Chambers v Burger (EL 632/2009, ECD 2432/09) [2012] ZAECELLC 2 (9 March 2012)

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[2012] ZAECELLC 2
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Chambers v Burger (EL 632/2009, ECD 2432/09) [2012] ZAECELLC 2 (9 March 2012)

IN
THE HIGH COURT OF SOUTH AFRICA
(EAST
LONDON CIRCUIT LOCAL DIVISION)
CASE NO. EL 632/2009
ECD 2432/09
In the matter
between
ANNE
ROSEMARIE CHAMBERS
…....................................................
Plaintiff
and
THEODORE
ERVINE BURGER
…....................................................
Defendant
JUDGMENT
HARTLE, J
The plaintiff
claims payment of estate agent’s commission in the sum of R542
640.00, based on an oral mandate given to her
by the defendant to
find a purchaser for his immovable property being farms 312 and 313
– generically referred to as “
Weltreveden
”
– in the district of Queenstown.
It was conceded
upon trial that the plaintiff is an estate agent who at all relevant
times was the holder of a valid fidelity
fund certificate issued
pursuant to the provisions of section 26(a) of the Estate Agency
Affairs Act, No. 112 of 1976. It was
also accepted during the trial
that the amount claimed in prayer (i) represents the commission that
she would have been entitled
to earn assuming she proved that she
duly performed in terms of the mandate in question.
The
plaintiff pleaded that “(i)
n
or about July 2008, (
she
)
introduced one AGGREY MAHANJANA to the said immovable property and
as a direct result of this introduction, the National Government
of
the Republic of South Africa purchased and took transfer on 19 May
2009 of the aforesaid immovable property at a purchase
price of R6
800 000.00 … VAT exclusive
”
.
Thus she performed in terms of her mandate, was the effective cause
of the sale, and is entitled to payment of the agreed commission.

Reference was made to the deed of sale - attached to her particulars
of claim marked Annexure “A” - which was the
precursor
to the transfer.
1
In
terms of paragraph 21 thereof, the seller was to be liable for the
payment of any agent’s commission in respect of the
sale.
The defendant
admits that
Mahanjana
was introduced to the property, but
denies that as a direct result of this introduction – or
indeed at all - the deed of
sale (Annexure “A”) was
entered into; that the plaintiff was the effective cause of that
sale, or that she performed
her obligations in terms of the mandate.
That Annexure “A” co-incidentally referred to estate
agent’s commission
did not, so it was pleaded, establish her
entitlement to payment in the absence of any causal connection
between the introduction
and conclusion of the sale ultimately to
the government.
The
defendant adverted to a prior agreement (which I will refer to as
the “
Anne
Chamber’s agreement to purchase
”
)
which was entered into on 14 July 2008 between the defendant and the
National Emergent Red Meat Producers Organisation, Eastern
Cape
(“NERPO EP”), which he conceded on the pleadings had
indeed been concluded in furtherance of the agreed mandate.
In terms
of this agreement he purported to sell his property for an amount of
R9.5 million, which purchase consideration included
value for
farming equipment and assets in an amount of R2 million. The sale
was subject to a suspensive condition concerning
the approval by the
Department of Rural Development and Land Reform (“the
department”)
2
and
the furnishing of guarantees by 30 November 2008. In the absence of
the guarantees having been supplied by the agreed upon
date,
however, the agreement fell away, and the introduction of
Mahanjana
was
accordingly to no effect.
The
plaintiff testified that in 2007 she was asked by the department to
find farms for “
their
beneficiaries
”
.
3
She
did so on a full time basis from 2007 in conjunction with a separate
agency,
Jorita
Properties,
of
which
Gerald
Tessendorf
-
a relative of hers - was the principal agent. The nature of the
formal arrangement between her agency and his concerning these
deals
was one of co-operative agreement.
4
One such
beneficiary for whom the plaintiff sought to find a farm was
Mahanjana
associated with the national office of NERPO. He
was looking for a cattle or vegetable farm.
She had learnt from
a friend that the defendant’s farm was for sale and approached
him with a view to discussing his requirements.
After giving her a
guided tour he indicated that his price was R9.5 million, inclusive
of implements and equipment. He confirmed
that she could bring a
buyer, which culminated in the formal mandate to her. It also
emerged that there was some urgency for
him to dispose of the
property Not only had the mortgagor, Standard Bank, threatened to
repossess the land, but he was in the
throes of a divorce action and
the purchase by the Defendant’s wife of an unrelated property
was dependent on the proceeds
of the transfer of
Weltrevreden
.
An earlier
prospective purchaser fell by the way side, but in July 2008 she
made arrangements with the defendant to bring
Mahanjana
to
view the farm. The latter flew down from Pretoria and the plaintiff
drove him to Queenstown where he was shown it in the presence
of the
defendant and his wife.
Mahanjana
liked the property and indicated that he would like to purchase it.
She later took
Reverend Mxekezo
, the local NERPO
representative, to the farm. This culminated in the offer to
purchase on her agency’s template dated 14
July 2008 (the Anne
Chamber’s agreement), which was signed by
Mxekezo
on
behalf of NERPO EP and by the defendant on the same date. Her
limited understanding of the conditional clause in the agreement
was
that NERPO would buy this farm “
through
” the
department, i.e. they would fund the purchase.
A week later she
forwarded the offer by facsimile to the defendant’s
conveyancing attorneys,
De Waal-Baxter.
In the covering
letter she confirmed that she had “
already handed same to
the Department of Land Affairs, Queenstown”
and that she
would keep the attorneys updated. The agreement was given to one Mr.
Boltina
of the Queenstown district land reform office. He was
the project leader concerned with the sale of the farm to
Mahanjana
.
She anticipated that what would unfold thereafter was “
the
rest of the procedure of the sale of the property
”.
On 28 July 2008
De
Waal-Baxter
acknowledged receipt of the agreement and requested
to be informed as soon as the plaintiff heard from the department.
Thereafter
she claims that she and
Tessendorf
maintained
regular telephonic contact with the Queenstown office to track the
progress; with the defendant to keep him updated
(because she was
particularly concerned for his plight); and with
Althea
Petzer
,
a conveyancing secretary in the employ of
De
Waal-Baxter
.
On one occasion she and
Tessendorf
personally
attended at the Queenstown office in order to introduce themselves
and to enquire as to the progress of the acquisition.
She also
claimed both to have informed the department of the defendant’s
dire financial circumstances, and to have initiated
the procurement
from it of a “
to
whom it may concern
”
letter
to assuage Standard Bank to hold legal proceedings in abeyance when
it was pressing to dispose of the property by sale
in execution.
5
With
reference to a letter in the plaintiff’s bundle
6
addressed
by the department to the defendant dated 5 November 2008, she
acknowledged being informed that it had subsequently valued
the
defendant’s property at R6.8 million and that
De
Waal-Baxter
had
replied to them indicating their client’s acceptance of the
offer and acknowledging that the price excluded any implements,
and
vat such as was applicable.
7
Concerning
the attorneys’ request to let them have details of the
purchaser to draft a formal deed of sale, the plaintiff
remarked
that this was “
normal
”
procedure.
What she meant thereby, she explained, is that once the valuation
was accepted and the seller was happy with everything,
a new deed
would be prepared which would ultimately be signed by Mr.
Dali
Matta,
the
Chief Director of the Eastern Cape Land Reform Office.
She
pointed to a further letter in the bundle dated 22 January 2009
8
addressed
by
De
Waal-Baxter
to
the department requesting information to draft the deed in which
reference is made to an earlier fax addressed by them
to
the “
Estate
Agents
”
confirming
that it had approved the sale of the farm. She claimed this as proof
of her involvement at the time since there were
there were no
competing agents who had an interest in the transaction; and a later
letter addressed by the department to the
conveyancing attorneys
9
as
evidencing the department’s acknowledgement of her interest in
the transaction beyond 30 November 2008. This is because
a fax
report at the head of the letter confirms that the letter was copied
to her by the department on 2 February 2009.
She agreed that she
had no role to play in the drafting of the new deed of sale
(Annexure “A”), but was confident
that all the
information concerning the transaction was in the original Anne
Chamber’s agreement. She added that, since
she and
Tessendorf
were in constant contact with the department, they would not have
hesitated to give them anything they were looking for. Since
they
had sold a number of farms like this, she knew that the deed would
be drawn up between the seller, the government and the
beneficiary -
with Mr.
Matta
as signatory on behalf of the latter.
Her
expectation that commission was to be paid in respect of the
transaction was dashed on the date of registration of transfer.
She
adverted to a fax letter addressed to her by
De
Waal-Baxter
dated
19 May 2009,
10
sent
on the morning of registration of transfer, in which the defendant’s
liability for commission was disavowed for the
first time. The
contents of this communication are to the following effect:
“
SALE:
BURGER TE / NATIONAL MERCHANT RED MEAT PRODUCERS ORGANISATION
We advise that the
aforementioned sale to the National Merchant Red Meat Producers
Organisation was subject specifically thereto
that the sale be
approved by the Department of Land Affairs and guarantees issued by
30 November 2008.
The sale was in fact
not approved, nor was the guarantees received and the sale therefore
fell away.
A new Deed of Sale
was negotiated, without your intervention and without any input from
your agency, in which a new buyer was determined,
a new purchase was
negotiated and the subject matter of the sale was also different.
In the light of the
circumstances we have received instructions from Mr. Burger to
repudiate your claim for agent’s commission
on the basis that
you were not the effective cause of the sale and as such not entitled
to agent’s commission.”
Her surprised
reaction to this disavowal is set out in the transcript of evidence
at page 68 as follows:
“…
we
signed the Deed of Sale with Mr. Burger. We did everything we had to
do. We explained to him how the procedure worked. As far
as the new
Deed of Sale was concerned, it’s normal procedure that we’re
not involved there. We’ve done our work.
That date had expired.
We did ask Mr. Burger to extend it. There was a land claim on the
property. And he said no, please don’t.
We don’t want to
delay matters any further. We want to continue with the same Offer to
Purchase. He didn’t want us
to draw up a new Offer to Purchase
because he was scared it was going to delay the matter further. He
didn’t want any more
delays.”
On pages 69 and 72
respectively she also highlighted her confusion around the
defendant’s repudiation of her claim for commission
as
follows:
“
I can’t
understand where he’s coming from …. We did the sale, we
took Mr. Burger – we made appointments
with him, we took the
client to the farm, he purchased the farm through us. And the date
did expire – we wanted to draw up
a new Offer to Purchase and
he didn’t want to. He said we must use the existing one; he
doesn’t want to delay the matter
any further. So I don’t
know – I can’t understand where they’re coming
from. I was the effective cause
of sale; I did introduce my buyer to
the property.”
“
Can you tell
Her Ladyship whether or not on any previous occasion Mr. Burger had
given any indication of repudiating liability for
commission? ---
Nothing whatsoever, Your Honour, I was totally shocked. I just
couldn’t believe it.”
Under cross
examination the plaintiff persisted that a deed of sale in the form
of Annexure “A” was the norm and that
the government was
the purchaser notwithstanding what the Anne Chamber’s
agreement indicated. She explained that this was
just an offer and
that a formal deed was expected to follow once a valuation was
effected. She appeared unable to understand
the defendant’s
submission that the offer became the enabling deed of sale once it
was accepted by him. She also appeared
unable to understand the
effect in law of the suspensive condition in her agreement, but
added that the defendant had in any
event specifically mandated her
not to “
renew
” the offer after 30 November 2008.
She took this to be the “
go-ahead
” to continue on
the basis of the original agreement until registration of transfer.
She agreed that a new offer to purchase
would indeed have been
necessary post valuation and acceptance by the defendant to reflect
the reduced purchase price, but insisted
that this need was
countermanded by his specific request to keep matters as they were.
She
was unable to verify with regard to telephone or files notes the
occasions on which either she or
Tessendorf
phoned
or with whom they spoke, but her common refrain was that they had
been in “c
onstant
contact
”
with
the defendant, the department and
Althea
Petzer
.
She remained convinced that she was responsible for the “
to
whom it may concern letter
”
dated
18 December 2008. She must have requested it, so she suggested,
otherwise the reference in
De
Waal-Baxter’s
letter
dated 22 January 2009 concerning the department’s earlier fax
to the “
Estate
Agents
”
could
not have arisen. She could only imagine that it must have been faxed
to her contemporaneously.
11
She rejected the
assertion that that district director,
Molokoane,
could not
have known of her involvement in the matter, insisting that she and
Tessendorf
had gone to her office to introduce themselves to
her. She could not be specific, however, as to the date when this
took place.
The
plaintiff appeared unversed with the workings or the effect of the
two applicable financing models in place at the time by
the
department to assist emerging farmers in the acquisition of farming
property for land reform purposes or of the internal
processes which
had unfolded concerning
Mahanjana’s
dealings
with the department after the initial offer was submitted.
12
In
this regard, whilst conceding on the one hand that NERPO wanted to
acquire
Weltevreden
for
its own purposes and to have title over it rather than to simply
become a beneficiary, she was otherwise confident that
Mahanjana
had
always said that the government would own the property.
Despite her obvious
lack of knowledge concerning the financing models or internal
procedures of the department she insisted, however,
that she and
Tessendorf
had explained these “
very clearly to
(the
defendant)”. When asked to explain it in her own way, she
stated as follows:
“
I was asked
to find them farms, to find client a farm. I found him the farm, took
him to the farm, he signed for it through his
representative, because
I went more than once to the farm. Mr. Burger accepted it. We then
handed it in to the Department of Land
Affairs and as well gave it to
Baxter-de Waal. And the procedure after that is a project leader was
appointed to go and look at
the farm, then the valuation gets done,
which was done. We told Mr. Burger what the valuation was when it
came back. He accepted
the valuation.”
She was not clear
when or where they had informed him, but the plaintiff was insistent
she and
Tessendorf
had informed the defendant of the
department’s valuation. Her recall was that the department had
phoned them since it was
the agency’s obligation to “
get
back to the seller
”. She was not put off by the fact that
the letter advising of the valuation was personally addressed to the
plaintiff.
She dismissed this as “
standard procedure
”.
She
denied that her contact with the defendant concerning the
transaction ended “
more
or less around the beginning of November 2008
”
or
that her contact with
Althea
Petzer
was
limited on the basis put to her by Mr. Kincaid who appeared for the
defendant.
13
She conceded that
she only met Ms
Molokoane
after May 2009, but could not
remember the date. She rejected any criticism of her handling of the
matter as an agent by
Molokoane’s
exacting standards,
stressing that they had done the “
normal
” thing
expected of them, viz to keep in contact with the department and
transferring attorneys.
Finally, once she
was able to understand this, the plaintiff conceded that the
introduction of
Mahanjana
to the farm (in relation to
Annexure “A”) was not direct, but rather an indirect
one. Still she maintained that this
entitled her to payment of the
commission pursuant to the ultimate sale of the farm to the national
government.
Mahanjana
,
the national chief executive officer of NERPO, testified on behalf
of the plaintiff. He is also a trustee of the NERPO Farming

