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[2013] ZANCHC 4
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Steenkamp NO and Others v C.A du Toit Central (Edms) Bpk (CA&R 109/11) [2013] ZANCHC 4 (11 February 2013)
25
IN THE HIGH COURT OF SOUTH AFRICA
NORTHERN CAPE HIGH COURT, KIMBERLEY
Case number: JA 78
CASE No: CA&R 109/11
Delivered: 11/02/2013
Case number: JA 78/10
BENITA STEENKAMP N.O
.................................................
1
ST
APPELLANT
LUKAS MARTHINUS STEENKAMP N.O
........................
2
ND
APPELLANT
RACHEL VAN DER MERWE N.O
....................................
3
RD
APPELLANT
GERTRUDA MAGDALENA GRUNDLINGH N.O
..........
4
TH
APPELLANT
and
C.A. DU TOIT CENTRAL (EDMS)BEPERK
........................
RESPONDENT
Coram: Tlaletsi J et Mamosebo AJ
JUDGMENT
Tlaletsi J,
Introduction
[1]
This is an appeal against a decision of the
magistrate sitting in the Upington district court in an action
instituted by the respondent
C.A Du Toit Central (Pty) Ltd, a company
registered in terms of the company laws of the Republic of South
Africa. The action was
instituted against the appellants in their
capacities as the trustees of the Belurana Family Trust, a trust also
registered in
terms of the laws of the republic under reference
number IT 43/2003.
[2]
In the action the respondent sought judgment
against the appellants for delivery of certain items listed on
Annexure “A”
to the summons alternatively payment of the
amount of R12 775.00, alternatively an amount of R23 328.00 together
with interest
on the said amount a
tempore morae
. The second
prayer was for payment of the amount of R43 073-94 together with
interest on the aforesaid amount plus costs of suit.
The action
arises from a transaction involving a sale of immovable property to
the respondent by the Belurana Family Trust.
The pleadings
[3]
The respondent’s pleaded case (as
amended) is briefly as follows:
3.1. Clause 14 ofthe written sale agreement entered into
by the parties does not set out the correct terms of the parties’
agreement as it incorrectly refers to “
alle meubels in
woonstel+breekgoed
” (all furnitures in the apartment
+crockery).
3.2. Clause 14 should have included the following
handwritten addition thereto: “
Wat sal linsluit die algehele
inhoud van die betrokke eiendom soos op datum van besigting,
alternatiewelik ondertekining van die
ooreenkoms.”
3.3. The incorrect description and/or qualification of
the movable items as referred to in clause 14 of the written sale
agreement
was brought about by a common mistake by the parties and
that the parties signed the agreement on the
bona fide
but
mistaken belief that it sets out the true or correct agreement of the
parties.
3.4. That in terms of clause 14 of the agreement
(Annexure “A”) a specific, alternatively a tacit, further
alternatively
an implied term of the agreement that in addition to
all the built-in or other fittings, floor mats, curtain pelmets,
lampshades,
electrical fittings, and the entire contents of the
apartment as on the date of viewing, alternatively the date of
signature of
the agreement, were all part of the subject matter of
the sale agreement.
3.5. That the respondent complied with all its
obligations in terms of the agreement, including payment of the
purchase price. As
a result, the property was transferred into the
respondent’s name on 11 November 2004.
3.6. That the appellants failed to comply with their
obligations in terms of the agreement by failing and or refusing to
deliver
to the respondent the aforesaid property in a condition that
was agreed to in the sale agreement.
3.7. The respondent is demanding compliance by the
appellants with the terms of the agreement by delivering the items
due to it
as agreed to in Annexure “A”.
3.8. In the event that it is found that the appellants
are not in possession of the said items or not in a position to
deliver the
aforesaid items, in that event payment of an amount of
R12 775.00 by the appellants which represents a fair and reasonable
value
of the said items.
[4]
The respondent’s
second claim is as hereunder.
4.1. The respondent contends that it was at all times
known to the appellants that the respondent and its director who
acted on
behalf of the respondent at the time of the conclusion of
the agreement, was domiciled in Bloemfontein. That it was also
brought
to the attention of the appellants that the said property was
purchased for the purpose of, among others, hiring it out to holiday
goers and consequently it was within the contemplation of the parties
at the time of the conclusion of the agreement that:
4.1.1 In the event of the appellants breaching the
agreement, it would be necessary for the respondent’s director
to travel
from Bloemfontein to Mosselbay in order to establish the
extent of the breach and the damages, if any. It was further within
the
contemplation of the parties under the circumstances that the
respondent would not be in a position to hire out the property for
the same value in the event of appellant’s failing to comply
with their part of the agreement.
