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[2013] ZAGPPHC 427
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ABC Sports Management Ltd v Botha (34431/11) [2013] ZAGPPHC 427 (15 November 2013)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
PROVINCE, PRETORIA
Case
number 34431/11
Date:
15 November 2013
Not
reportable
Not
of interest to other judges
In
the matter between
ABC
SPORTS MANAGEMENT LTD
……………………………………
Plaintiff
and
GARY
BOTHA
…………………………………………………………
Defendant
JUDGMENT
BAM
AJ
1.
The
plaintiff is a professional agency representing rugby players. The
defendant is a professional rugby player. On 5 October 2009
the
plaintiff, represented by its sole director, Mr Christian Abt,
entered into a written agreement with the defendant
["the
agreement").
In
terms of the agreement the plaintiff was exclusively mandated, for an
initial effective period of two years, to represent the
defendant in
all contractual negotiations with any employer, or prospective
employer anywhere in the United Kingdom or France.
The contract was
effective for two years and could be terminated after the expiration
of the initial two years, by either party,
with three months written
notice. It was a term of the contract that the plaintiffs
professional services were to be paid, by the
defendant, as fees
under the terms of all contracts entered into by the defendant during
the period of the agreement at the rate
of 10% plus VAT.
2.
The plaintiff averred that the defendant, during or about February
2011, in breach of the terms of the agreement, negotiated
a contract
with the Toulouse Rugby Club in France. The contract between the
defendant and Toulouse was subsequently concluded for
a period of
three years, allegedly, at a monthly salary of €22 000.
3.
The plaintiff accordingly claimed damages in the amount of €79
200, being an amount equal to 10% of the total remuneration
of the
defendant, which amount the plaintiff averred was due and payable on
or before March 2011, the date of the conclusion of
the contract
between the defendant and Toulouse. During argument the plaintiff
applied for the amendment of the amount claimed
to €81 641.60.
The respondent opposed the proposed amendment. I will return to this
issue.
4.
It was further averred by the plaintiff that the defendant repudiated
the agreement in a letter dated 28 March 2011, stating
that he was
cancelling the agreement. The plaintiff did not accept the
repudiation and informed the defendant of its intention
to hold the
defendant to the terms of the contract.
5.
The defendant in his plea admitted that he entered into the agreement
but pleaded that the agreement was entered into with Mr
Abt
personally and not with the plaintiff. The defendant further pleaded
that it was
"a
common mistake"
between
him and Mr Abt that the agreement did not reflect that it was
actually entered into between the two of them personally,
and that
the contract therefore
"falls
to be rectified".
The
defendant did however not lodge a formal application in this regard.
6.
In the alternative to the proposed rectification of the agreement,
the defendant pleaded that Mr Abt was the only person in the
employ
of the plaintiff who had the exclusive right to represent the
defendant and that Mr Abt was obliged to perform in accordance
with
the agreement, including finding employment for the defendant in
France.
7.
The defendant further pleaded that Mr Abt, or the plaintiff, would
only have been entitled to a fee in the event of a successful
negotiation of a contract and Mr Abt, or the plaintiff, being the
effective cause of the contract. The prospective employer would
then
be liable to pay the fees due to Mr Abt or the plaintiff.
8.
The defendant admitted in his plea that he concluded a contract with
the Toulouse Rugby Club for the sport seasons 2011/ 2012,
2012/2013
but denied that he or any-one else on his behalf had any negotiations
with Toulouse during February 2011. The defendant
further pleaded
that at the time he concluded the agreement with Toulouse in November
2011 he had already terminated his agreement
with Mr Abt, or the
plaintiff. He denied that the plaintiff, or Mr Abt, had anything to
do with his agreement with Toulouse.
9.
The defendant further specifically pleaded that Mr Abt:
(I)
failed to negotiate any employment for him;
(ii)was
not licenced to negotiate any employment or contract on behalf of the
defendant as a professional rugby player in France,
and, in
particular that Mr Abt had no mandate from the Toulouse club to
source players for it.
10.
The defendant also pleaded that due to injuries his contact with
Toulouse was terminated and that he was paid the total gross
salary
of €331 280.82.
11.
In conclusion the defendant pleaded that Mr Abt, or the plaintiff
was, for the reasons stated, in breach of the agreement.
12.
In preparation for trial the defendant requested the plaintiff to
furnish certain further particulars. The request included
the
following questions.
"
10. Is Abt registered as an agent in France?
11.
Is the plaintiff registered as an agency in France?
28.Does
the plaintiff admit that in order to have performed its obligations
in terms of the contract of mandate it would have
been obliged to
obtain the mandate of Toulouse Rugby Club in addition to that of the
defendant?