Enterprises and Development Trust, the entity which currently leases
Weltreveden
from the government through the department. The
trust is an independent entity, albeit a section 21 subsidiary of
NERPO which
acts in the latter’s interests in the acquisition
of land used to train emerging farmers. The organisation relies for
the
realisation of its projects on government financing these
purchases or bestowing the land upon it for “
free
”
in the form of a free-lease agreement.
He acknowledged the
plaintiff as an estate agent who had acted in NERPO’S
interests before in introducing farming property
in the Chris
Hani/Matola district and who had shown “
Weltreveden
”
to him.
He identified the
Anne Chamber’s sale agreement as the one signed by the
chairperson of the provincial branch which had
been entered into
with the defendant. He agreed that it had never been envisaged that
NERPO would be funding the purchase by
way of a mortgage bond, given
the special suspensive condition contained in the agreement. The
manner in which this provision
was framed he attributed to the
plaintiff’s role in looking for property on behalf of
government, the acquisition of which
they would look at financing.
He explained the
two land redistribution models employed by the department for land
reform purposes which were in place at the
time pursuant to which
they might “
take
over
”
properties
identified by the plaintiff which piqued their interest. The first
program – Land Redistribution for Agricultural
Development
(LRAD) - operated on the basis that government would award a grant
to a maximum of R400 000.00 per qualifying beneficiary
to purchase
the land.
14
In practice, since
farm values invariably exceed the maximum grant and in order to gain
advantage of this program for its acquisitions,
NERPO would combine
members to make up a sufficient number to meet the purchase price.
The beneficiaries would own the land with
government exercising no
control post registration.
The second program
- which came after LRAD to address the difficulties occasioned by
the large numbers of beneficiaries involved
in a single purchase
15
- is called
Proactive Land Acquisition Strategy (PLAS). According to this model,
a beneficiary identifies a property in which
he is interested.
Government purchases it on the latter’s behalf but leases it
to the beneficiary who enjoys first option
to purchase once
government thinks he is ready and productive on the farm.
He agreed that it
was the “
duty
” of the plaintiff, after conclusion
of the sale secured by her, to “
facilitate
” the
process with the department in accordance with their finance models.
He was aware - and indeed it is common cause
- that financial
approval was not furnished by 30 November 2008. He learned as much
from the project leader, Mr
Boltina
, of the Queenstown
district office, with whom he was in telephonic contact almost on a
daily basis concerning the transaction.
To his knowledge the
application failed on the LRAD system but, subsequent to 30 November
2008, was approved under PLAS. He remembered
that such approval
coincided with his year end holiday. He was further made aware, both
by the defendant and
Boltina
that the monies for the purchase
would only become available in the next financial year, commencing
on 1 April 2009.
He identified
Annexure “A” as the effective agreement employing the
PLAS system and acknowledged the absence of NERPO
EP being described
as the purchaser in it. He also identified the lease agreement
entered into between the government and NERPO
Farming Enterprise
Development Trust, signed by him in his official capacity, as being
the vehicle through which NERPO’s
interest in the land for its
purposes was ultimately realised (Exhibit “B”).
16
He testified
finally that, between the signing of the initial agreement
(including the period after 30 November 2008) and the
culmination of
his organisation as lessee in respect of the property, the defendant
contacted him on a regular and frequent basis
enquiring about the
progress of the matter.
Gerald
Tessendorf
,
an estate agent, confirmed his relationship and association with the
plaintiff for purposes of selling farming property. He
knew of the
defendant’s mandate to the plaintiff because he was present in
her office at the time she first made an appointment
with him to
view
Weltreveden
.
He accompanied her
to the farm when the defendant showed them around, discussed the
purchase price he wanted and conveyed the
urgency of the situation
given that Standard Bank was intending to repossess his farm. He
also learned of the defendant’s
matrimonial problems, this
information having been volunteered to them by Mrs
Burger
.
He and the
plaintiff called
Mahanjana
in Pretoria when they were back in
East London. They knew that the defendant’s farm was just what
he was looking for. Arrangements
were made for him to view it and
both of them accompanied him back to the farm to show him the
property. On the last occasion
only the defendant’s spouse was
present.
Mahanjana
expressed an interest in the property. He informed them that he
would discuss the matter with the department and revert to the