4.1.2 As a result of the appellant’s conduct as
set out above, the respondent suffered damages in that it was
necessary that
the respondent’s representative during the
period 16 November 2004 until 19 November 2004 to incur costs and
disbursements
in order to determine the nature and extent of the
appellants’ breach in the amount of R43 079.94.
[5]
The respondent is therefore claiming
rectification of the written sale agreement(Annexure “A”)
by including the following
handwritten words in clause 14: “
wat
sal insluit die algehele inhoud van die betrokke eiendom soos op
datum van besigting, alternatiewilik ondertekening van die
ooreenkoms”
“A”, alternatively payment of the
amount of R12 775.00 together with interest on the said amount a
tempore morae
; payment of the sum of R43 073,94 together with
interest on the aforesaid amount a
tempore morae
, and costs of
suit.
[6]
The appellants’Plea to the respondent’s
particulars of claim (as amended) may be summarised as hereunder:
6.1 They admit that annexure “A” did not
reflect the entire terms of the sale agreement between the parties.
However,
the broad, vague and unenforceable stipulations in clause 14
were immediately rectified by telefax in order for it to reflect the
correct terms of the agreement between the parties and that the said
rectification was specifically, alternatively tacitly accepted
by the
respondent.
6.2 That the written sale agreement initially
incorrectly referred to all the furniture in the dwelling/apartment
plus crockery
(breekgoed). This mistake was rectified by first
appellant with a list of all movable assets which were part of the
agreement.
6.3 That there was never a
consensus
between the
parties that all furniture and crockery without qualification, would
be included whether as a specified, alternatively
tacit, or implied
term of the sale agreement.
6.4 The appellants therefore deny that they failed to
comply with their obligations in term of the agreement between them
and the
respondent. They further deny that the respondent is entitled
to payment of the amounts of R12 775.00 or any amount representing
damages suffered by the respondent.
Factual Background
[7]
For a better understanding of the issues it
is necessary that a brief chronology of the events leading to the
dispute be set out.
This information is obtained from the pleadings
as well as the evidence tendered at trial and is mostly common cause.
[8]
Mr Van der Merwe (“Van der Merwe”)
is a director of the respondent private company andheat all material
times resided
in Bloemfontein. He had an interest in acquiring
property in the Western Capecoast. Hewas referred by a friend to a
certain Mr
Bobby van Schalkwyk(“Van Schalkwyk”) who is an
estate agent in Mosselbay. Van der Merwe phoned Van Schalkwyk and
informed
him that he was looking for residential properties which
were fully furnished and ready for immediate hiring out for holiday
purposes.
He mentioned that the property he wanted should be a
guesthouse typeand be situated in Mosselbay.
[9]
On 2 September 2004 Van Schalkwyk phoned
first appellant and advised her that he had a person that was
interested in purchasing
a residential property with its furniture
for purpose of immediate hiring out. He enquired whether she would
allow him to market
her property for sale purposes. First appellant
agreed to Van Schalkwyk marketing their property. Van Schalkwyk
enquired from first
appellant what price was she willing to sell her
property for. First appellant replied that they wanted an amount of
R1 250 000.00
for the property. She further informed him that she
wanted an additional amount of R80 000.00 for the furniture. The
property under
discussion and which is the subject matter of this
appeal is De Valle 21 and is situated in Mosselbay.
[10]
On 2 September 2004 Van der Merwe travelled
from Bloemfontein to Mosselbay where he met Van Schalkwyk for the
first time. Van Schalkwyk
took Van der Merwe around and showed him
about 20 residential properties which were on the market. In the
process Van der Merwe
took detailed photographsof both the inside and
outside of the houses and premises of the properties shown to him.
His intention
was to later make time and go through his photographs
and compile a shortlist of the properties he would consider for
purchase.
[11]
The following day on 3 September 2004 Van
der Merwe phoned Van Schalkwyk and advised him that there were
properties out of those
he saw the previous day that he wanted to
inspect. The properties in question were De Valle 21 and two others.
The two went to
inspect thesaid properties. Van Der Merwe was
impressed by De Valle 21 as it gave him a feeling of a
guesthouse,[
wasexpensiv
e] and ready for immediate hiring out.
