'o Ltd v Thomas Barlow and Sons (Natal) Ltd and
Another
1978 (1) SA 671 (A) at 680D;
Sentrakoop
Handelaars Bpk
r
Lourens
199) (3) SA 540 (W);
Standard
General Insurance Co Ltd v Eli Lilly (SA) (Ply) Ltd (FBC Holdings
(Pty) Ltd, Third Parly>
1996 (1) SA 382 (W) at 387C-D:
Graved
NO
v
Van
der Merwe
1 996 (1) S A 53 1 (D) at 537G.
58
Fulton
Co
v
Knox
1917 VVLD 48:
Ashley
v
SA
Prudential Ltd
1929 TPD 283:
Town
Conned! of Brakpan v Cohen
1938 WLD 146:
Belonje
v
African
Electric Co (Pty) Ltd
1941 (!) SA 592 (E) at 598:
Sentrakoop
Handelaars Bpk
v
Lourens
supra
footnote 57 at 544E-545G
59
Blower
v Van Noorden supra
footnote 57 at 897:
Wood
v
Visser
1929 C'PD 55:
Steenkanip
v Webster
1955
(1) SA 524 (A):
Edelson
v
Glenfields
Estates (Ptv) Ltd
1955 (2) SA 527 (E):
Langham
Court
(Pty)
Ltd
i’
Mavromaty
1954 (3) SA 742 (T).
60
Van Loggerenberg
op cit
footnote 32 at 5-18 to 5-20.
61
E.g.. Ibrahim Sulc. "Should the Doctrine of Undisclosed
Principal be retained?"
Nigerian Journal of Business
and Corporate Law
1.1 (2010):
68-81. Availabl c at: http:/ vvorks.bepress.com ibrahim s u Ie 7
62
Cullinan
v
Noordkuaplanse
Aarlappelmoerhvekers Kooperasie, Bpk
1972 (I) SA 761 (A); CJ Nagel "Undisclosed Principal - Locus
Standi of Agent to sue in his own name - Remedies for Breach
of
Contract Botha v Giyoset/a Paragon Fisheries [2007] SCA 73 (RSA)"
(2007)
THRHR-
I'ONNLSSE
687.
63
Lambinion v Du Toil
1952 (4) SA 431 (T). Mote that in
Karstein
r
Moribe and Others
1982 (2) SA 282 (! ) at 299F.-300A, Ackermann J held that Kerr's
formulation of the "personal consideration rule" is
too
widely stated w'here mere personal objection by the third paily to
the principal's intervention, unconnected to any prejudice,
would
serve to exclude the principal's intervention.
64
All
that was put is that Potgieter never kncw: of the fact that he was
actually contracting with SASOL (tli principal) and not
with
Harmonic (the agent) and that, there lore, he refused to pay SASOL
when he was invoiced. It w'as never suggested to any
of'the
witnesses that Potgieter would never have ordered, bought and taken
delivery of the fertilizer products had he known that
the other
contracting party was SASOL, not Harmonie; or. that it was of utmost
importance that the contracting parties knew'
exactly who the other
parly was.
65
Brand v Minister of Justice
1959 (4) SA 7 12 ( A) al 71 5: DT Zeffert
et
a! The South African i.,aw of Evidence
(2003) 128. From a criminal law perspective, see also
R
v Mohr
1944 TPD 105 at 108: "Where a question ofthc state of mind of
an accused person is in issue, it is not easy fora Court to
come to
a conclusion favourable to the accused as to his state of mind
unless he has himself uiven evidence on the subject."
Thus, a
failure to produce cvidcncc may. in appropriate circumstances, lead
to
prima
facie
proof presented by the State becoming conclusive proof as to one's
state of mind. See further
R
v Dcetlefs
1953 (I) SA 418 (A) at 422G: .S’v
Kola
1966 (4) SA 322 (A) at 327: .S’v
Thcron
1968 (4) SA 61 (T) at 63D-H
.
66
Karstein
v
Mori
be and Others supra
footnote 63.
67
Ibid.
68
Para
10 of Appellant's Heads of Argument.
69
Supra
para f 10J. See also para [17].
70
Para
3 of opposing affidavit - Vol 1, p5 of appeal record.
71
Vol
1, p5l of appeal record.
72
Vol 1, p 52 of appeal rccord.
73
Jennings
v
Pa
rag
1955 (1) SA 290 (T) at 292G.
74
Para 1 1 of Appellant's
Meads of Argument.
75
Para
12 of Appellant's 1 leads of Argument.