defendant in this regard.
He was not present
when the Anne Chamber’s agreement was negotiated, but was
aware of the offer and its transmission by
facsimile to
De
Waal-Baxter
attorneys. Thereafter he was “
involved
”
in the unfolding of the deal. He knew of every fax that was sent and
the plaintiff notified him of all correspondence
received.
He personally kept
contact with the defendant after to keep him in the loop because the
latter was “
in dire straits
”. He was aware that
the defendant often phoned the plaintiff as well to find out what
was happening. On occasions the defendant
also came into the office
and at one stage was in a particularly bad state emotionally.
He personally made
a call to
Molokoane
to track the progress of the transaction.
Similarly he spoke to
Boltina
. He recalls further that some
time in October 2008 both he and the plaintiff went to Queenstown to
introduce themselves to
Molokoane
and
Boltina
. He
found
Molokoane
to be very accommodating. They informed her
of the defendant’s problem, of which she appeared to be
already aware. She
undertook to try to help and to speed things up
as much as she could.
Conscious of the
advance of 30 November 2008, he personally called the defendant at
the beginning of that month to warn him that
the offer was due to
expire and that he needed to “
renew
” it. The
latter asked what the implications were and he mentioned that there
was a land dispute which was why the matter
was dragging (He had
heard about this dispute from
Boltina
). The very specific
instruction from the defendant in this regard was that in no way
should they stop the sale. They were to
simply “
carry on
”
with matters as they stood. He feared any delays because the bank
was standing poised to repossess the property.
Adverting to the
two schemes available to the department as mechanisms for
facilitating the acquisition of land (his knowledge
of these
accorded with
Mahanjana
,
Matta
and
Molokoane’s
understanding of how they operated); he was firm that they never got
involved in the LRAD scheme, only PLAS.
He added that he
dealt exclusively in farms and that he had successfully sold seven
farms previously. Thirty or forty similar
applications for
acquisitions had been turned down by the department because of
valuations not being accepted by the sellers.
This was, however, the
first land reform sale involving the plaintiff. His understanding of
the process involved in these matters,
in his role as agent - was
that the offer to purchase was “
just to get the ball
rolling
” and to serve as a basis for the valuation.
Thereafter different procedures ensued: committee meetings were held
and business
plans drawn up etc. Finally the department drafted the
ultimate deed of sale in which the government was reflected as
purchaser.
He identified the
deed of sale (Annexure “A”) as being in accordance with
what he understood to be the “
standard
” in
respect of the processes involved.
He described his
contact with the defendant concerning the transaction both before
and after 30 November 2008 as being regular
and - because of the
delays and pressure the defendant was being placed under by the bank
- very frustrating.
With regard the “
to
whom it may concern
”
letter
17
,
he acknowledged that he was aware of contact between the plaintiff
and
Dawn
of
Kemp
Estates
because
of their interest in the conveyancing transaction concerning the
defendant’s spouse. This would account for the
annotation in
the plaintiff’s hand of
Dawn’s
name on it.
Exhibits “C”
and “D”, were to the best of his knowledge sourced from
the original “
to whom it may concern
” letter
which was faxed to the plaintiff’s facsimile address. He could
not decipher from the fax header, when this
was, but thought that it
could have been in December 2008 - making it contemporaneous with
the time of
Molokoane
writing it.
Under cross
examination he acknowledged that the Anne Chamber’s agreement
appeared on the face of it to be in accordance
with the LRAD
strategy, given that NERPO was indicated as purchaser. He added,
however, that it still remained for the matter
to be negotiated
between
Mahanjana
and the department as to what “
route
”
they were going to take. He clarified that he and the plaintiff did
not get involved in “
that side of it
” and indeed
that they had never before been involved with an LRAD application.
Despite this – or personal knowledge
that
Mahanjana
contemplated buying under this model, he could not dispute that
Mahanjana’s
preference had been for NERPO to own the
property in its own name. He added however that the purchase was
envisaged “
through the department
” and that he
expected that it would be funded under the PLAS system. Seemingly he
and the plaintiff were not interested
in how NERPO was going to
achieve its objective to obtain the property. Neither did he
consider that it was up to the agents
to determine what system was
effectuated. Similarly they were not involved in the “
internal
processes
” concerning the meetings of the district
screening committee etc. Their only obligation was to follow up with
regard to
process made.
He agreed with
hindsight that the Anne Chamber’s agreement should perhaps
have stipulated the department as purchaser, with
NERPO as
beneficiary. However, because it was the plaintiff’s first
deal this is unfortunately how the matter evolved.
He further
conceded that her agreement was in law a nullity for want of timeous
compliance with the suspensive condition, but
repeated his view that
the purpose served thereby – as with all such offers - was
merely to “
get the ball rolling
” so as to
originate the going out for tender for the valuator and thereafter
to generate all the further processes –
environmental impact
assessment, business plan and valuation, culminating in the ultimate
sale as reflected in Annexure “A”.
Without it nothing
could happen.
He disagreed under
cross examination that he had only met
Molokoane
closer to
the date of registration of transfer. He could say so because at the
time of their meeting she had asked if he would
in future contact
Boltina
in respect of the transaction, who was the project
leader. He agreed however that the meeting was merely fortuitous
because they
were co-incidentally
en route
to Elliot at the
time to look at a farm.
He conceded that -
like the plaintiff - his record keeping was unhelpful as he made no
diary entries of his visits or minutes
of his calls.
As far as he was
concerned, he was the person who phoned the defendant to inform him
of the valuation
.
He explains that he did not wish to go on
hearsay from
Boltina
and requested something in writing,
which confirmation was provided to him. He conveyed the department’s
stance to the
defendant, who undertook to revert to him once he had
discussed the matter, with whom he did not know. He later called and
learnt
that he had already accepted the offer. They then left it to
the department to negotiate the deed of sale with the conveyancing

attorneys, as is the norm. This final deed would not have
eventuated, however, absent their role in the introduction and
production
of the earlier offer.
He could not
comment on the plaintiff’s evidence being inconsistent with
his – or what the defendant would allegedly
say –
concerning where or how the valuation was conveyed to him.
18
He was unaware that
the district screening committee had turned
Mahanjana’s
application down the first time because the valuation was too high;
that the application had also failed on LRAD, or that
Molokoane
had approached the
Lukhanji Red Meat Producers
as a possible
alternative beneficiary. There was, however, nothing unusual about
this since the agents did not involve themselves
in these processes.
Finally the
plaintiff called
Daliwonga Armstrong Matta
who, until April
2009, was in the employ of the provincial land reform office as
chief director.
He similarly
testified as to the workings and import of the two land acquisition
programmes, LRAD and PLAS, in place at the time
of the transaction.
He added, however, that by the beginning of 2006 the PLAS model had
become the preferable option
inter alia
because of the
limitation in the amount of the grants under LRAD and the large
numbers required to make up the purchase price.
With regard to the
Anne Chamber’s agreement and the exchange of correspondence
concerning the valuation and subsequent request
by
De Waal-Baxter
attorneys to furnish the details of the purchaser of the property to
draft the deed of sale, he saw nothing unusual. He explained
that it
was normally the appointed conveyancer who drafted the agreement. He
added that the favourable consideration by the department
under the
PLAS programme was the reason why the purchaser ultimately reflected
in Annexure “A” was the national government
and that
this was a natural progression.
Concerning clause
21 of Annexure “A” dealing with the payment of estate
agent’s commission, he clarified that,
where agents were
involved, this clause would be standard.
He testified that
the complete process flow in respect of land reform transactions was
as follows:
“
On
receipt of an application or an offer the initial documentation gets
submitted at our regional offices, like Queenstown, Umtata,
East
London, Port Elizabeth offices. We had four regional offices at the
time. Now the initial screening of that application or
offer is done
at that level and any packaging or design of that project is done at
that level, then the project officer is appointed
who will deal
specifically with that particular project, who would do the packaging
and the design, conduct valuations and do all
sorts of activities
related to that and that application then gets submitted to a
district screening committee meeting, then that
district committee
meeting would satisfy itself that the project is in order and that
committee will then recommend to a provincial
committee and once it
gets to the provincial committee it is then that at the level of the
Chief Director would start in the acting
with that particular
project, because the Chief Director would then chair the committee at
the provincial level. It is then on
that basis, on the basis of that
interaction and scrutiny of the documentation and related activities
that the project either gets
approved or not approved and once it is
approved it is then sent back to the district officer where it
originated for the district
office to take it further in terms of the
conveyancing, the registration of transfer and all related
activities, that’s it
in a nutshell.
19
Because of the
department’s preference for the PLAS model he explained that
the tendency in 2008/9 was for them to redesign
projects away from
LRAD through PLAS. This was part of the function of field workers in
the registration office to advise on
the best route that the
progress could take, looking at the possibility of success and
approval. In such event, however, as far
as he was concerned, the
project retained its “
original identity
”.
He confirmed that
Exhibit “B” reflected the NERPO development trust’s
interest in the project as beneficiary.
There was nothing odd about
this evolvement. In his view it always remained the same project.
Finally, with
regard to earlier correspondence exchanged between
De
Waal-Baxter
attorneys
and the Commission of Restitution of Land Rights concerning the
defendant’s desire to dispose of erf 201
20
as well as the
balance of the property, he recorded his view that the Commission is
a separate entity from the department albeit
the director-general of
the department had a role to play in the Commission and its
proceedings. This notwithstanding, he could
not dispute that the
Queenstown office might have acquired knowledge - in the course of
their dealing with the land claim - that
the defendant wished to
dispose of
Weltevreden
as well.
Under cross
examination he could not agree with Mr
Kincaid’s
submission that, because of the distinct concepts of ownership and
lease under LRAD and PLAS respectively - and the progression