28.
Does the plaintiff admit that in order to obtain the mandate of the
Toulouse Rugby Club, it, or Abt, would have been obliged
to have
been registered as an agent in France at the conclusion of the
contract of mandate?"
13.
The answer supplied by the plaintiff to the above four questions was
an unqualified
"No".
14.
In
its replication to the defendant's amended plea the plaintiff
pleaded that in the event it is found that the only agreement
between the defendant and Toulouse was the agreement of October
2011, that the plaintiff was the effective cause of the conclusion
of that agreement.
15.
The plaintiff also pleaded in its replication that although it was
not licenced to formally represent rugby players in France,
it made
use of a licenced agent to represent its rugby union players in that
country. The plaintiff further pleaded that it was
not obliged to be
a licensed agent to represent rugby players in France.
16.
At the inception of the trial, Mr Uys, appearing for the defendant,
raised an exception against the plaintiffs particulars of
claim on
the basis that it did not disclose a cause of action and that it was
bad in law. The grounds on which the exception is
based can be
summarised as follows:
The
first ground was that the plaintiff was not entitled to hold the
defendant liable on the contract after it was terminated by
the
defendant. It was contended that the defendant, as principal
"may
freely terminate the authority conferred upon an agent. . . even if
the mandate purports to be irrevocable."
It
is difficult to follow the defendant's reasoning in this regard. The
plaintiff clearly set out the basis for its claim. The defendant
was
sufficiently informed what the plaintiffs cause of action was to
enable him to plead what he did. The submission that the plaintiffs
particulars of claim was therefore bad in law was clearly without
substance.
The
second ground of exception was that the agreement relied upon by the
plaintiff was not clear and unambiguous. This ground was
based
thereon that the contract provided that the plaintiff had the
exclusive right to represent the defendant whilst the plaintiff
subsequently, in its replication, conceded that it made use of an
agent in France.
The
contention that the plaintiffs averments in that regard was bad in
law and that it did not disclose a cause of action, was evenly
without merit. Although this ground may be a defence on the merits,
it is clearly not a ground for exception as contended by the
defendant. Thirdly the defendant contended that the plaintiff
endeavoured to make out a new case in pleading in the replication
that it was the effective cause of the agreement the defendant
admitted he concluded with Toulouse in October 2011. In this regard
it was submitted that the defendant was "
ambushed"
by
the plaintiff's new averment. In my view this ground was evenly
without substance. The issue of the contract between the defendant
and Toulouse concluded in France was in fact fully addressed in the
defendant's plea.
17.
The
exception was not well taken and was dismissed. I indicated at the
time that I would consider costs of the exception at the
end of the
trial.
18.
The plaintiff adduced the oral evidence of Mr Laurent Quaglia, Mr
Abt's agent in France at the relevant time, and Mr Abt.
After the
plaintiff closed his case the defendant applied for absolution. At
the time I mentioned that several issues of law
and fact were in
dispute, this included the interpretation of certain terms of the
agreement, and that it appeared that the plaintiff
has proved a
prima
facie
case.
The application for absolution was accordingly refused. The
defendant then closed his case.
19.
During argument Mr Rebelo submitted that in refusing absolution on
the basis that the plaintiff has proved a
prima
facie
case,
it follows that the plaintiffs case became conclusive after the
defendant has closed his case without adducing any evidence.
This
argument was without merit.
20.
The criterion regarding absolution was stated in
GASCOYNE
v PAUL & HUNTER
1917 TPD 170
and
many subsequent decisions. The test at the end of the trial is
whether the plaintiff has proved its case on a preponderance
of
probabilities. I deem it unnecessary to say anything further about
this issue.
21.
It is however clear that the only oral evidence to be considered,
although challenged during cross examination, is the evidence
adduced
on behalf of the plaintiff.
22.
Mr Quaglia's evidence can be summarised as follows. He is an
authorised agent representing clubs and rugby players in France.
Only
French speaking agents in France are authorised to act as agents. He
was Mr Abt's agent in France at the relevant time. He
knew about the
defendant but has never met him. Although he corresponded with
Toulouse in regards to the defendant, he was not
involved in any
negotiations with Toulouse as far as the defendant is concerned. He
testified that the agent introducing a player
to a rugby club is
entitled to remuneration as agreed upon with the club. The agreement
in regards to this fee does not involve
the player and is paid by the
club after expiration of the player's contract with the club. When
another agent is involved, like
what would have been the case with Mr
Abt, the agent in France would share the amount paid by the club on a
fifty- fifty basis
with the other agent. In 2011 after having heard
that Toulouse had contracted the defendant and that another agent in
France was
involved, he informed Mr Abt.
