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2012
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[2012] ZANCHC 25
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Botha v Malibra Hire BK (1960/2010) [2012] ZANCHC 25 (25 May 2012)
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IN THE HIGH COURT OF SOUTH AFRICA
NORTHERN CAPE HIGH COURT, KIMBERLEY
CASE
NO: 1960/2010
HEARD:
20/04/2012
DELIVERED:
25/05/2012
In the matter between
:
MARIE BOTHA
…......................................................................
APPLICANT
and
MALIBRA HIRE BK
…............................................................
RESPONDENT
JUDGMENT
HUGHES-MADONDO, AJ
This is an opposed application
where the applicant seeks the following order as set out verbatim in
the notice of motion:
“
(a) Dat
die koopooreenkoms tussen die partye, se kansellasie op 25 Oktober
2010 hiermee bekragtig word, alternatiewelik dat die
koopooreenkoms
hiermee gekanselleer word;
(b) Dat die respondent gelas en
beveel word, om die lys van bates, soos uiteengesit in aanhangsel
“A1” tot die koopooreenkoms,
aangegaan tussen die partye
op 1 Oktober 2008, onverwyld aan die applikantterug te lewer;
(c) Dat die balju van bogemelde
Agbare Hof gemagtig, gelas en bevel word om die bates soos
uiteengesit in aanhangsel “A1”
tot die koopooreenkoms
tussen die partye gedateer 1 Oktober 2010, op beslag te lê, te
verwyder en aan die applicant te lewer;
(d) Dat die respondent gelas word
om die koste van die aansoek te betaal op die skaal soos tussen
prokureur en eie kliënt.”
Adv A G Van Tonder appeared on
behalf of the applicant and Adv A D Olivier for the respondent.
The applicant a business
woman,Martie Botha, alleged that on 1 October 2008, she entered into
a purchase and sales agreement with
the respondent company, Malibra
Hire BK, which was represented by Lee-Ann Thuynsma. This agreement
involved the sale of the applicant’s
tool hiring business,
inclusive of all the tools, as appears on annexure “A”
attached to theagreement. The salientfeatures
of the agreement were
that the purchase price would beR700 000.00, a further amount
of R11 666.67 together with interest
would be paid in addition
to the purchase price and the total amount was to be paid in 60
equal monthly instalments.
The respondent company’s
attorney drew up the purchase and sales agreement. This agreement
reflected Johan Botha, identity
number 670920 5036 08 0 as the
seller of the business concerned. The agreement was signed by the
respondent’s representative,
Lee-Ann Thuynsma,on 30 September
2008, in Kathu, Northeren Province and signed by the applicant on 1
October 2008. On the applicant
signing the agreement she made
amendments to the details of the seller by inserting her name and
identity number. She submitted
that she did so as she was the
rightful owner of the business that was being sold to the
respondent.The applicant submits further,
that she complied with the
terms of the agreement however the respondent has not complied, in
that, it has failed to make good
regular monthly paymentssince June
2009 and from December 2009 the respondent stopped making payments
completely.
On 13October 2010 the applicant
instructed her legal representatives, Johan Kotzé Attorneys,
to issue a letter of demand
to the respondent. This letter placed
the respondent on terms as they were behind with their payments.
They were in breach of
clause 4.2 and 4.4 of the agreement and if
the outstanding payments were not received within seven day clause
9.2.2 of the agreement
would be invoked.
Clause 9.2.2 reads as follows:
“
...om
hierdie ooreenkoms sondermeer te kanselleer deur skriftelike
kennisgewing aan die versuimende party: en die benadeelde party
sal
daarbenewens geregtig wees om sodanige skadevergoeding wat die
benadeelde party mag gely het van die versuimende party te verhaal
(insluitende alle verkwisteregskostesduer die benadeelde party
aangegaan op die skaal soos tussen prokureur en eien kliënt).”
On the 25 October 2010 the applicant
duly cancelled the agreement in terms of the above clause 9.2.2.
The respondent denies having
entered into a written agreement with the applicant. In
amplification of this denial the respondent
submits that it entered
into anagreement with Johan Botha senior (the husband of the
applicant), who represented that he was
the owner of the business.
The respondent further submits that itsattorney’s were
instructed to draw up the agreement reflecting
Botha’sdetails.Eventually the respondent was informed that in
fact the applicantwas the actual owner and on the request
of the
applicant, the respondent was to draft another agreement which
included the necessary amendments. The respondent states
that this
was forwarded to the applicant, however to date this agreement has
not been returned to the respondent. The respondent
states that
payments were made to Johan Botha as per the terms of the
agreement.The respondent concedes that it ceased making
payments as
of December 2009.
The applicant in her reply to the
respondent’s answering affidavit sought that this court find
that there was a valid written
agreement between her and the
respondent,if not, then this court should find that at the least a
verbal agreement exists between
the parties, the terms of which
appears in the written agreement signed by the applicant. Applicant
states that this is because
at that time her husband (Johan Botha)
acted as her agent in the concluding the sale. I refer to paragraph
21 of her replying
affidavit:
“
Dit is
inderdaad so dat my man, Mnr Johan Botha Jnr, die onderhandeling met
Mnr André Thuynsma hanteer het, met betrekking
tot die verkoop
van my gereedskapsverhuringsbesigheid, maar het Mnr Johan Botha Jnr
te alle tye as my agent in die verband optree.”