ultimately in respect of NERPO’s case toward the PLAS scheme -
the department was no longer dealing with the “
same
project
”. Neither could he agree that once the district
screening committee refused the application under LRAD that that
signalled
“
the end of the matter
”. The single
project was “
resuscitated
” under PLAS because
exactly the same information was on the file, the same beneficiary,
price and seller etc. This did
not amount to starting afresh and
opening a new file. Whilst there might have been a change in the
“
mechanical process of the acquisition of the farm
”
– and the need to provide a business plan as a supplementary
requirement under the PLAS scheme - all other things
in his view
remained the same. It was always the same project.
Neither could he
agree that the project had different purposes under each of the
models. This is because the strategic objective
of the department is
the promotion of
access
to land - as opposed to ownership.
Under examination
by the court he confirmed that the format of the application to
partake in either programme was not prescribed.
It was possible to
initiate the process even by way of a letter asking the department
to assist a beneficiary in acquiring an
identified farm. Thus he
explained in his evidence :
“
There
is no particular format and upon receipt of that letter the
Department has got a form whereupon it captures that information,

particulars, property description and things like that, but the
initiation is just about a letter of application or an offer to
sell
from a seller who simply brings in an offer to say: “I am
selling my farm”, then that initiates the process.”
That concluded the
case for the plaintiff.
The defendant
called only a single witness,
Molerato Elizabeth Molokoane,
who
is employed by the department as its deputy director in the
Queenstown district office.
She premised her
testimony with an explanation that the Commission for Land Reform is
not an independent body apart from the department,
even though it is
a section 8 institution under the Constitution. This is because it
is headed by the director-general of the
department. In this vein
she refuted that the department would not have known of the
defendant’s intention to sell
Weltreveden
before
Mahanjana’s
introduction to the property by the
plaintiff.
She too confirmed
the intricate workings of the two land redistribution models, LRAD
and PLAS, which she was called upon in her
capacity as deputy
director to implement. She is the chair of the district screening
committee, whereas
Matta
chaired the provincial committee.
She acknowledged
that she got to know of the Anne Chamber’s agreement when she
took the file over from
Boltina
in 2008. She explained that
he was junior in her office, slow and unfamiliar with the process.
The defendant had been coming
to the office almost on a daily basis
“
trying to get his property bought
” and wanting
to know whether the story had changed from the day before. He was in
a particularly emotional and labile state.
He would sometimes be at
her office at quarter to seven already when she arrived in the
morning. Given the annoyance –
and the defendant’s
desperation – she herself had taken over the file from
Boltina
to deal with it.
The description in
the offer of NERPO as the purchaser led her to conclude that it was
envisaged thereby that the LRAD progamme
was to be employed. She
noticed from the project file that the original offer to purchase
was for R9.5 million. Upon its first
presentation to the district
screening committee it was declined on the basis that the price was
too high and because the price
included movables - which it is not
the department’s policy to acquire. But even absent the
movables, the net price of
R7.5 million was too high; hence a
decision was taken to appoint an independent valuator to determine
market value.
Once the price was
determined the offer was made per letter of
Boltina
addressed
to the defendant dated 5 November 2008. She was away at the time but
requested him to draft something because she anticipated
that the
defendant, who was in the know abut the meetings of the district
screening committee, would want an update. She understood
that the
letter was personally handed to the defendant who took it next door
to the offices of
De Waal-Baxter
attorneys. Their office got
a response accepting it the very same day, in fact within minutes
after the counter-offer was tabled.
According to her
there was no evidence on the file that the plaintiff or
Tessendorf
had anything to do with the acceptance of the reduced offer.
Again on 11
November 2008 she was part of the committee that deliberated on the
project. The application before the district screening
committee was
in terms of LRAD, but was declined because of the large number of
individual beneficiaries who would be required
to make up the
purchase price (66). The committee considered that this would not
create a viable agricultural enterprise and
would be inimical to the
department’s land reform objectives. They informed the
beneficiary that the application was unsuccessful
and that they were
closing their file.
Mahanjana
, who she also knew personally,
advised her that he would pursue other options, perhaps even
approach a bank for finance.
But the defendant
would not give up. He continued to make a nuisance of himself,
asking her if she couldn’t get someone
else to purchase it.
She then decided to approach
Mahanjana
again who it seems was
also aware of the defendant’s desperation since the latter had
been calling him as well. She offered
that the department could buy
it, but only if she had someone who was prepared to lease it under
the PLAS scheme.
Mahanjana
agreed, albeit quite reluctantly
and after much persuasion by her - because it was really his
intention to own the property -
that he would explore this route,
hence he submitted a business plan, a necessary requirement under
PLAS.
When the process
ran its course again before the district screening committee under
the PLAS model it went quickly and the application
was successful.
However, budgetary constraints prevented the department from
implementing the approval until the next budget
term, which was due
to commence on 1 April 2009.
The application
thereafter served before the provincial screening committee and was
finally approved.
She could not agree
with Mr.
Matta’s
assessment of
Mahanjana’s
two applications under LRAD and PLAS constituting a single project.
She explained it thus in her testimony:
“
They are
totally different. As a project officer, as much as you could use
your discretion the beneficiary would have to agree for
you to alter
it from LRAD to PLAS because the difference is that in LRAD we give
you a grant you do not pay back, it is yours and
that’s the
end. With PLAS you take commitment to pay a lease annually and there
are clauses in the lease agreement that says
if you do not pay you
are then taken out, so it has no security in a way, that’s the
difference of the two programmes.
Yes and once the
grant is given and the land is acquired that’s the end of it,
the grant doesn’t come back? Yes.”
Regarding the “
to
whom it may concern letter
” of 18 December 2008, she
confirmed that this originated from her. Although the project had
been approved, Standard Bank
was still intent upon executing. The
defendant had pleaded with her to do something to get them to hold
off on the imminent execution.
A call to the bank established that
something in writing was required which resulted in the letter. She
personally gave this
to the defendant to take to the manager of
Standard Bank in Queenstown.
As for plaintiff
and
Tessendorf
, the witness refuted any knowledge of their
involvement in the transaction although she knew of their existence
by virtue of
the Anne Chamber’s agreement. She, personally,
dealt only with the defendant and
De Waal-Baxter
attorneys.
If the plaintiff was involved, in her opinion, there would have been
direct dealings with her on all salient processes
including the
steering of the application through the district screening
committee. Asked what an estate agent should do to fulfill
a mandate
she testified as follows:
“
We expect of
an estate agent to make sure that the sale goes through. Basically
you would receive an offer as attached here. After
assessing or
registering it, giving it a project file, you would then link with
the project – with the estate agent to get
your title deeds,
whatever documents you need. We also expect them, after we have
appointed valuers, where an agent is actually
involved we do not put
in terms of reference the seller, we include the agent’s name.
They are expected to take the valuer
to the farm to show them
whatever is on the farm. In this case where we needed a business plan
we expect them to facilitate the
business plan also. We only come to
discuss the matter with the seller when we however cannot agree with
the agent on the price,
that’s when we insist on seeing the
owner of the farm, that’s the only time we come to meet them
and then also when
we send the Deed of Sale.
So you don’t
have dealings with the seller? --- No.
You deal at most
material times with the agent? --- With the agent, yes.”
She
conceded however that, notwithstanding her own expectations of what
was required from estate agents in respect of these transactions,

these might not necessarily co-incide with what the terms of the
mandate were. Her only knowledge of the plaintiff’s alleged

entitlement to commission was when
Tessendorf
called
to ask when the department was paying. This led to her sending to
him a copy of the letter which she had written to
De
Waal-Baxter
on
26 January 2009 formalising the offer.
21
This
would have been on 2 February 2009 as is indicated on a fax report
at the head of this letter. Later, she met him in her
office one day
as she was on her way out. He said he had come to introduce himself.
Under cross
examination she agreed - as Mr.
Matta
had testified - that
the offer to purchase was sufficient to iniate the application to
the department on behalf of a beneficiary.
Further, no new
documentation was necessary in respect of NERPO’s PLAS
application save a business plan, which was a subsidiary

requirement. Everything else that was on the file was used including
the Anne Chamber’s agreement. She added that there
was a form
used by the Queenstown office which they required from a beneficiary
to be attached, but did not elaborate further
in this regard.
Under examination
by the court,
Molokoane
conceded that in terms of PLAS as
currently implemented it is not envisaged that there will be even a
gradual acquisition of
land by beneficiaries. She explained that in
the first year of PLAS’s implementation, the intention was
indeed that the
beneficiary would lease for a period of between 3
and 5 years with an option to buy, but that in 2010 the Minister had
issued
a directive that no such land would be transferred. Even old
state land currently owed cannot be transferred to any beneficiary.