He made it known to Van Schalkwyk that De Valle 21 was his first
choice. Van der Merwe made
an offer to purchase the property at an
amount of R1 180 000.00 including its contents
(“met die
meubels, die fittings, die inhoud, alles was daarin is”
).
Eighty thousand Rand(R80 000.00) of the amount offered was for the
contents which was in line with the first appellant’s
instruction to Van Schalkwyk.
[12]
Van Schalkwyk completed a
pro forma
offer to purchase which constituted a sale agreement upon acceptance
for De Valle 21. Clause 14 of the offer to purchase which
is in issue
in casu
stated that:
“
Benewens alle ingeboude of ander vaste
toebehore, volvloermatte, gordynkappe, Lampskerms en toebehore van
vaste elektriese ligte,
word die volgende toerusting as deel van
hierdie ooreenkoms beskou…”
Van Schalkwyk inserted the following words in clause 14
in his handwriting “
Alle Meubels in Woonstel
”. Van
der Merwe read the document and added the following to clause 14 “
+
breekgoed”.
[13]
Van der Merwe initialled the handwritten
part of clause 14 and signed the document. Van Schalkwyk also
initialled clause 14 and
signed as a witness. Van Schalkwyk
telephoned the first appellant and informed her that Van der Merwe is
making an offer for the
property with the entire contents because he
wanted to hire it out with immediate effect. He told her that the
offer made was an
amount of R1 180 000.00. The first appellant
advised Van Schalkwyk that there were clothes and personal items in
the cupboards
which could not be included in the sale. Van Schalkwyk
responded that Van der Merwe was prepared to conclude the transaction
only
if he could purchase the property with its entire contents
otherwise he would not be interested.
[14]
It is not disputed that first appellant did
not wish to accept the offer of R1 180 000.00. She wanted R1250
000.00 for the apartment
and R80 000.00 for the furniture. She
discussed the matter with her husband, the second appellant. The
latter persuaded her to
accept Van de Merwe’s offer and
mentioned that she must not be petty; that their new apartment was
not yet complete and that
there was no place to take the furniture
to; and that the purchaser needed the furniture to hire out the
property.
[15]
First appellant telephoned Van Schalkwyk and
advised him that shewas accepting Van der Merwe’s offer. She
further informed
him that as compensation for the “
low
offer”
, she wanted to have the use of the property free of
charge with her family during the period 2 to 14 January 2005. She
requested
that this condition be included in clause 19 of the
agreement. It is common cause that Van Schalkwyk conveyed what she
was told
by first appellant to Van der Merwe who accepted the
condition. Van Schalkwyk consequently inserted the following words in
clause
19 as a special condition:
“
19 SPECIALE VOORWAARDES
Hierdie Koopkontrak is onderhewig aan die volgende
spesiale voorwaardes naamlik: verkoper kan gratis vakansie hou in
eenheid vanaf
2 to 14 January 2005.”
Van Schalkwyk and Van der Merwe initialled the inserted
clause 19.
[16]
On Friday 3 September 2004 at 16h36 Van
Schalkwyk sent the signed offer to purchase to the first appellant by
telefax. The first
appellant did receive the offer to purchase.
According to her she understood the offer to indicate that the
respondent wanted to
buy the apartment with its contents which were
included in the amount offered. She then phoned Van Schalkwyk and
informed him that
she did not like the “
wording”
or that she was not happy with the description and she was going to
send him a list of what they were prepared to leave in the
house
which were part of the house and which were not their personal
property. She mentioned further that Van Schalkwyk replied
that he
did not believe that Van der Merwe would be interested in what she
was saying because he wanted everything. She testified
further that
she took the offer to the second appellant and informed him that she
was not satisfiedwith the description. They discussed
it and they
thereafter signed.
[17]
On the same day, 3 September 2004, first
appellant remitted the signed offer by telefax to Van Schalkwyk. The
offer was signed
by the two on behalf of the trust and at that stage
they had not effected any changes in the document. The parties agree
that at
this stage a binding agreement had been concluded between
them for the sale of the property. Van der Merwe returned to
Bloemfontein.
It however seems that first appellant was not satisfied
with what she regarded as a “swaak” (weak) transaction.
She
testified that she was also dissatisfied with her husband’s
decision. He however had a final say in the matter. She mentioned
that her husband only wanted to sell the apartment and was relieved
that he had money for the new apartment.
