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[2012] ZAGPPHC 351
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Mcapline and Others v Mashishimane Community Property Association and Another (2009/59675) [2012] ZAGPPHC 351 (6 December 2012)
NOT
REPORTABLE
IN THE NORTH GAUTENG HIGH COURT,
PRETORIA
Case
No: 2009/59675
DATE:06/12/2012
In
the matter between:
GILROY
CLEMENTS MCAPLINE
...............................................
First
Plaintiff
KEVIN
ANTHONY
HIRST
…........................................................
Second
Plaintiff
ARNOLD
PISTORIUS
...................................................................
Third
Plaintiff
AND
THE MASHISHIMANE COMMUNITY PROPERTY
ASSOCIATION
...............................................................................
The
First Defendant
THE
MINISTER OF LAND
AFFAIRS
..........................................
Second
Defendants
JUDGMENT
RANCHOD J
[1]
The three plaintiffs in this matter are cessionaries of a claim by
Gamevest (Pty) Ltd (Gamevest) against the First Defendant
(the CPA)
for the sale of certain game and movable property to the CPA. The
plaintiffs say in their particulars of claim that no
relief is sought
against the second defendant who is joined only to ensure that she
has knowledge of this action and in so far
as she may have an
interest in the matter.
[2]
It is common cause that during September 2006 Gamevest and the second
defendant entered into an agreement of sale in respect
of certain
immovable property constituting a nature reserve called "Croc
Ranch". The agreement of sale was entered into
pursuant to a
land claim in respect of the property in accordance with the
Restitution of Land Rights Act 24 of 1994
, as amended. The offer to
purchase the property was made by the second defendant. The second
defendant nominated the CPA as her
nominee in whose name the property
would be registered. The property was duly transferred into the name
of the CPA.
[3]
The CPA is an association registered in accordance with the
provisions of the Communal Property Association Act 28 of 1996.
[4]
On 22 April 2007 an agreement was entered into between Gamevest
represented by Attorney Jurgen Bekker (Bekker) and the Regional
Land
Claims Commissioner representing the second defendant. The regional
land claims commissioner was represented by Commissioner
Mashile
Mokono and Mr Shilote. The CPA was represented by its duly authorised
representatives. The agreement was reduced to writing
in a letter
dated 25 April 2007 by Bekker and signed on behalf of the CPA by its
duly authorised representatives. As this agreement
is central to the
dispute between the parties it is necessary to quote it at length.
The letter (which became the agreement when
it was signed by the
relevant parties) is dated 25 April 2007 and marked for the attention
of Mr Shilote. Of importance is the
fact that this letter was not
addressed to the CPA but rather to the regional land claims
Commissioner. The letter provides as
follows:
"Dear
Sir
RE:
LAND CLAIM ON CROC RANCH
We
thank you for the meeting arranged for this past Sunday 22 April 2007
at lOhOO on Croc Ranch between members of the Mashishimale
Community
Property Association ("the CPA") and Directors of Gamevest
(Pty) Ltd ("Gamevest").
We
particularly thank Commissioner Mashile Mokono and Mr. Riranzo
Shilote of your offices for their efforts in facilitating the
meeting
and conducting the meeting and for the guidance provided to both
parties.
We
record that the following agreement was reached subject to your
written confirmation:
1.
That the handover date from Gamevest to the CPA has been extended by
mutual consent to 30 May 2007;
2.
That a price has been agreed for the remaining game on Croc Ranch as
well as the moveable property and equipment in amount of
R2 500
000.00 (Two million five hundred thousand Rand) which shall exclude
the following items:
2.1.
The tractor and 4x4 vehicle of Mr. McAlpine;
2.2.
The game privately owned by Mr. Kevin Hirst;
2.3.
The guns owned by Mr. McAlpine;
2.4.
The personal belongs of Directors, employees and contractors of
Gamevest;
2.5.
Buffalo which are still on the farm but have been sold;
And
that Gamevest and/or Mr. McDonald will supply a full list of the game
and moveables purchased within three days from date hereof.
3.