She agreed that this is not consistent with the department’s
stated objective to acquire 30% of the arable South African
market
by 2014, and might invite a constitutional challenge.
Notwithstanding
this, she conceded that in terms of the department’s reform
objectives, land is not simply acquired for
the sake of it. There
would always have to be a beneficiary in that process.
That concluded the
case for the defendant.
In determining
claims for payment of estate agents’ commission, the question
whether an agent is entitled to such payment
depends on what was
agreed between the parties and not upon any special rules of law.
22
The proper approach
is to look at the contract and to see whether, according to its
terms, construed in accordance with the ordinary
principles of
construction, the event has happened on the occurrence of which the
commission is expressed to be payable.
In
casu
neither
the mandate nor its terms are in issue. The plaintiff was simply to
find the defendant a purchaser for his farm. The common
cause
evidence is that the defendant was by force of circumstances
desperate to dispose of his property, and appeared not to
mind
terribly who bought it.
In
Aida
Real Estate Limited v Lipschitz
23
Marais J
outlined the duty
of the estate agent if he is to earn remuneration by way of
commission for selling a property as follows:
“
The
law with regard to a matter of this kind is usually stated in the
following form: the duty of the estate agent, if he is to
earn
remuneration by way of commission for selling property, is to
introduce to his principal (the seller) a purchaser who is willing

and financially able to buy the property, and he earns the commission
if the sale is concluded with that purchaser at the stipulated
price
or a price ultimately proved to have been acceptable to the seller.”
24
In this instance
the fact of the introduction of
Mahanjana
to the defendant’s
property is not in issue although its direct connection to the
ultimate sale concluded between the defendant
and the government is
in contention.
In this regard Mr
Kincaid
, on behalf of the defendant, relied on several
factors in support of the submission that the introduction of
Mahanjana
was not the effective cause of the concluding sale,
the most obvious of these being that the Anne Chamber’s
agreement is
fundamentally different from Annexure “A”
in respect of both price and subject matter. So too her agreement
contains
the suspensive condition which made it subject to the
approval by the department and the furnishing of guarantees by 30
November
2009, absent the fulfilment of which it lapsed after this
date.
Further and in any
event, so it was submitted, the department was already aware of the
existence of the defendant’s farm
and his desire to sell it -
courtesy of communication between the Commission and
De Waal-
Baxter
with regard to the earlier land claim concerning erf 201
adjacent to
Weltevreden.
It could not be said, therefore,
that but for the introduction of
Mahanjana
the department
would not have acquired it, either through the process of land
restitution (in the event of the land claim succeeding),
or land
redistribution, as he submitted happened in due course.
Mr
Kincaid
also relied on several intervening factors as distilling or
overwhelming the plaintiff’s introduction of
Mahanjana
to the property, namely the failure of NERPO’s application for
financial assistance utilising the LRAD model – which
negative
decision was accepted by
Mahanjana
;
Molokoane’s
empathy for the defendant and her independent attempts to persuade
Mahanjana
to rather submit a business proposal under the PLAS
scheme and its ultimate success on this basis culminating in the
sale agreement
(Annexure “A”); and the NERPO development
trust taking over the property per lease (Exhibit “B”).
Mr
Brooks
on
behalf of the plaintiff submitted, however, that the plaintiff’s
introduction of
Mahanjana
- and the commencement of the
department’s internal processes initiated by the submission of
the plaintiff’s offer
-culminated in the eventual sale a
single line of cause and effect (a seamless unbroken chain of
events) being in evidence throughout.
Marais J
continued in
Aida Real Estate v Lipschitz (supra)
-
concerning the dictum referred to in paragraph 90 above - to expound
upon the principles to be applied in determining causality
as
follows:
“
A
proviso has been added to the effect that the introduction of the
able and willing buyer must have been the effective cause or
causa
causans
of
the sale. If a new factor intervenes, causing or contributing to the
conclusion of the sale, and the new factor is not of the
making of
the agent, the final decision depends on the result of a further
enquiry –
viz,
did
the new factor outweigh the effect of the introduction by being more
than or equally conducive to the bringing about of the
sale, as the
introduction was, or was the introduction still overridingly
operative? Only in the latter instance is commission
said to have
been earned. This enquiry is not a metaphysical speculation in the
result of cause and effect. It requires, as is
said in
Webranchek
v L. K. Jacobs and Co Ltd.,
1948 (4) SA 671
AD
,
a commonsense approach to the question of what really caused the sale
to be concluded or, to put it differently, as it is said
in a
restatement of the law in America, whether it is “just”
that the agent should receive credit and compensation
for the work he
has done for the seller. In regard to this latter version, it may be
said in passing that this question has nothing
to do with the amount
of work the agent puts into it. The mere furnishing to this
prospective buyer of the principal’s address
or the location of
the property offered may be sufficient to entitle him to claim
commission from the seller provided a line of
cause and effect can
reasonably be traced from the introduction to the conclusion of the
sale………………Something
more
than a nude
causa
sine qua non
is
contemplated by this type of contract of agency. The agent’s
instrumentality must have been in all the phases from the

introduction to the sale, consistent, uninterrupted and a major
positive force, working towards the successful conclusion of the

transaction. The test is an objective one …”
25
Before turning to
the causality enquiry, I need say a word about the quality of the
plaintiff’s evidence. She struck me
as being an
unsophisticated business person who did not understand the niceties
of the law. Her simple understanding of what
was required from an
agent was to introduce a purchaser, get a signed offer and
follow-up. No more
,
no
less. She had little appreciation of any distinction between
concepts such as ownership and lease, or the import of suspensive

conditions. Neither did she set her mind to the formal nature of an
acquisition under the Land Reform:
Provision of Land and Assistance
Act No. 126 of 1993
, or the internal processes of the department by
which these ends stood to be achieved. Similarly she did not
appreciate the value
in her business of keeping formal notes or
records. This notwithstanding, my contemporaneous reflections of her
demeanour when
she testified was that she was neither cavalier nor
dishonest.
She readily made
concessions where she understood the complex scenarios put to her,
but was otherwise overwhelmed by the cross-examination
and entirely
out of her depth. She appeared to be genuinely perplexed and aghast
at the thought that the defendant could disavow
liability to pay
commission to her, this premised on her simple understanding that
she had introduced her buyer, had done what
was normally expected of
an agent, and was therefore entitled to payment. This was consistent
with her response - in relation
to the criticism against her failure
to keep proper records - that she could never anticipate that "
we
are going
to have a court case one day on this
", and
that this was the first time something like this had happened to her
in her 18 years’ experience as an agent.
Once
Tessendorf
had revealed that this was her first land reform transaction,
her inexperience and nescience of the department’s internal

processes was given context. Coupled with her poor memory of salient
events and an absence of record keeping, the plaintiff was
a
particularly unhelpful witness, but her evidence was to a large
extent supplemented by the rest of the evidence which was either

common cause or unchallenged.
In considering the
various factors having a bearing on causality, I deal firstly with
the suggestion that the introduction of
Mahanjana
was a
neutral factor in the conclusion of annexure “A” because
the Queenstown office was alleged to be aware of the
existence of
Weltevreden
and of the defendant's desire to sell it
independently of the plaintiff's introduction.
Molokoane
conceded
in this regard that the value of
Weltevreden
indicated
in the correspondence exchanged between the Commission and
De
Waal-Baxter
in
2007 concerning the land claim played no role in the assessment of
the project, whether in respect of
Mahanjana's
application
under LRAD or in terms of PLAS. She explained that the validity of
valuations extended for a period of six months
to a year so that in
this instance the historical valuation obtained for the defendant’s
property was stale by the time
the matter first came before the
district committee.
26
Although
she was at pains to suggest that they might have used this as "
an
offer
",
there was no evidence led by the defendant that anything in relation
to the prior process concerning the land claim conduced
ultimately
to the sale concluded. The Commission had advised
De
Waal-Baxter
some
ten months before the introduction that they were “
excited
and accept the offer to sell farm No. 201 to (
it)”
27
,
but nothing seems to have come of this. In the absence of the
defendant having testified, the correspondence exchanged between