[18]
It is common cause that on 5 September 2004
Van Schalkwyk received an agreement with clause 14 amended by first
appellant with
the following handwritten words: “
sien
aangehegte lys”(see the attached list)
per telefax from
first appellant. There was however no list attached to the document.
Van Schalkwyk informed first appellant that
he was going to send the
document to Van der Merwe and that he was not sure if he would sign
it as he was not obliged to do so
since there was already a binding
agreement in place between him and the seller. Van Schalkwyk
discussed the matter with Van der
Merwe and the latter informed him
that the changes were not acceptable to him. He reiterated that he
was buying the property with
its entire contents.
[19]
On 15 September 2004 first appellant
enquired from Van Schalkwyk whether the amendment was acceptable to
Van der Merwe. Van Schalkwyk
advised her that the agreement was
finalised and that the amendments were not accepted by Van der Merwe.
On 16 September 2004 Van
der Merwe received a telephone call from the
attorney responsible for the transfer of the property at the firm
Oosthuizen, Marias
& Pretorius. The attorney informed Van der
Merwe that there was a list which is an inventory of the apartment
that Van der
Merwe had to sign and fax it back to him if he found it
complete. The attorney then sent the list (Annexure C1 to C7) to Van
der
Merwe.
[20]
Upon receipt of the inventory, Van der Merwe
phoned the attorney and informed him that he was unable to compare
the inventory with
the contents of the apartment as he was in
Bloemfontein. He further told him that there is a contract in place
for the sale of
the apartment with all its contents and that he was
prepared to sign the inventory but could not confirm if it
represented what
was in the apartment as at 2 September 2004.
[21]
After speaking to the attorney, Van der
Merwe phoned Van Schalkwyk and reported to him what the attorney said
to him. He read the
list to him and said that to him it appeared
reasonably complete. Van der Merwe signed the inventory and sent it
back to the attorney
per telefax on 16 September 2004. The inventory
was sent under cover of a letter (Exhibit “E”) in which
he confirmed
inter alia
, that according to the agreement all
the furniture and “
breekgoed”
(crokery) in the
apartment as at 2 September 2004 were part of the sale; that the
contents as listed in the inventory were the
main reason for the
purchase of that property; that photographs were taken during the
visit to the apartment in the event that
clarification was required.
The attorney’s evidence was not tendered at trial and as such
Van der Merwe’s evidence
on this aspect is not contradicted.
[22]
On 30 October 2004 first appellant removed
several items with a bakkie from the apartment. The items included
some of the furniture
which was in the apartment. On 11 November 2004
the property was transferred to the respondent. Van Schalkwyk
received the commission
due to him as provided for in the agreement.
[23]
On 16 November 2004 Van Schalkwyk received a
telephone call from a certain Mrs Eilene Fourie who was a caretaker
at the De Valle
apartment block. She was to assist in hiring out De
Valle 21. She made a report about the activities that were taking
place at
the property. Van Schalkwyk drove to the property and found
a bakkie parked on the premises with furniture loaded on it. Mrs
Fourie
was also present. Van Schalkwyk chose not to confront first
appellant before he could establish from Van der Merwe whether any
arrangements had been made with him.
[24]
It is common cause that sometime later Mrs
Fourie phoned first appellant and accused her that “
die
woonstel se stertvere is nou uitgetrek”
(the apartment’s
tail feathers have been pulled out). Van Schalkwyk phoned Van der
Merwe to report what happened. He mentioned
that first appellant was
removing some items and also exchanging some of the items in the
apartment with others. Van der Merwe
confirmed that he had no
arrangement with the appellants to do what they were doing to his
property. He arranged that photographs
be taken of what was
happening. Photographs where taken and were sent to Van der Merwe.
[25]
Having perused the photographs Van der Merwe
phoned first appellant and informed her that he purchased the
apartment with the entire
contents and demanded that she return the
items removed from the apartment within 24 hours and to put the
apartment in the position
it was as at 2 September 2004. First
appellant responded by stating that she was at that moment in
Upington and not at Diaz Strand
(Mosselbay) and therefore unable to
comply with the demand.
[26]
On 16 November 2004Van der Merwe decided to
travel to Diaz Strand to see what changes had been made to his
property. He requested
his friend Mr Frank de Beer to accompany him
and assist him with the driving of the motor vehicle since he had to
return the following
morning. They travelled a distance of about 800
to 900 km and arrived at 20h00.