That the rental, which is owed by Gamevest to the CPA is an amount of
R1 080 000.00 (One million and eighty thousand Rand) being
the rental
of R216 000.00 per month for five months being December 2006, January
2007 to April 2007 and that Gamevest is relieved
from paying any
further rental for May 2007 or any further period to which the
handover date may be extended.
4.
That R980 000.00 (Nine hundred and eighty thousand Rand) is to be set
off by agreement from the price of the moveables leaving
an
outstanding amount of R1 520 000.00 (One million five hundred and
twenty thousand Rand).
5.
That the CPA will liaise with professional hunter Sandy McDonald in
the next thirty days to finalise a business plan and a proposal
to
the board of Gamevest on how the outstanding balance of R1520 000.00
will be paid within a reasonable period.
6.
That of the remaining R100 000.00 (Hundred thousand Rand) owed by
Gamevest to the CPA, which has not been set off against the
payment
for the game and moveables, Gamevest undertakes to pay the reasonable
running expenses involved in operating the reserve
for the month of
May 2007 which shall include but not be limited to salaries, fuel,
maintenance, insurance and other necessary
expenses up to R100 000.00
and shall account to the CPA fully on these expenses and the balance
of funds not expended so shall
also be set off against the balance of
the amount owed on the game and moveables.
7.
That the retention monies currently held in an interest bearing
investment trust account by the transferring attorneys, Ramatwala
Lenyai Attorneys, shall be paid over immediately to Gamevest and/or
their attorney.
8.
That professional hunter, Sandy McDonald, of McDonald Hunting
Safari's will liaise with the office of the Regional Land Claims
Commissioner Limpopo in order to finalise a business plan for the
smooth takeover of the reserve which shall also include a proposal
to
Gamevest on paying the balance of the amount outstanding in respect
of game and moveables within a reasonable time.
9.
That the office of the Land Claims Commissioner Limpopo will assist
where and how it can Mr. McDonald in the obtaining the necessary
permits to facilitate that hunting on Croc Ranch can commence as soon
as possible on behalf of the CPA.
10.
That Mr. McDonald be issued a key for the main gate of the Croc Ranch
and that his employee living on the farm, the professional
hunter,
"Chris", also be issued a key for the main gate and take
responsibility for security on the farm.
11.
That two representatives of the CPA are also allowed to live on the
farm in order to satisfy the CPA that the running of the
farm is
conducted in satisfactory manner.
12.
That the Regional Land Claims Commissioner Limpopo has agreed to sign
a short addendum to the agreement of sale for Croc Ranch,
a copy of
which is annexed hereto as annexure "A" and which has been
signed.
13.
That the CPA has discussed granting to Mr. McDonald a management
contract in respect of the running of the reserve and the hunting
concession for a period of one year subject to a written agreement
being successfully concluded between the parties.
14.
The current status of the exemption permit for hunting and capture
will remain status quo as per instructions from the meeting
however,
the profits to be for the account of the claimants the
CPA/Mashishimale tribe. The permit will then be transferred to
a
designated responsible person from the tribe. This is to be
facilitated by the Department of Environmental Affairs and Tourism
in
Phalaborwa.
The
above points record what the parties have agreed to.
Kindly
provide your written confirmation that you are in agreement."
Subsequently,
the parties appended their signatures on the letter to signify that
it was the agreement.
[5]
It is not in dispute that the game and movables referred to in the
agreement were delivered by Gamevest to the CPA.
[6]
It is apparent from the contents of the letter, which constitutes the
agreement between Gamevest and the CPA, that the game
and movables
were purchased for a consideration of R2,500,000. After various set
offs and other adjustments the balance to be paid
by the CPA
according to the agreement was an amount of Rl,520,000 which was to
be paid "within a reasonable period".
The plaintiffs allege
that a reasonable time for the payment of the amount due to Gamevest
would be a period of six months calculated
from
30
May 2007. Hence, the full amount outstanding became due, owing and
payable by 30 November 2007.
[7]
Mr Bekker was the only witness to testify on behalf of the plaintiffs
while Mr Hendrik Malatji testified on behalf of the CPA.