The applicant further states that
on or about 30 September 2008 or 1 October 2008 Ms Lee-Ann Thuynsma,
who signed the agreement
on behalf of the respondent came to her
home at 1 Rivierstraat, Postmasburg. She had in her possession the
agreementwhich was
already signed by her. At this stage the
applicant brought it to Ms Thuynsma’sattention that she was in
fact the owner
of the business. The applicant states that there and
thenthe amendments were madeand then the applicant signed. The
applicant
submits that Ms Thuynsma undertook to have a new agreement
drafted reflecting the relevant amendments.
Against above backdrop it is
appropriate to make mention of the cardinal principle of the law of
contract being that, a
simple contractual offer
[my
emphasis]made to a specific person can be accepted only by that
person and that the acceptance byanother person is ineffective
and
does not bring about the conclusion of a contract.
See FRASER AND
ANOTHER v VILJOEN
[2008] ZASCA 24
;
2008 (4) SA 106
SCA at 109J-110C; LEVIN v DRIEPROK
PROPERTIES (PTY) LTD
1975 (2) SA 397
(A) at 407CandBLEW v SNOXELL
1931 TPD 226
at 229-230
where
KRAUSE J
said:
“
Now it
is trite law that an offer made by one person to another cannot be
accepted by a third person...for the simple reason that
there was no
intention on the part of the one person to contract with the other
person whatever the subject matter of the contract
may be.”
In this case an offer to purchase
was made by the respondent to Johan Botha, the husband of the
applicant, who represented to
the respondent that he was the owner
of the business that was to be sold. It evident that this amount to
a simple purchase and
sales agreement of which the negotiated terms
were eventually reduced to writing. The offeror, the respondent,
signed the agreement,
and what was outstanding was the signature of
Johan Botha, the offeree.
The acceptance of the respondent’s
offer to Johan Botha was not forth coming. Instead the applicant
made amendments to the
agreement, one of which pertained to the
details of the seller. She deleted her husband’s name, Johan
Botha and his identity
number,amidst and inserted her name and
identity number as the seller. I am of the view that this amounted
to a change in a material
term of the original agreement, agreed
upon between the respondent and Johan Botha.
See DA SILVA v
JANOWSKI
1982 (3) SA 205
AD at 219B-C
where the following was
stated: “Essentially the dispute between the parties related
to the terms of the contract and,
that being so, the onus rested
squarely on the plaintiff to prove the contract on which he founded
his action. It was accordingly
not enough for the plaintiff to prove
that the signatory put his name to the document-it was incumbent on
him to show that the
signatory put his name to the contract on which
he, plaintiff, was suing,
including all its material terms
.”[My
emphasis]
In this case what is brought to the
fore is that as the applicant’s cause of action rest upon the
agreement, she has to prove
that the respondent signed the current
agreement, agreeing to it in its final form inclusive of the
amendments. It is relevant
to state again that the respondent affixed
its signature to the agreement without the amendments thereon. Thus
the final form that
the respondent agreed uponwas without the
amendments and the applicant cannot rely on the agreement to prove
her cause of action.
The conduct of the applicant when
she made amendments to the agreement amounts to a counter offer to
the initial offer that the
respondent made to Johan Botha.However
the applicant persist that she contracted with the respondent and
that her husband, Johan
Botha, merely acted as heragent. To validate
the agreement the respondent would have tohave accepted the
applicants counter offer
and would have had to communicate its
acceptance in writing, as the counter offer was in writing. Non
acceptance of the counter
offer by the respondent amounts to the
respondent’s offer being destroyed by the applicants counter
offer.
See COLLEN v RIETFONTEIN ENGINEERING WORKS
1948 (1) SA 413
(A) at 420 andRefer to The Law Of Contract in SA 5
th
Edition R H CHRISTIE at page 49-50
.From the evidence before
me there is no written acceptance by the respondent of the counter
offer made by the applicant.
Adv Van Tonder argued that I infer
from the conversation between the applicant and Ms Thuynsma, where
the applicant advised Thuynsmathat
she was in fact the owner and
that MsThuynsma should ensure that a new agreementwas drafted in
line with the amendments made,
that this constituted a verbal
agreement. My view is that even though the respondent was advised as
to who the owner is, this
being new material information, and there
is no new contract that can be produced before this court upon which
the applicant
can rely on, is an indication that the counter offer
cancelled the original offer of the respondent to Johan Botha and
there
is no agreement between the respondent and the applicant.My
conclusion can only be that the aforesaid counter proposal destroyed
the initial offer made by the respondent and as such no agreement
exists between the parties.
The order sought by the applicant
was that the cancellation of the agreement on 25 October 2010 be
ratified, alternatively the
agreement be cancelled. No agreement
existed between the parties and as such cancellation thereof could
not have been effectedon
25 October 2010. Likewise as there is no
agreement ratification cannot take place.
As regards the costs these will
follow the successful party being the respondent.
The following order is made:
The application isdismissed with
costs.
___________________________________
W HUGHES-MADONDO
ACTING JUDGE
Northern Cape High Court,
Kimberley
:HgiHIghosts of such
procee
APPEARANCE
On behalf of the
Applicant
:
Adv. A.G.VON TONDER
Instructed by HUGO
MATTEWSONOOSTHUIZEN
On behalf of the
Respondent
:
Adv.A.D. OLIVIER
Instructed by DUNCAN
& ROTHMAN