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[2009] ZAGPPHC 137
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Daubern t/a Daubern Properties v Swart (8009/06) [2009] ZAGPPHC 137 (5 November 2009)
IN THE HIGH COURT OF
SOUTH AFRICA
(NORTH GAUTENG HIGH COURT,
PRETORIA)
DATE: 05/11/2009
CASE NO: 8009/06
UNREPORTABLE
In the matter between:
ANTHONY GRAY DAUBERN t/a DAUBERN
PROPERTIES
Applicant
and
WILLEM DANIEL SWART
Respondent
________________________________________________________________
JUDGMENT
________________________________________________________________
MURPHY
J
1. The plaintiff, an estate agent,
claims commission in the amount of R560 000, together with interest
arising from the sale of
a property previously owned by the
defendant.
2. It is common cause that on 15
November 2004 the defendant gave the plaintiff a mandate to sell his
property, being Portion 85
of the farm Hartbeeshoek 303, Registration
Division JR Gauteng. In terms of this written mandate the defendant
granted the plaintiff
a sole mandate which was valid and irrevocable
until 30 April 2005. The plaintiff was required to market the
property at a price
of R6 million plus commission. The commission
clause read:
“
Agente
Kommissie sal bereken word teen 7% van die totale koopsom, of soos
ooreengekom deur albei partye, en sal betaalbaar wees
uit die eerste
beskikbare fondse wat betaal sal word.”
3. The particulars of claim disclose
three possible causes of action. The first is that on 10 January
2005, CA Daubern (the wife
of the plaintiff employed in his agency)
introduced the property to Mr Johan Annandale who represented a
company, Marble Gold (Pty)
Ltd which eventually purchased the
property on 9 August 2005, for R8 million and hence that she was
entitled to the commission
under the mandate of 15 November 2004.
The second claim, pleaded in the alternative, in the event that it is
found that no introduction
occurred on 10 January 2005, is that the
defendant granted the plaintiff an oral mandate on 17 May 2005 and
that the plaintiff
introduced Annandale to the property on 19 May
2005 when she physically took him to the property and that such was
the direct cause
of the sale. Thirdly, it is alleged in both
instances that the plaintiff was the effective cause of the sale and
entitled to commission
on that basis.
4. With regard to the first mandate,
the defendant admitted it had been concluded but pleaded that it was
justifiably cancelled
on 21 January 2005. The defendant denied that
Annandale was introduced to the property by Daubern in January or
May, but pleaded
that he was introduced to the property on 1 April
2005 by Ms A Kruger and Mr J Horn. It was admitted however that
Daubern handed
over certain documents regarding the property to Trysa
Annandale, the wife of Annandale. The defendant accordingly denied
that
the alleged oral mandate was given to the plaintiff in May 2005,
that the plaintiff introduced the purchaser to the property and
that
the plaintiff was the effective cause of the sale.
5. The defendant raised a special plea
that the plaintiff’s claim had prescribed. This can be dealt
with straightaway. Summons
was initially issued against the defendant
by Daubern. She was substituted as plaintiff by the present
plaintiff pursuant to an
order of court on 28 August 2008. In terms
of clause 7.1 of the sale agreement between the defendant and Marble
Gold, the latter
was obliged to pay a deposit of R100 000 on 8 August
2005. The defendant contended that in terms of the commission clause
of the
written mandate of 15 November 2004, the commission “sal
betaalbaar wees uit die eerste beskikbare fondse wat betaal sal
word”. It is common cause that the purchaser paid the deposit
on 12 August 2005. The defendant accordingly submitted that
the
commission in terms of the written mandate became due and payable at
least on 12 August 2005 being the date on which the first
funds
became available. He submitted that the date of substitution should
be regarded as the date of interruption, being 28 August
2008 and
hence the claim prescribed on 12 August 2008.
6. The special plea is not
sustainable, in my opinion, because there is nothing in the sale
agreement specifying the purposes for
which the deposit could be
applied. Clause 7.2 of that agreement expressly provides that the
purchase price shall be payable upon
registration of the property
into the name of the purchaser. It is common cause that the purchase
price was paid in two further
additional payments, R3,9 million on 4
October 2005 and R4 million on 20 December 2005 and that R8 million
was paid over to the
defendant on the latter date. Accordingly, the
first funds to pay the commission were available to the defendant on
20 December
2005. The deposit was held in the trust account not only
for the benefit of the defendant but was refundable under certain
circumstances.
Moreover, as I have said, nothing in the agreement
permitted payment of the deposit or any part of it to the estate
agent. The
commission in any event exceeded the amount of the deposit
by R460 000. Payment to the seller (the defendant) was permissible
only on registration, as in fact happened. There is accordingly no
merit in the special plea in that prescription would have occurred
on
20 December 2005 and was interrupted by the substitution order on 28
August 2005. The special plea is therefore dismissed.