[8]
The CPA filed a plea in abatement and pleaded over. The plea in
abatement was to the effect that the cedent (Gamevest) ought
to have
been joined as a party to the action. I dismissed the plea in
abatement with costs on the grounds that Gamevest no longer
has a
claim against the CPA and therefore had no interest in the matter
that would have entitled it to have been joined as a plaintiff
and
would have been, in fact, a mis-joinder. In any event, Gamevest had
already been de-registered. In any event, it was open to
the CPA to
have joined Gamevest if it thought it was necessary to do so.
[9]
The CPA admits that the agreement was signed by its duly authorised
representatives. Apart from that it denies the plaintiffs'
other
allegations and pleads that the agreement does not correctly reflect
the terms of the agreement insofar as it does not accord
with what it
sets out. The CPA has raised four main issues which are central to
the dispute between the parties as to when payment
for the balance of
the purchase price of the movables was to be made. First, that the
express, alternatively tacit, further or
alternatively the implied
terms of the agreement were that Gamevest would furnish the CPA with
a complete list of the game and
movables it purchased within three
days from 22 April 2007 but failed to do so. Second that Gamevest
failed to account to the CPA
for the running expenses for May 2007.
Third, that a business plan was to have been finalised by Mr Sandy
MacDonald in deliberation
with the CPA and the Regional Land Claims
Commissioner for Limpopo as to how the balance of the purchase price
would be paid within
the reasonable time stipulated in the agreement
but the business plan never materialised. Fourth, that the
outstanding balance
would only have been payable by the CPA within a
reasonable time after receipt of a state grant for this purpose. It
further pleads
that up to the date of filing its plea it had not
received the state grant.
[10]
It should be noted that there was an initial agreement between the
parties which provided for Gamevest to sell its game (to
third
parties). This agreement was concluded in September or October 2006
and shortly thereafter the game count was effected. However,
this
changed when the agreement in April 2007 was concluded as the CPA
then decided to purchase the game itself.
[11]
The essential contention on behalf of the plaintiff is that there is
no reference in the agreement that payment for the game
and other
movables was to be made only after the conclusion of a business plan
and receipt of a state grant by the CPA. Mr De Villiers,
who appeared
for the plaintiffs submitted that this issue had not been raised in
the pleadings and nor has it been stated in the
written agreement of
25 April 2007. However, the CPA's plea at paragraph 11 records that
the CPA pleads that the express, alternatively
tacit further
alternatively implied terms of the agreement were that:
"v)
the outstanding balance of the purchase price would be payable by the
CPA within a reasonable time after receipt of a state
grant payable
to the CPA as part of the CPA's successful land claims transaction;
vi)
a business plan would be finalised by Mr Sandy McDonald in
deliberation with the CPA and the regional land claims commissioner,
Limpopo as to how the balance of the purchase price will be paid
within the reasonable time stipulated in paragraph 11.1.4 (v)
above."
This
defence has therefore in fact been raised in the pleadings. It is
therefore not understood why plaintiffs contend that the
defendant
did not plead these two defences.
[12]
These two defences were also raised by the CPA In the affidavit
resisting the summary judgement application by the plaintiffs.
The
affidavit resisting summary judgement was deposed to by the witness
Mr. Malatji, who testified in the trial before me. He was,
at the
time the Deputy Chairperson of the CPA. Three paragraphs in the
agreement are relevant. They are:
"And
that Gamevest and/or Mr McDonald will supply a full list of the game
and movables purchased within three days from date
hereof."
"That
the CPA will liaise with professional hunter Sandy McDonald in the
next thirty days to finalise a business plan and a
proposal to the
board of Gamevest on how the outstanding balance of R1 520 000.00
will be paid within a reasonable period."
"That
professional hunter, Sandy McDonald, of McDonald Hunting Safaris will
liaise with the office of the regional land claims
commissioner,
Limpopo in order to finalise a business plan for the smooth takeover
of the reserve which shall also include a proposal
to Gamevest on
paying the balance of the amount outstanding in respect of game and
movables within a reasonable time."
[13]
Insofar as the provision of a list of the game on the farm within
three days is concerned, the plaintiff has failed to provide
any
evidence that Gamevest has in fact done so.