23.
Mr Abt is the only director of the plaintiff, a limited company
registered in the United Kingdom. He confirmed that he entered
into
the agreement on behalf of the plaintiff. Mr Abt conceded that he was
not personally authorised to enter into any agreement
with a rugby
club in France. He however contended that nowhere in the agreement
between the plaintiff and the defendant did it
provide that the
plaintiff was not permitted to make use of an agent in France for the
purposes of contracting with a French Club.
This is exactly what
would have happened in the case of the defendant. The plaintiff
merely made use of Mr Quaglia's services as
a registered agent in
France. The agreement between the plaintiff and the defendant was at
no stage assigned or transferred to
Mr Quaglia. Mr Abt said he
corresponded with Toulouse about the defendant and that he informed
defendant that representatives of
Toulouse would come to South Africa
to recruit rugby players. He later became aware that the defendant
has negotiated a contract
with Toulouse and that defendant had
entered into an agreement with Toulouse. Mr Abt contended that the
fact that the defendant
negotiated the contract with Toulouse was
already a breach of the agreement between the plaintiff and
defendant. When he heard
about the agreement with Toulouse he called
defendant. At first defendant denied that he entered into a contract
with Toulouse.
The defendant became aggressive and the conversation
was terminated. On 28 March 2011 Mr Abt received an e-mail from
defendant
informing him that the agreement was cancelled with
immediate effect.
24.
At first blush it appeared that this was a simply a case where the
defendant breached the agreement between himself and the
plaintiff
and that defendant should be liable for any contractual damages
suffered by the plaintiff.
25.
However, taking into consideration the defendant's plea,
inter
alia
challenging
the plaintiff's authority to act as an agent in France, it transpired
that several issues of law came into play. The
relationship between
the plaintiff, represented by Mr Abt, and the defendant was clearly
that of principal and agent
26.
"Agency"
includes
the following:
"One
of the meanings in which the expression is employed is that of an
agreement in terms of which one person, styled the agent,
performs
some task for another, called the principal, in connection with the
conclusion of a juristic act by or for the principal.
In this meaning
"agency" is simply a contract by which the principal and
the agent create rights and obligations inter
se. As such it belongs
to the category of contracts known as mandate or mandatum in Roman
Dutch Law. Even if the task to be performed
by the agent is the
conclusion of a juristic act on behalf of or in the name of the
principal, the contract remains a contract
of mandate governed by the
rules applicable to contracts of mandate in general." See LAWSA,
First Reissue, Volume 1,
par 100.
27.
The
relationship between a principal and his agent is personal. The agent
may not, in circumstances where there is personal confidence
reposed
and special skills required, without consent of his principal,
deligate his mandate to another sub-agent. See
TURKSTRA
v KAPLAN 1953(2) SA 300 (T)
at
304. The plaintiff was not authorised by the defendant to delegate
his mandate to any other person.
28.
The maxim
delegatus
delegare non potest
is
a common law principle creating a presumption against the delegation
of powers. It is still part of our law. See
CHAIRMAN,
BOARD ON TARRIFS AND TRADE v TELTRON (PTY) LTD 1979(2) SA 25 AD AT
34 C-E, and HOOSEN NO AND OTHERS v DEEDAT AND OTHERS
[1997] 3 All SA
32
D at 37
Accordingly
the plaintiff bears the onus to prove, if there was in fact a
delegation of powers, that it was within its mandate.
29.
lt is in any event trite, and an inherent principle that, in the
event of the agent being authorised to sub-delegate his contractual
mandate, that the sub-agent can never be empowered to do something
the agent could not do or was not entitled or empowered to
do. The
plaintiff, or Mr Abt could not mandate a sub-agent to enter into
negotiations with Toulouse in view of the fact that
neither the
plaintiff nor Mr Abt was licensed to do so. They were precluded from
transferring a right they did not have.
30.
In
this case Mr Abt clearly stated that the agreement between the
plaintiff and the defendant was not delegated or transferred to
Mr
Quaglia, although Mr Quaglia was the plaintiff's agent in France.
31.
It was submitted by Mr Rebelo, on behalf of the plaintiff, that the
wording of the contract did not exclude the plaintiff's
right to
appoint a sub-agent in France. Mr Uys, on behalf of the defendant, on
the other hand, pointed out the contract made no
reference to even
the possibility of the appointing of a sub-agent in France at all.
The agreement provides that Mr Abt was at
all relevant times
personally mandated to act on behalf of the defendant. The agreement
specifically stated that the defendant
was not entitled to employ
anybody else as agent or to enter into any negotiation or agreement
himself
32.