[27]
On arrival Van der Merwe discovered that
several furniture items as well as some of the crockery were missing.
Some of the furniture
were shifted around to close or make up for the
spaces created by those removed. He enquired from the tenants and
they confirmed
that they had not removed anything from the apartment.
Van der Merwe took photographs of the apartment to enable him to
compare
them with the photographs taken on 2 September 2004.
[28]
As agreed, first appellant and her family
had use of the apartment free of charge for the period 2 to 14
January 2005.
Judgment of the Court a quo
[29]
The district magistrate in his judgment
(both extempore and later in his reasons for judgment provided in
terms of Rule 51(1) of
the Magistrate’s Court Rules) recognised
the fact that clause 14 did not reflect the true agreement between
the parties and
that both parties sought rectification thereof. The
magistrate found the first appellant to have been an unsatisfactory
witness
who did not reply directly to questions put to her; that
questions had to be repeated in order to get simple answers from her;
she was evasive, contradictory and unimpressive. He recorded that the
first appellant conceded that she always wanted to establish
what the
intention of counsel was with his questions before she could answer
questions put to her. Her evidence was in so far as
it was in
conflict with the rest of the evidence rejected.
[30]
The magistrate found that first appellant
was (admittedly) aware when she received the offer that the
respondent wanted everything
included; was advised by her husband to
accept the offer as made and that the agreement was concluded on that
basis. Her actions
of removing some of the items from the apartment
were in conflict with the agreement and led to the respondent
suffering damages.
The magistrate found further that it was necessary
for Van der Merwe to travel from Bloemfontein to Mosselbay to
appraise himself
of what was happening; that it was expected of the
owner of the property to take steps to mitigate his damages. The
respondent
was granted proved general damages in the amount of R4
650.00 and special damages in the amounts claimed plus costs of suit.
The Appeal
[31]
The appellants have raised several grounds
upon which they are challenging the decision of the magistrate. A
summerythereofboil
down to: The magistrate erred by finding that:
there was
consensus
between the parties
regarding the items to be included in the sale agreement;
clause 14 be rectified in order for it to read “
totale
inhoud”;
the special damages suffered by the respondent was an
amount of
R4 650.00
general damages in the amount of
R43 073.94
be
awarded in circumstances where the respondent had not shown that the
damages were foreseeable and reasonable under the circumstances;
the matter was technical in nature and justified the
employment of senior counsel;
awarding subsistence, travelling and preparation costs
at a higher scale of costs provided in the Magistrate’s Court
rules;
by not rejecting the respondent’s claims; and
by not finding that the respondent failed to mitigate
its damages and failed to prove the quantum of its fair and
reasonable damages.
[32]
In this Court Mr FG Janse Van Rensburg who
appeared on behalf of the appellants contended that the respondent
should not have succeeded
with its claim for rectification as pleaded
seeing that there was never a meeting of the minds between the
parties as to which
movable property was in fact part of the sale
agreement. He submitted that it was common cause that it was never
the intention
of the parties to include items of a personal nature.
The real dispute between the parties is their interpretation of what
constituted
the items of a personal nature. He argued that Van der
Merwe signed the list that was sent to him by the attorney
responsible for
the transfer of the property and despite having the
photographs he took of the property to compare and having had a two
weeks period
to consider what was meant by the contents of the
apartment. He concluded that the magistrate should have found that
the written
sale agreement was indeed rectified by the addition of
the words “
aangehegtelys”
and the appeal should
therefore succeed.
[33]
The first appellant was the sole witness for
the appellants at trial. As indicated above, she was the only person
who had direct
dealings with Van Schalkwyk (the estate agent) and Van
der Merwe on behalf of the respondent. In her evidence first
defendant raised
what may be referred to as defences to the
respondent’s allegations and evidence. The defences she raised
amount to: the
document that she signed was not a binding agreement
but merely a process of negotiations; the signed offer was not a
contract
but merely a temporary document; the written agreement that
she signed is not valid because she could not sell something that did
not belong to her; although she signed the agreement it was part of
and conditional on the list of the contents that she would
be
prepared to allow the respondent to have; although she signed the
agreement, there was a counter offer from her side to the
effect that
only the contents of the apartment which were on the list were to be
part of the sale agreement; that Van der Merwe
by signing the list
accepted her counter offer; that at the time of signature of the
written agreement there was no
consensus
or meeting of the
minds between the parties; finally, that the appellants are entitled
to an order for rectification of clause
14 of the agreement because
she and Van der Merwe agreed that only the contents of the apartment
which were on her list were part
of the sale but due to a common and
bona fide
oversight the reference to the list was omitted in
the wording of clause 14.