those parties in my view has neither significance nor bearing.
In any event
Molokoane
conceded that it was in fact the submission of the
Anne Chamber’s agreement which served as the basis to initiate
the department’s
internal processes in terms of LRAD,
commencing with its consideration of the LRAD application.
Further the
plaintiff’s introduction of
Mahanjana
was not denied on
the pleadings, neither was it suggested that the defendant would
rely on his prior dealings with the Commission
as dispelling the
initiating cause relied upon by her. On the contrary, the
correspondence between
De Waal-Baxter
and the Commission in
this connection was introduced into evidence only after the
plaintiff testified, almost as an afterthought.
Finally, in
Molokoane's
own assessment of the plaintiff’s efforts
as estate agent she considered that there was no doubt that if
NERPO's application
under LRAD had succeeded - at the reduced
purchase price of R6 800 00,00 - she would be entitled to her
commission. Therefore
in my view any debate about the government
purchasing
qua
the land claim falls away. Although Mr.
Kincaid
suggested that I should have no regard to
Molokoane’s
opinion in this regard elicited under cross-examination, it is
significant that she was prepared to accept the introduction of
Mahanjana
as the initiating cause in one instance, but not in
the other.
Self-evidently
the government is a different purchaser than the one envisaged by
the Anne Chamber’s agreement, but that
does not mean that the
plaintiff is not entitled to payment of her commission for that
reason alone. Mr.
Kincaid
correctly
conceded as much. See in this regard
Joubert
and Others v Costner
28
in which a young
woman was introduced to certain property in respect of which she
hoped to establish a commune. There were some
complications with
regard to the financing, whereupon her father stepped in to assist
and bought the property for her. A submission
that the introduction
wasn’t to the actual purchaser was rejected and in the result
the agent was awarded his commission.
The court held that the
central enquiry is one of causality. If the original introduction
led to the sale, then it does not matter
that there is a difference
of party.
29
In
Edwards
v Wynberg Club
30
there was an
exchange of properties and a number of parties involved in making
this happen. The agent introduced a certain Mr.
Engelbrecht
to
the property, but he did not become the purchaser, another entity
did. There was an intervention by a consortium ultimately
which it
was contended made it possible for the respondent to exchange its
property for the property in question. It appeared
that the
appellant (agent) did not introduce the consortium to
Engelbrecht
or to the club’s
property. Furthermore, the appellant was not involved in the
negotiations between the consortium and
Engelbrecht
which led to the
agreement whereby the consortium purchased the shares in Fitzroy Bay
(Pty) Ltd nor, for that matter, was the
appellant involved in the
negotiations between the consortium and the respondent which
culminated in the purchase by the consortium
of the club’s
property. The prospective “
purchaser
”
of the club’s
property that was introduced to the respondent by the appellant was
the respondent. However neither
Engelbrecht
nor his company,
Engelmove
(Pty) Ltd
purchased
that property. The actual “
purchaser
”
was the party
introduced to the club’s property by one
Janice
Orpen
,
she being the agent of
Engelbrecht
and not the
sub-agent of the appellant. Despite the complex exchange, the
introduction by the agent to
Engelbrecht
to Johnstone was
held to be the effective cause of it. This conclusion was motivated
thus by the court:
“
Whether
in a particular case the agent’s introduction can properly be
said to be the effective cause of the sale must depend
on the
particular facts and circumstances of the case. In a case where the
eventual purchase is not the person introduced by the
agent, but a
third party brought into the picture by the person whom the agent has
introduced, the agent’s entitlement to
commission cannot, to my
mind, depend solely on whether the relation between the eventual
purchaser and the person introduced is
such that the sale can be
regarded as virtually one to the person whom the agent has
introduced. That this cannot be the decisive
factor is evident from
the decision of the Appellate Division in
Nelson
v Hirschhorn (supra).
In
that case the agent’s claim for commission was upheld even
though the eventual purchase was not the person whom the agent
had
introduced, but a party who became involved as a result of the
efforts of that person. There was no suggestion, nor could there
have
been on the facts of the case, that the sale to the eventual
purchaser could be regarded as being in substance a sale to the

person whom the agent had introduced.
In the present case
there is in my view also no room for a finding that the relation
between the consortium and Engelbrecht was
such that a ‘sale’
of the Club’s property to the consortium can be said to be
virtually a sale to Engelbrecht.
Nevertheless, it was the appellant’s
introduction of Engelbrecht to Johnstone that was the cause of the
respondent becoming
interested in the Chelsea Arms property. Those in
control of the respondent obviously regarded the Chelsea Arms
property as a desirable
substitute for the Club’s property. It
was this factor - the respondent’s desire to acquire the
Chelsea Arms property,
itself a consequence of the Appellant’s
introduction - that in my view remained operative throughout the
negotiations which
resulted in the eventual exchange of the two
properties. Furthermore, although Engelbrecht was not the eventual
purchaser of the
respondent’s property, it was due to
Engelbrecht that the respondent disposed of its property and acquired
in its place the
Chelsea Arms property of which Engelbrecht was
previously the effective owner. Although Engelbrecht decided that he
no longer wanted
the Club’s property he clearly remained intent
on disposing of the Chelsea Arms property. In order to achieve this
he shrewdly
exploited the respondent’s interest in the Chelsea
Arms property – an interest which, as I have said was
engendered
by the appellant’s introduction – and
appointed agents to find someone who was willing to acquire the
respondent’s
property by means of the shares in the company
owning the Chelsea Arms property. In my opinion the appellant’s
introduction
of Engelbrecht to Johnstone was, as the appellant
alleged, the effective cause of the exchange …”
31
In this instance,
one cannot overlook the particular context in which
Mahanjana
was approached for
his interest in the defendant’s property as a “
beneficiary,
”
32
neither the limited
mechanisms in place by the department at the time by which access to
redistributed land could be realised.
Regardless of how the
plaintiff understood the matter,
Mahanjana
confirmed that the
offer was intended to be a land reform transaction and there
can
be no doubt that acquisitions pursuant to the Land Reform: Provision
of Land Assistance Act present a different category of
transfers
with unique features. Even if
Mahanjana
wished
for NERPO to acquire the land in its own right – as was
indicated by the offer – it was going to be through
the
assistance of the department, and no other financial institution.
33
The
promise of a sale being concluded lay in what the department could
do by way of its powers. Although
Molokoane
suggested
that he
might
approach a private financier, this was only after the first LRAD
application failed. Moreover, there is no evidence that
he in fact
did so.
The
ultimate manner in which the defendant’s property was made
accessible to NERPO's development trust is not mere co-incidence

albeit
Mahanjana
testified
that he was unwittingly misled into believing that the lease held
the promise of the trust exercising an option to purchase
in due
course.
Matta
and
Molokoane
explained
that the stated objective of the department was to acquire 30% of
arable land by 2014 per the mechanisms in place at
the time. It is
common cause that the LRAD model became problematic and that these
applications were re-designed under PLAS.
For various reasons
government has presently resolved to acquire land in its own name
rather than to award grants under the LRAD
program.
Molokoane
explained how this might attract a constitutional
challenge since it defeats the aim of redistributing farming
property to black
persons pursuant to government’s
Constitutional mandate, but
Matta
clarified that the focus is on access to such land,
not necessarily ownership thereof.
In
the scheme of things, therefore,
and given the way
Mahanjana’s
application mutated, there is in my view no
disconnect between
Mahanjana
(representing NERPO) as
potential purchaser and government as actual purchaser instituting
the trust as lessee when these peculiarities
are borne in mind.
The
trust’s interest being limited to that of lessee -
unfortunately for it without any option to purchase - does not break

the causal chain. It succeeded in gaining access to the property by
the only remaining land reform mechanism possible at the
time.
To return to the
central enquiry, the approach to be adopted by the court in
determining effective cause of sale has been illustrated
in a number
of judgments which serve as a useful guide.
In
Aida Real
Estate (supra)
the property was introduced by the agent to a
husband and wife whereafter the wife advised that they were no
longer interested
in purchasing. This was not on account of the fact
that she and her husband had lost interest in the house as such, but
because
he got the impression that the agent was not doing his work
properly in trying to sell the house. The husband later negotiated

with the seller on his own. A sale was concluded after the seller’s
spouse granted a company controlled by the husband
and his spouse a
second bond, thus removing an obstacle in the way of concluding the
purchase. Despite a break in negotiations,
and the fact that the
agent had dropped out of the negotiations, the court held that it
was the agent’s introduction and
efforts which were the
effective cause of the sale going through.
In
Webranchek
v L.K. Jacobs & Co Ltd
34
there was an
introduction; some quibbling over price and then a rival firm of
estate agents became involved who resolved an issue
around price.
Only then did the eventual sale take place. Despite this
intervention by the rival agent, the court held that the
first agent
was entitled to his commission because it was his introduction that
“
aroused
”
the interest of the
purchaser. The sale had clearly been attributable to the efforts of
the first agent that had constituted the
“
dominant
or effective cause of the sale
”
.
35
In
Nach
Investments (Pty) Ltd v Knight Frank South Africa (Pty) Ltd
36
,
despite the sale of the property to a tenant with a right of
pre-emption who the agent had clearly not introduced - but in
circumstances in which an exclusive mandate was given to sell it -
the court found that it was the effect of an offer presented
by the
agent from an alternative source that effectively caused the tenant
to exercise his option to purchase.
A different
approach was adopted in the matter of
Wynland
Properties CC v Potgieter and Another
37
.
In this instance the purchaser had initially looked at a property at
the introduction of the agent but lost interest in it because
it had
certain structural defects. Some time thereafter she had been
persuaded by her sister- in- law to have another look at
it and to
talk to the sellers to see if she could find out about these
structural defects. She inspected the property and elicited
the
assistance of an engineer who gave her a report that they could be
dealt with. She then concluded a sale directly with the
sellers. The
court held that it was the subsequent intervention of the
sister-in-law and the report of the engineer which was
the effective
cause of the sale and the agent was held not to have qualified for
commission
38
.
Also
against the plaintiff, but distinguishable, is the matter of
Basil
Elk Estates (Pty) Ltd v Curzon
39
.
In this regard a couple looking for accommodation were attracted to
a particular property. They were interested but the subsequent