[14]
Mr McDonald is a professional hunter who carries out hunting
operations on the farm. Mr Bekker testified that since Gamevest
no
longer had anyone on the farm it was for Mr McDonald to produce that
list. The agreement is however clear. It was either Gamevest
or Mr
McDonald or both of them who were to have provided the list. It seems
that while the primary obligation to provide the list
rested on
Gamevest, if it was unable to do so because it was no longer
represented on the farm, then Mr McDonald would do so on
its behalf
as he had continued conducting hunting operations there.
[15]
The submission by plaintiff that the agreement contains no condition
for the payment being subject to a grant and a business
plan cannot
be sustained. The quoted paragraphs from the agreement show that a
business plan was to be prepared by Mr
McDonald
and that was to include a proposal to Gamevest on paying the balance
of the outstanding amount in respect of game and movables
within a
reasonable time.
[16]
As I said, one of the defences of the CPA is that it was the express,
alternatively tacit, further alternatively implied term
of the
purported agreement concluded between Gamevest and the community that
the outstanding balance of the purchase price would
be payable within
a reasonable time after receipt of a state grant. Mr Uys, who
appeared for the CPA, submitted that the crux of
this sentence is the
word "after". It was submitted that "after" can
be interpreted in two ways, either as
a suspensive condition or on
the other hand that it was merely a term of the agreement delaying
payment. For the reasons that follow,
I am of the view that it was
merely a term of the agreement, delaying payment.
[17]
Mr. Malatji testified that it was an express term that payment to
Gamevest would be subject to receipt of a state grant. However,
even
if he may have understood it (as a layman) to be an express term, the
agreement does not state it expressly.
[18]
Implied terms are terms implied by law (ex-lege terms) or implied
from the facts (tacit terms). A tacit term derives from the
common
intention of the parties, as inferred from the express terms of the
contract, the circumstances surrounding the conclusion
of the
contract and the subsequent conduct of the parties.
[19]
A tacit term or term to be implied from the facts was defined in
Alfred McAlpine & Sons (Pty) Ltd v Transvaal Provincial
Administration
1974 (3) SA 506
(A) as follows at 531 to 532:
"An
unexpressed provision of the contract which derives from the common
intention of the parties, as inferred by the Court
from the express
term of the contract and the surrounding circumstances. In supplying
such an implied term the court, in truth,
declares the whole contract
entered into by the parties."
[20]
In order to determine whether a tacit term is to be imported regard
will first be had to the express terms of a contract. See:
Pan
American World Airways Inc SA Fire and Accident Insurance Co Ltd
1965
(3) SA 150
(A) at 175C. Fabricius J explains in Firstrand Bank Ltd. V
Mzimkhulu Property Investments CC & Another A159/11 (NGP)
(unreported):
"It follows that a tacit term cannot be imported
on the question to which the parties have applied their minds, or for
which
they have made express provision in the contract. A tacit term
can obviously not be imported where it will contradict an existing
express term. It can also not be imported because it is reasonable or
convenient for the parties to have included it in their agreement.
It
must be necessary. It is also not to be imported on the basis that
only an unreasonable person would not have agreed to the
term. The
question is rather, whether the Court is satisfied that both parties
did, in fact, agree. In the proper context, namely,
whether a tacit
term exists or not, the so-called "bystander" test will be
applied. The tacit term must be capable of
the exact (although not
concise) formulation. If there "is difficulty and doubt as to
what a term should be or how far it
should be taken, it is obviously
difficult to say whether the parties clearly intended anything at all
to be implied. See Desai
and others versus Greyreach Investments
(Pty) Ltd
1974 (1) SA 509
(A) at 522 to 523A."
[21]
In Wilkins NO v Voges 1994 (3) 54 130 (AD) the following was said by
Nienaber JA at 136H to 137C:
"A
tacit term, one so self-evident as to go without saying, can be
actual or imputed. It is actual if parties thought about
the matter
which is pertinent but did not bother to declare their assent. It is
imputed if they would have assented about such
a matter if only they
would have thought about it which they did not do because they
overlooked a present fact or failed to anticipate
a future one. Being
unspoken, a tacit term is invariably a matter of inference. It is an
inference as to what both parties must
or would have had in mind. The
inference must be a necessary one: after all, if several conceivable
terms are all equally plausible,
none of them can be said to be
axiomatic. The inference can be drawn from the express terms and from
admissible evidence of surrounding
circumstances. The onus to prove
the material from which the inference is to be drawn, rests on the
party seeking to rely on the
tacit term. The practical test for
determining what the parties would necessarily have agreed on the
issue in dispute is the celebrated
bystander test. Since one may
assume that the parties to a commercial contract are intent on
concluding a contract which functions
efficiently, a term will
readily be imported into the contract if it is necessary to ensure
its business efficacy; conversely,
it is unlikely that the parties
would have been unanimous on both the need for and the content of a
term, not express, when such
term is not necessary to render the
contract fully functional."