[34]
The reasons advanced by first appellant why
she regarded the document she signed as a temporary document and
merely a step in the
negotiations process are that the ink in a fax
document does not last long and that a fax cannot be used as an
original document.
In my view, the reasons are baseless because it
would not have been necessary for her to sign the document if she
believed that
the ink would not last long and that it is not an
original document. What is important in my view, is that her
signature on the
document signified and confirmed that she accepted
and agreed to what was stated in the document. There was never any
discussion
that there would be an opportunity in future for another
document to be prepared and for the parties to come together to sign
the
document. The document she signed stated in unambiguous terms
that the offer became a binding agreement upon signature of the
document.
Furthermore, she signed the document after having
discussions with her husband who is her co-trustee about the contents
of the
agreement. Lastly, first appellant was during
cross-examination described by her legal representative as a person
with experience
in business and who was thorough and careful.
Therefore, she must have had a clear understanding that she was
accepting the terms
of the agreement by signing the faxed document.
[35]
There could not have been
consensus
between the parties that the contents of the apartment should be
limited to the list prepared by first respondent. In the first
place
when the discussions took place, up until the appellants signed the
offer to purchase on behalf of the trust, there was no
mention that a
list would be prepared and submitted later. Secondly, it was only two
days later after the signature of the offer,
when there was already a
binding agreement in place that first appellant introduced the words:
“
See the attached list.”
Even at the stage when
she faxed the document to Van Schalkyk, the list was not attached,
meaning that it was not compiled yet.
Thirdly, first appellant
conceded that what she wrote on the document was an afterthought as
she was not satisfied with what her
husband had persuaded her to
accept. This concession was also made in her affidavit in the
application for
mandement
van spoilie which preceded these
proceedings.
[36]
First appellant’s allegations that she
did mention to Van Schalkwyk before she signed the offer that a list
would be prepared
is highly improbable. The allegation is
contradicted not only by Van Schalkwyk but by the documents, her own
evidence and the objective
facts of the case. Furthermore, she could
not explain why she did not include the list in the document before
she signed and later
faxed it to Van Schalkwyk. Instead what was
included is what Van Schalkwyk confirmed that she requested that it
be included that
she would have free holiday with her family in lieu
of the low offer she accepted for the property.
[37]
The first appellant’s introduction of
the list or inventory was an attempt to unilaterally vary the terms
of the agreement.
Her unilateral conduct is against clause 13 of the
agreement which states that the agreement is the sole agreement
between the
parties and any changes or variations thereto shall be of
no force or effect unless reduced to writing and signed by both
parties.
It cannot be said that when Van der Merwe signed the
list/inventory he was agreeing to the variation or rectification of
the agreement.
It is clear from the evidence that it was never his
intention to do so but that he was of the view that it complied with
what they
had agreed to namely, the inclusion of the entire contents
of the house and that the list was only required for the purpose of
the registration of the transfer of the property at the Deeds Office.
[38]
It is first appellant’s evidence that
clause 14 before the attempt to amend it, meant that the respondent
was entitled to
the contents of the apartment without limitation. In
her own evidence she on two occasions (on 30 October and 16 November
2004)
removed some of the furniture which was in the apartment when
it was viewed by Van der Merwe on 2 and 3 September 2004. She did
not
inform either Van der Merwe or Van Schalkwyk and Mrs Fourie that she
intended to remove some items from the apartment. When
she removed
the items she already knew that Van der Merwe rejected her attempt to
unilaterally change the terms of the agreement.
There was no doubt in
her mind at the time that the respondent wanted the apartment with
its entire contents. When requested by
Van der Merwe to return the
items she removed, she refused to do so. Her actions in removing the
items from the apartment amounted
to breach of the sale agreement.
[39]
The purpose of a claim for rectification is
to formulate the parties written agreement so that it should conform
with the intention
of the parties
(Levin v Zoutendijk 1979(3)
SA 1145(W) 1147-1148
).