miscarriage of the wife caused them to walk away from the deal. The
seller herself fell pregnant and elected not to proceed with
a sale.
She took the property off the market. Subsequently the erstwhile
potential purchaser had a change of financial circumstances
when he
won on the races and was introduced to the same property by a
different agent through whom the sale was concluded. The
court held
in the circumstances that the first introduction was not the
effective cause, most notably because there was a change
of agent
and a lapse of approximately 9 months since the purchaser initially
walked away from the deal.
In
Et
Mano Limited v Nationwide Airlines (Pty) Ltd
40
the court held that
the direct sale of an aircraft to a purchaser to whom the seller was
previously introduced by an agent - without
the latter’s
intervention - was necessitated by unforeseen circumstances and was
moreover separated from the agents’
prior failed endeavours to
sell by a lapse of several months. Hence it was held that the agent
was not the effective cause of
the sale nor entitled to commission.
The court referred to the appropriate test as follows :
“
The
only event that would be regarded as breaking the chain of causation
between the agent’s endeavours and the eventual transaction
is
a sufficiently weighty intervening cause. What such an intervening
cause might be and when it will be weighty enough, depends
on the
facts of each case. In general the question revolves itself into the
question whether, on balance, it was the agent’s
exertions that
caused the purchaser to buy or whether the sale was rather due to the
impact of the intervening cause.”
In assessing the
agent’s expected involvement and the measure of his exertions
as a “
major
positive force
”
in
the chain of causation, it is to be noted that he is under no
obligation in the ordinary course to conduct the actual negotiations

or to see to the completion of the ultimate contract.
41
He is remunerated
for bringing about a specified event which he is incidentally under
no obligation whatsoever to bring about,
rather than for discharging
certain specified duties or obligations.
42
He is paid “
by
results and not by good intentions or even hard work.
43
As was highlighted
in
Aida
Real Estate (supra)
,
the question whether an agent should receive compensation for the
introduction has nothing to do with the amount of work put
into it
at all. This might well evoke some reticence on the part of the
seller to pay on registration of transfer what must seem
like an
inordinate sum of money for seemingly little effort put in by the
agent, but that is the nature of this type of contract
of agency.
44
In this instance
much criticism was made of the plaintiff and
Tessendorf’s
seemingly limited
role in facilitating the process from introduction through to the
successful application in terms of PLAS resulting
in the formal
conclusion of Annexure “A”, but the defendant himself
never testified to refute that anything more
was expected from the
plaintiff concerning the performance of her mandate beyond what she
said was necessary for her to do in
the circumstances. In
Barnard
Parry Ltd v Strydom
45
it was said that
the “
state
of mind
”
of
the purchaser leading up to the sale – not intending to be
analogous with the defendant’s desperate emotional state
in
casu
–
is
very material and his own evidence thereon may be of great
importance. There seems to be no reason why the defendant did not

testify, neither was it suggested that he was unavailable. On the
contrary, several references were made to the promise of what
he
would come say in his testimony. In this regard the dictum in
Elgin
Fireclays Ltd v Webb
46
is apposite:
“…
it
is true that if a party fails to place the evidence of a witness, who
is available and able to elucidate the facts, before the
trial court,
this failure leads naturally to the inference that he fears that such
evidence will expose facts unfavourable to him.
(See Wigmore, secs,
285 and 286). But the inference is only a proper one if the evidence
is available and it would elucidate the
facts.”
Molokoane’s
suggestion that the plaintiff had not performed by her standards of
what was expected of an agent involved in land reform transactions

can hardly supplement the defendant’s case in this regard. The
plaintiff, although she had been asked by the department
to look for
beneficiaries was not in this instance acting as the department’s
agent, but the defendant’s - and her
mandate was simply to
find a purchaser for his farm. It matters not in my view, therefore,
whether the plaintiff or
Tessendorf
personally conveyed the
valuation to the defendant or whether one or either of them were
involved in the redesign of
Mahanjana’s
original
application for finance under the PLAS model. Similarly it is
insignificant that the relevant documentation required
by the
Queenstown office in the process was procured from the defendant or
De Waal- Baxter
attorneys. For the plaintiff it was enough to
simply wait for the process culminating in registration of transfer
to unfold.
In the absence of any evidence by the defendant to the
contrary, what in fact evolved from date of submission of her offer
to
registration of transfer required neither her assistance nor
knowledge.
I mention, however,
that it was not unexpected that the plaintiff’s role would
recede into the background once the defendant
began to personally
present himself at the Queenstown office and plead his case. On
everyone’s account
Molokoane
was sympathetic to
his plight and quite taken with him. Indeed how could she ignore him
when he was there from early morning entreating
her to come to his
assistance? The evidence also revealed that
De-Waal
Baxter’s
offices
were next door to the Queenstown district office, so it is not
improbable that this facilitated the exchange of documents
and
communication between the department and the attorneys, leaving the
plaintiff ostensibly out of the loop.
47
I turn now to deal
with the submission that the Anne Chamber’s agreement was by
30 November 2008 a “
nullity
” for want of
compliance with the suspensive condition. The defendant offered no
countervailing evidence to the plaintiff’s
in this regard that
his specific instruction was not to revise the offer. Already by the
date
Mahanjana’s
LRAD application served before the
district screening committee for the second time, the offer did not
fairly reflect the events
which had by then unfolded in respect of
valuation and counter-offer in respect of price; or that the subject
matter of the purchase
had changed. This notwithstanding, it
sufficed for the committee’s purposes. Even later when the
PLAS application served
before it, these changes (and the further
obvious difference that the government represented through the
department would be
the purchaser if the application was approved
under that model), plus the fact that the agreement had by then
lapsed –
with reference to the date by when the department was
to approve the financing of the purchase price, did not offer an
obstacle
to the way forward. Its legal efficacy, or lack of it,
seemed to make not a jot of difference to the district screening
committee.
This it is entirely consistent with the plaintiff and
Tessendorf’s
evidence that the offer served merely to
get the ball rolling and that a formal deed would be concluded
later. It also fits in
comfortably with the evidence of
Matta
and
Molokoane
that the initiating application required no
particular formality. Indeed the offer at that stage, regardless of
whether the defendant
had “
renewed
” it, or
extended the period for the financial processes to run their course,
could hardly present as a perfect deed of
sale with all the
information ultimately contained in Annexure “A” as the
drafting thereof had to await the project
instruction letter. This
only followed much later, toward the end of January 2009.
Matta
confirmed too that it was standard procedure for the conveyancers to
draft a deed of sale, so nothing turns on this (or the legal
reality
that the offer had in law lapsed) as constituting a weighty
intervening cause breaking the chain of causation.
Molokoane’s
initiative, driven by her concern and empathy for the defendant’s
situation, in persuading
Mahanjana
- apparently against his
better judgment - to resubmit under the PLAS model after he had
accepted the declension under LRAD and
“
walked away from
the deal
” is indeed a critical factor in the causal chain.
Her efforts in this regard were quite commendable and saved the day
as
it were, but it was her duty - as testified to by
Matta
-
to assist in this manner by encouraging the redesign of projects
under the PLAS model.
Further, despite
giving the impression that her intervention on this basis was a
separate act divorced from anything which had
gone before, she was
obliged to concede that her efforts in resuscitating the project
were for nought unless
Mahanjana
came on board. There had to
be a lessee for the land to be purchased at all, and NERPO was it.
She made a fuss of insisting that,
despite the existing project file
being placed before the district screening committee, this was a
different and new project,
but this cannot be true if
Mahanjana
was critical to its success. Had he declined
Molokoane’s
invitation at this point to resubmit a business proposal under the
PLAS program, the line of cause and effect would indisputably
have
grown cold, but it was his revived interest in acquiring the
defendant’s property that clinched the final sale. The

plaintiff’s introduction of him to the property once again
became relevant.
Inasmuch as the
passing of time is a critical factor impacting causation, it is to
be noted that the period between the failure
of
Mahanjana’s
application under LRAD (11 November 2008), and the ultimate
success under PLAS (10 December 2008), was of very short duration.
It may fairly be concluded that if the application had succeeded
under LRAD, the payment of the plaintiff’s commission would

hardly have been contentious. But it was not. Even if the
resubmission of the application under the PLAS model was underway
without the plaintiff’s knowledge at this time, in her mind
she still had until 30 November 2008 for finance to be approved
and,
even thereafter, she had the blessing of the defendant to go ahead
on the basis of the initial offer presented. This waiting
ended
early December 2009 by when
Molokoane
had informed the
defendant – and the plaintiff claims to have known of this by
virtue of her exchange with
Dawn
of
Dawn Kemp Estates
who was also waiting for this outcome – that the department
had approved the sale. The deed of sale itself was only dated
in
February 2009, but this was because it was necessary for project
letters to first be obtained before
De-Waal Baxter
could be
instructed to draft the deed of sale. The further delay in
registration of transfer was attributable to the fact that
the
department was obliged to wait in the new financial year in order to
have funds to pay the purchase consideration. These
are accordingly
neutral factors.
Following
on the approval of the sale, it was never suggested to the plaintiff
that she would not be paid the commission due to
her on date of
registration of transfer. The formal deed of sale providing for
payment of commission
48
–
according
to
Molokoane
included
to indemnify the department in respect of such claims,
coincidentally supports such anticipation on her part. If the