Although this issue was not specifically pleaded by the defendant, or
addressed in so many words, what is clear is that the
defendant
challenged Mr Abt's authority to act as an agent in France. This
challenge is consistent with the conceded factual situation
in
regards to the plaintiffs lack of
locus
standi
in
France.
33.
The fact remains that Mr Abt was not authorised to legally represent
the defendant in France. It was a factual impossibility.
It follows
that neither the plaintiff, nor Mr Abt, could hold the defendant to
the contract insofar it involved the defendant's
agreement with
Toulouse.
34.
That part of the agreement between the plaintiff and the defendant
mandating the plaintiff to contract with a French rugby club
on
behalf of the defendant, is clearly divisible from the other terms of
the agreement. It follows that the
"offensive"
clause
of the agreement should be discharged as far as it concerns this
case. The defendant was not bound by it and was entitled
to terminate
the agreement in so far it concerned the plaintiff's mandate to
negotiate agreements with rugby clubs France. It follows
that the
plaintiff is not entitled to hold the defendant liable for any
contract concluded by the defendant in France. The alleged
negotiations between the defendant and Toulouse prior to the
conclusion of the contract in November 2011 was not substantiated,
and was in any event part and parcel of the plaintiff's purported
agreement to conclude agreements with clubs in France. The defendant
was relieved of performance in terms of the agreement in respect of
the plaintiff's sole mandate regarding contracts in France.
See
BOB'S
SHOE CENTRE v HENEWAYS FREIGHT SERVICES (PTY) LTD 1995(2) SA 421 AD
at
428H.
35.
Mr Abt is the professional agent. He drafted the agreement. If he was
aware of the fact that he was not entitled to act on behalf
of the
Defendant one would have expected him to include a clause in the
agreement addressing the issue. He failed to do so. The
defendant is
not to be blamed in that regard. It is indeed, as submitted by Mr
Uys, a matter of
caveat
subscriptor.
The
plaintiff is bound by its own contract. However, if Mr Abt, at the
time the agreement was signed, was unaware of his legal status
in
France pertaining to his right to represent the defendant, a possible
situation of mutual mistake, he has only himself to blame
and cannot
hold the defendant liable to the terms of the agreement.
36.
Consequently the plaintiff has no cause of action against the
defendant in this matter.
37.
In view of the aforesaid finding I deem it unnecessary to consider
whether the plaintiff has succeeded to prove the quantum
of its
alleged damages, if any. The evidence adduced by the plaintiff in any
event proved that the plaintiff at the end of the
day would only have
been entitled to 50% of the amount paid out by the particular club to
the agent in France. The argument that
the quantum of the plaintiffs
averred loss should be the full amount which would have been paid out
by the club, was not substantiated.
The evidence pertaining to what
amount would have been paid out by the Toulouse in the case of the
defendant was clearly lacking.
The plaintiff bore the onus. In this
regard it in any appears that the agreement, insofar it concerns the
plaintiff's fees payable
by the defendant if the defendant would have
been employed in France, is in stark contrast with the fact that the
plaintiffs fees
would have been paid by the specific rugby club and
not the player. The argument on behalf of the plaintiff, namely that
the agreement
in that regard provided security to the plaintiff, is
fallacious. The agreement was drafted by Mr Abt without providing for
the
situation in France. In view of the above the application for the
amendment of the plaintiff's figures regarding the quantum is
dismissed.
38.
I have pointed out that that defendant's exception at the inception
of the trial was not substantiated at all. The defendant
should
therefore bear the costs. I am however not prepared to grant penalty
costs in the circumstances. It cannot be said that
the exception was
mala
fide.
39.
I have been informed by both counsel that costs were reserved in
respect of the application regarding the security issue.
The
decision in that application favoured the defendant. I considered
the situation and concluded that the plaintiff should be
ordered to
the pay the reserved costs. The plaintiff was unreasonable in its
conduct and the defendant was compelled in the circumstance
to lodge
that application.
40.
Pertaining to the case in hand I was urged by counsel, arguing their
respective cases, that penalty costs should be allowed.
I am not in
agreement. After having considered all the facts and the arguments
advanced by counsel, especially that on behalf
of the defendant, I
could not find any persuasive reason to grant penalty costs against
the plaintiff.
41.
Accordingly the following order is made:
1.
The plaintiffs claim is dismissed with costs;
2.
The defendant is ordered to pay the wasted costs occasioned by the
exception lodged by the defendant, heard on 5 November 2013.
3.
The plaintiff is ordered to pay the reserved costs of 22 July 2013
pertaining to the Rule 47(4) application.
A
J BAM
ACTING
JUDGE OF THE HIGH COURT
14
November 2013