In
casu
, the common
cause facts are that at the time when the agreement was signed i.e,
on 3 September 2004 there was no doubt in the mind
of the appellants,
Van der Merwe and Van Schalkwyk that the respondent purchased the
property with the entire contents of the apartment.
Although first
appellant was not satisfied with this state of affairs, she was
convinced by her husband to accept the offer as
it was made. The
parties understood clause 14 to mean that.
[40]
The appellants pray that Clause 14 be
rectified to read:
“
Benewens alle ingeboude of
ander vaste toebehore, volvloermatte gordynkappe, +lampskerms en
toebehore van vaste elektriese ligte,
word die volgende toerusting as
deel van hierdie ooreenkoms beskou: alle meubels in woonstel en
breekgoed, soos per aangehete lys.”
The difficulty with the appellants’ claim for
rectification is that they allege that there was no consensus between
the parties
as to precisely which movable items were part of the sale
agreement. In the absence of
consensus
between the parties, a
claim for rectification cannot succeed since doing so would amount to
a construction of a new contract for
the parties. In my view the
issue in dispute, is not what were the items of a personal nature
which were in the cupboards and some
clothing that were to be
excluded from the contract. I say so because those items could not
have been included in the agreement
since they were not part of the
guesthouse business. These items could not have attracted and or
induced Van der Merwe to purchase
the apartment for the purpose he
wanted it for.
[41]
On the other hand the respondent’s
claim for rectification is that clause should read:
“
Benewens alle ingeboude of
ander vaste toebehore, volvloermatte, gordynkappe, lampskerms en
toebehore van vaste elektriese ligte,
word die volgende toerusting as
deel van hierdie ooreenkoms beskou: alle meubels in woonstel plus
breekgoed wat sal insluit die
algehele inhoud van die betrokke
eiendom soos op datum van besigting en ondertekening van die
ooreenkoms.”
[42]
All the objective facts as pointed out above
support the respondent’s claim that on 3 September 2004 when
the agreement was
signed there was consensus between the contracting
parties that the property was sold with its contents as it was on 2
and 3 September
2004 and that due to bona fide oversight on the part
of contracting parties they accepted that their intention was
captured in
clause 14 as it then was. The addition of the words to
the effect that the contents as at the day of viewing or signature
would
correctly reflect what the parties agreed to. It would not
amount to making up a contract for the parties.
[43]
I am therefore satisfied that the appellants
are not entitled to rectification of the agreement and that they have
breached the
agreement by removing some of the movable items which
were in the apartment on the 2
nd
and 3
rd
September 2004. The respondent is entitled to rectification of clause
14 as shown above.
[44]
As regards damages the appellant’s
grounds of appeal are that the magistrate erred by awarding special
damages as pleaded
by the respondent and ought to have dismissed the
respondent’s claim in this regard. It was contended on behalf
of the appellants
that the respondent had failed to prove that there
were special circumstances at the time of conclusion of the agreement
present
or drawn to the attention of the appellants to justify the
special damages as claimed and further that the respondent had failed
to show that the expenses incurred by Van der Merwe were reasonable;
and that the loss claimed was too remote and could not have
been
foreseen by the appellants.
[45]
In order for the respondent to succeed with
a claim for special contractual damages, it had to show that the
damages suffered must
have been in the contemplation of the parties
and that the contract must have been entered into on the basis of the
parties’
knowledge of the special circumstances giving rise to
the damages. See:
Southern Enterprise Development,Fund Inc v
Industrial Credit Corporation Africa Ltd
[2007] ZAGPHC 293
;
2008 (6) SA 468(W)
; Holmdene
Brickworks (Pty) Ltd v Roberts Construction Co Ltd 1977 (3)SA 670
(A).
[46]
It is expected of an innocent party to
mitigate its damages, and the
onus
is on the defendant to
prove that the innocent party has not mitigated its damages. The
innocent part is not required to do more
than what a reasonable man
would do to mitigate his damages.
[47]
The respondent’s claim for special
damages is itemised on Annexure K5. The items are categorised as
telephone costs, travelling
costs per km tarrif; travelling costs per
hourly tarrif, hourly tarrif and diverse expenses. The evidence
presented by Van der
Merwe to support the items claimed is that he
had no option but to travel to Mosselbay in order for him to
ascertain the nature
and extent of the breach by the appellants; he
travelled by an Audi 2.7 motor vehicle at a specific tarrif; it was
necessary for
him to be accompanied by a friend to assist him to
drive the motor vehicle; that the friend was entitled to claim at a
particular
tarrif; that Van der Merwe charged his travelling time in
accordance with a tarrif prescribed in the government gazette for
consulting
engineers doing work for government; and telephone and
meals costs.