defendant and his advisers thought that it followed logically that
there was no connection between the original introduction
and the
eventual sale, or that the interest of the plaintiff had naturally
passed with the failure of
Mahanjana’s
application
under LRAD, it is improbable that a commission clause would be
included in the formal deed unless the plaintiff had
a legitimate
expectation to be paid her commission. It appears rather jarringly
therefore that on the morning of registration
of transfer, and
seemingly unsolicited - because there is no correspondence
indicating that the plaintiff demanded payment of
her commission
until after the defendant’s disavowal of her entitlement
thereto -
De
Waal-Baxter
for
the first time suggested that she was not entitled to be paid. The
very act of doing so is consistent in my view with the
plaintiff’s
submission that her agency was still very much involved and the
defendant knew it - even if this meant only
that she was awaiting
registration of transfer in order to be paid her commission. The
reason for the defendant’s disavowal
and the timing of it is
instructive. It is based entirely on a legal argument that the offer
to purchase had lapsed some 6 months
earlier, in direct
contradiction to the defendant’s specific mandate not to rock
the boat as it were by formally amending
the offer or extending the
period by when financing for the transaction had to be approved. If
it were true that no expectation
on the part of the plaintiff to be
paid abided naturally after this date, it would surely have been
unnecessary to warn the plaintiff
that this was the defendant’s
thinking at all. I am accordingly constrained to find that this was
nothing more than an
opportunistic attempt on the part of the
defendant to avoid his contractual obligation to the plaintiff when
the promise of payment
to him - and the end of a harrowing and
stressful process - had at last become a reality.
In
the premises I am satisfied that the plaintiff has established on a
balance of probabilities that her introduction of
Mahanjana
and activities predominated as a causative factor in
the conclusion of the sale and that she is entitled to payment of
the commission.
Since it was conceded by the defendant that if the
plaintiff proved that she performed in terms of the mandate
commission was
payable by no later than the date of registration of
transfer, I am further satisfied that interest on the commission
should
accrue from this date.
In the result I
make the following order:
The defendant is to
pay commission to the plaintiff in the sum of 542 640.00 (inclusive
of vat), together with interest thereon
at the legal rate calculated
from 19 May 2009 to date of payment;
The defendant is to
pay the plaintiff's costs of the action; and
Mr.
Daliwonga Matta
is
declared a necessary witness
______________________
B C HARTLE
JUDGE OF THE HIGH
COURT
Date judgment
delivered : 9 March 2012
Appearance for the
Plaintiff : Adv R Brooks
Attorneys for the
Plaintiff : WYLDE & RUCHMANN INC.
2
nd
Floor, NBS Building
15 Terminus Street
EAST LONDON
REF. MR WYLDE/YM
Appearance for the
Defendant : Adv J Kincaid
Attorneys for the
Defendant : DE WAAL-BAXTER ATTORNEYS
c/o Bate Chubb &
Dickson Inc.
Suite 3, Norvia
House
34 Western Avenue
Vincent
EAST LONDON
REF. MR
KRETZMANN/KP/
B232/W71522
1
Annexure
“A” is a memorandum of agreement of purchase and sale
entered into between the defendant and the national
government,
represented by Dr
Daliwonga Armstrong
Matta
, in his capacity as chief
director: East Cape Land Reform Office. The last date of signature
of the agreement - which according
to Clause 12 thereof is the
effective date of sale - is 24 February 2009. It is evident from
correspondence included in the plaintiff’s
bundle (Exhibit 17
– 18 and 19) that the sale is a land reform transaction and
that transfer was registered on the basis
that approval for the
acquisition was obtained pursuant to the provisions of section
10(1)(b)(i) of the Land Reform :
Provision of Land and Assistance
Act, No. 126 of 1993
.
2
Previously
the Department of Land Affairs
3
It
is common cause that these persons are emerging black farmers whom
the department seeks to benefit for land reform purposes.
4
It
was not in dispute that
Tessendorf
is similarly the holder of the necessary fidelity
fund certificate.
5
This
is a letter dated 18 December 2008 addressed by the district
director of the Queenstown office, Ms
Malerato
Molokoane
, to Standard Bank requesting
them to hold back the sale in execution because of the successful
approval of the sale. Different
copies of the letter were included
in the plaintiff’s bundle marked A 12, A 49 and
Exhibits
“
C” and “D”. The copies
differ with reference to handwritten annotations and fax
transmission reports on each
of them.
6
.
This is a letter addressed by the department directly to the
defendant informing him of the outcome of the valuation and
requesting
him to confirm that the price is acceptable in order to
submit the project to the district screening committee which was to
meet
on 11 November 2008 (Exhibit A 10).
7
Exhibit
A11.
8
Exhibit
A13.
9
Exhibit
A15.
10
Exhibit
A20.
11
That
it was faxed is evident from both Exhibits A12 and “D”,
since the plaintiff’s fax numbers appear at the
top of these.
The only clear fax report, however, is 7 July 2010 on A12.
12
These
programs, outlined later in the plaintiff’s case, per Messrs
Tessendorf
,
Mahanjana
and
Matta
,
are referred to below.
13
These
assertions put to the plaintiff were never confirmed in subsequent
testimony. Neither the defendant nor
Althea
Petzer
was called as witness.
Significantly, however, it was put to the plaintiff that she had
(contemporaneously) faxed to
Petzer
a copy of
Molokoane’s
“
to whom it may concern letter
”
which the plaintiff had apparently sourced from
Dawn Kemp Estates, the other agents interested in the defendant’s
wife’s
property transfer.
14
Molokoane
testified that this grant was R434 000.00 per beneficiary, but
nothing turns on this.
15
A
further difficulty, it later emerged during the hearing, was that
owners who had acquired property courtesy of the LRAD strategy
were
on-selling these to white farmers, thus defeating the department’s
objective to acquire 30% of the country’s
arable market by
2014.
16
It
seems that contrary to
Mahanjana’s
expectation that the Development Trust would have
an option to purchase the farm - the title of the document
foreshadows such
an option and paragraph 6 also makes reference
thereto - such a provision was ultimately not provided for in the
lease agreement.
17
Exhibit
A49 in this instance.
18
As
indicated above, the promise of what the defendant would come and
say never materialised as he failed to testify.
19
At
page 246 of the transcribed record.
20
This
erf is adjacent to
Weltevreden
and was the subject of a land
claim which, it transpired from
Molokoane’s
evidence,
has presently been de-gazetted.
21
Exhibit
A15.
22
Nach
Investments (Pty) Ltd v Knight Frank SA (Pty) Ltd
[2001] 3
ALL SA 25
(A).
23
1971
(3) SA 871
(WLD).
24
At
873 H.
25
At
873 H –
874 F.
26
The
valuation was never discovered, neither introduced into evidence.
27
Exhibits
E and F refer. The Commission’s letter incidentally does not
state pertinently that it was interested in buying
Weltevreden
.
It is further common cause that despite the passage of time erf 201
still belongs to the defendant and that the land claim pertaining

thereto was recently de-gazetted.
28
1982
(4) SA 540
(C).
29
See
also paragraph 111 below in respect of
Aida Real Estate
(supra).
Despite the later purchase by a company, the
husband and wife who controlled the company were identified as one
with the company.
30
1990
(2) SA 429
(C).
31
At
439 B.
32
In
finding beneficiaries for the department the plaintiff and
Tessendorf
were focused on presenting only candidates who
might benefit from the department’s land reform objectives
33
This
accorded with the plaintiff’s simple understanding that, in
presenting the offer,
Mahanjana
was going to buy “
through
”
the department.
34
1948
(4) SA 671
(AD).
35
At
685.
36
[2001]
3 All SA 295
(SCA).
37
[1999]
3 All SA 576
(C).
38
There
is not much in the summary of facts from which to critically analyse
the causality finding, but a significant determination
was that the
purchasers would have made contact through the intervention of the
sister-in-law even if the agent had not introduced
the property to
the purchasers.
39
1990
(2) SA 1
(TPD).
40
2007
(2) SA 512
SCA at 519 C - D.
41
Van
Zyl & Seuns (Edms) Bpk v Nel
1975 (3) SA 983
(N).
42
John
H Pritchard & Associates (Pty) Ltd v Thorny Park Estates (Pty)
Ltd 1967 (2) SA 511 (D) 577
43
Aida
Real Estate Limited, (
supra),
at 875 H.
44
See
Doyle v Gibbon
1919 TPD 220
at 223 where the agent
handed the prospective purchaser a card to view the property. The
purchaser bought directly from the owner
despite leaving the parties
to get on with their own business, but the simple leaving of a card
by the agent was held to be the
causa causans
of the sale.
See also
Machonochie’s Executrix v Bidewell-Edwards
(1982) 9 SC 204
in which the court endorsed the principle that the
sale effected through an agency entitled an agent to his commission
“
however small his trouble in effecting the sale may have
been
”. In this instance an advertisement placed in a
newspaper published by the seller and seen by the purchaser was held
to
be the effective cause of the sale notwithstanding that the agent
had previously introduced the purchaser to the property. But
these
negotiations were broken off and communications had ceased entirely.
45
1946
AD 931.
46
1947
(4) SA 744
at 749.
47
This
explains why, except for the initial letter submitting the offer and
contentious letter in which
De-Waal
Baxter
refers to a communication
addressed by the department to the estate agents, none of the
correspondence in the bundle directly
evidences the plaintiff’s
involvement. Contrariwise this may be an indication of the
plaintiff’s relaxed business
practices.
48
Clause
21 of Annexure “A”