[22]
In the present instance, it is in my view, obvious that the tacit
term is not "actual" but one that must be "imputed".
The tacit term contended for by the CPA can be inferred from the
agreement and the surrounding circumstances as they become apparent
from the correspondence addressed by Bekker to the Land Claims
Commissioner rather than to the CPA.
[23]
The first thing to note is that the negotiations between Gamevest and
the CPA were facilitated by the Land Claims Commissioner.
It is also
common cause that it was the Land Claims Commission operating under
the auspices of the Minister of Land Affairs, who
was to finance, and
in fact did finance, the purchase of the immovable property on which
the game and movables are situated. Almost
all the correspondence and
discussions that took place relating to the purchase by the CPA of
the game and movables were directed
to the Land Claims Commission.
Gamevest (through its attorney) must have clearly been aware that the
financing of the game and
movables would also come from the
Commission just as it did for the land. No doubt, it is for this
reason that the correspondence
was addressed to the Commissioner and
the discussions took place with his representatives. Furthermore, in
paragraph 8 of the agreement
it is stated that Sandy MacDonald will
liaise with the office of the Commissioner to finalise the business
plan and, of importance,
"which shall also include a proposal to
Gamevest on paying the balance of the amount outstanding in respect
of game and movables
within a reasonable time". If a bystander
were to be asked who would be paying for the game and movables no
doubt, the answer
would be of course it is the Land Claims
Commission.
[24]
The demands for payment for the game and movables were also addressed
to the Commission, not to the CPA. It is therefore clear,
in my view
that Gamevest was expecting payment from the Land Claims Commission.
Also, in the particulars of claim it is stated
that the agreement was
concluded between the plaintiffs duly represented by Bekker, the CPA
represented by duly authorised representatives
and the second
defendant represented by the Land Claims Commissioner. What this
indicates is that the second defendant, through
the Land Claims
Commissioner was a party to the agreement. Again, applying the
bystander test as to how would the purchase price
be paid the
bystander would say: well obviously that is why the second defendant
participated in these negotiations. The CPA comprises
of a rural
community and for all intents and purposes had no funds to purchase
the game and movables. The second defendant paid
Gamevest for the
immovable property. It therefore
makes
sense why all the demands for payment were sent to the second
defendant. In this context it also makes sense why there is
the
reference to the business proposal in the agreement as it is this
business proposal that would enable the CPA to get the state
grant.
In my view, it was just a condition delaying payment. I am of the
view that it was a tacit term to be inferred from the
agreement that
the payment for the game and movables was subject to a business plan
being prepared and further subject to the obtaining
of a state grant
by the CPA.
[25]
I stated earlier that Gamevest had also failed to comply with the
agreement as far as providing a list of the game on the farm
within
three days is concerned.
[26]
I turn then to the question of accounting for the running expenses
for the month of May 2007 by Gamevest. The plaintiffs have
provided
the necessary proof about the running expenses that Gamevest incurred
during that month and the balance that is to be
set off against the
purchase price. Nothing further needs to be said about it.
[27]
In all the circumstances, there shall be absolution from the instance
with costs.
N
RANCHOD
JUDGE
OF THE HIGH COURT
Appearances:
Counsel
for 1st, 2nd and 3rd Plaintiffs: Adv. D. P. de Villiers
Instructed
by: EY Stuart Inc Attorneys
Counsel
for 1st Defendant: Adv. Uys
Instructed
by: Hartzenberg Inc
No
Appearance for the 2nd Defendant.
Judgement
Handed Down: 06/12/2012