[48]
In awarding the special damages the trial
magistrate held that:
“
Indien verweerder nie die
bepalings van die kontrak verbreek het nie sou Mnr Van der Merwe nie
vanaf Bloemfontein na Mosselbay gereis
het om hom te vergewis van wat
aan die gang is nie. Hierby moet daar ingedagte gehou word dat die
woonstel ten tyde van die gebeure
ook te huur was. Indien dit nie te
huur was nie en die verweerder by wyse van Mev Steenkamp die enigste
was wat by die woonstel
kon aandoen, kon daar dalk aangevoer word dat
dit nie vir hom nodig was om die rit te onderneem nie. Dit was egter
nie die geval
nie. Daar word tereg regtens van ‘n eienaar
verwag om stappe te doenom sy skade te beperk. Dit was dus nodig vir
Van der
Merwe om daarheen te reis. Aangesien daar niks tot die
teendeel aangetoon was rondom die uitgawes teweeggebring tot die reis
nie
word die gevolgskade ook toegestaan soos versoek.Koste volg die
suksesvolle party”.
[49]
It is clear from the record that the trial
magistrate did not apply his mind to the question whether Van der
Merwe was entitled
to claim damages based on his professional
capacity as a consulting engineer. The award for special damages was
simply granted
because it was claimed. It cannot be said that it was
within the contemplation of the parties that in the event of the
breach Van
der Merwe would incur such damages in his capacity as
consulting engineer. There is no link between his professional
capacity and
the transaction to purchase property. The respondent may
very well be entitled to some special damages but not in his capacity
as a professional engineer. The trial magistrate further failed to
consider whether all the expenses incurred including the mode
of
transport used and being accompanied by a friend were necessary. It
is also notable that Van der Merwe has claimed Value Added
Tax for
the amounts he charged. These issues which have been raised by the
appellants are relevant and cannot be decided on appeal.
It would
therefore be appropriate that the issues relating to special damages
be referred back to the trial court for determination.
[50]
As regards costs, the trial magistrate
simply ordered that costs should follow the result. He ordered that
costs should include
increased advocates costs, preparation, and
traveling and subsistence expenses. He did not considerwhether the
matter justified
the employment of senior counsel and also at an
increased scale or provide reasons for the special costs order. In my
view the
issues before the trial court were not such complex that
they justified the order granted. An appropriate order would have
been
to award party and party costs on the ordinary scale applicable
in the magistrate court since the respondent was successful in that
court. The trial magistrate therefore failed to apply his mind
properly when making the costs order.
[51]
In conclusion, the appeal should fail in so
far as the appellants seek rectification of the agreement in their
favour and the award
for general damages. The award granted was
agreed to by the parties. Their appeal as regards special damages and
the costs order
awarded by the trial magistrate should however
succeed.
ORDER
[51] In the result the following order is made:
1. The appeal against rectification of clause 14 is
dismissed. Clause 14 is rectified to read:
“
Benewens alle ingeboude of
ander vaste toebehore, volvloermatte, gordynkappe, lampskerms en
toebehore van vaste elektriese ligte,
word die volgende toerusting as
deel van hierdie ooreenkoms beskou: alle meubels in woonstel plus
breekgoed wat sal insluit die
algehele inhoud van die betrokke
eiendom soos op datum van besigting en ondertekening van die
ooreenkoms.”
2. The appeal against the award of general damages is
dismissed.
3. The appeal against the award of special damages in
the amount of R43 073.94 succeeds and the order of the district
magistrate
is set aside and the matter is referred back to the
district magistrate for reconsideration of the award for special
damages.
4. The award of costs is set aside and is substituted
with an award for costs on party and party costs on the ordinary
magistrate
court scale.
5. There shall be no costs on appeal.
_____________________
Tlaletsi J
Northern Cape High Court, Kimberley
I agree.
___________________
Mamosebo AJ
Northern Cape High Court, Kimberley
Appearances:
For the appellants: Adv F Van Rensburg
Instructed by: Elliot, Maris, Wilmans
& Hay
For the respondent: Adv P Fischer
Instructed by: Haarhoffs Inc.