7. The primary and determinative issue
between the parties is whether the plaintiff was the effective cause
of the sale. This involves
a factual determination of whether the
plaintiff introduced the purchaser to the property and whether or not
the plaintiff was
mandated at the relevant times. However, regarding
the latter, it needs to be kept in mind at the outset that an
unempowered agent
may still be the effective cause of a sale and thus
entitled to commission. The inquiry in such a case is normally
whether despite
the termination or non-existence of a prior mandate
the work done by the unempowered agent was sufficiently significant
to merit
the award of commission even though not constituting the
immediate or proximate cause of the ultimate transaction -
Le
Grange v Metter
1925 OPD 76
at 80;
Doyle v Gibbon
1919
TPD 220
; and
Basil Elk
Estates (Pty) Ltd v Curzon
1990
(2) SA 1
(T) at 3D-E, 6E-G. Showing the property to the prospective
purchaser and introducing the purchaser to the seller may in the
circumstances
be causally significant and contribute sufficiently to
the outcome in a way that despite the termination or absence of a
valid
mandate would still entitle the agent to commission.
8. Although having some overall
relevance to the circumstances, the validity and existence of the
first and alleged second mandates
are facts of less relevance than
the conduct of the plaintiff throughout the period of Daubern’s
involvement and the significance
and sufficiency of that conduct as
causative factors contributing to the final result, the sale of the
property.
9. As I have said, it is common cause
that the written mandate was concluded on 15 November 2004. The
parties are in dispute about
whether it was lawfully cancelled on 21
January 2005. The plaintiff in any event contends that Daubern
introduced Marble Gold
to the property before the purported
cancellation of the first mandate. Daubern testified that she met
Trysa Annandale on 10 January
2005 while they were both standing in a
queue at Acacia Town Council. They struck up a conversation during
which Daubern informed
Trysa that she was an estate agent. Trysa
asked her if she knew of any land in the area that was available for
development. Daubern
told her that she was busy marketing three
properties (one of which was the defendant’s property) in
Amandasig. Daubern
and Trysa then agreed to meet at the home of
Trysa’s daughter, Ms A Kruger, later that day where Annandale
would be present.
Daubern went home, gathered together all the
relevant documentation concerning the property and went to make
photocopies of larger
maps at the town council. Later that afternoon
she went to the home of Ms Kruger where she met Trysa and Johan
Annandale. There
she handed the relevant documents to Annandale, who
told her that he would review them properly later.
10. This evidence has not been
contested or challenged in any meaningful way. Particularly
noteworthy is the fact that neither
Annandale nor his wife were
called as witnesses by the defendant to counter the plaintiff’s
version. Nor was Ms Kruger (Annandale’s
daughter), called
either, despite the averment in the plea that she had introduced
Annandale to the defendant. The plaintiff’s
version of the
introduction that occurred on 10 January 2005 is therefore
undisputed. As the trial progressed, and particularly
at the stage of
argument, the defence narrowed to the pertinent question of whether
Daubern’s conduct over the entire period
of her involvement
made her the operative cause of the sale. Mention should be made of
the fact that Daubern prior to the written
mandate of 15 November
2004 had also marketed the property in terms of earlier mandates.
11. The only witness called on behalf
of the defendant, Mrs Swart, did not dispute that the meetings of 10
January 2005 between
Daubern and the Annandales actually took place.
(The defendant has Alzheimer’s disease and was unable to
testify). Under
cross-examination it was put to Mrs Swart that she
had good reason to believe that Daubern was in fact involved in
introducing
Annandale and that Annandale only became aware of the
property through the efforts of Daubern. To this Mrs Swart replied:
“
Ek glo hy het die
grond bekom deur Nelie Eiendomme (Daubern), maar hulle het
onderhandelinge gehad met my buurvrou, maar daar was
nooit
onderhandelings, laat Neli Daubern betrokke was by my grond om as ‘n
agent op te tree nie.”
When then asked if she could dispute
the fact that a meeting took place between Daubern and Annandale at
his daughter’s home
on 10 January 2005 at which Daubern handed
over relevant documentation, she replied:
“
Ek weet niks van
hulle verhouding af nie.”
12. Around about the same time that
Daubern engaged with the Annandales she introduced other potential
purchasers to the defendant.
The first of importance was Tosha
Trading CC (“Tosha”). There is a dispute of fact between
the parties about when
Daubern placed a written offer from Tosha
before the defendant. Daubern’s version is that she gave it to
the defendant on
10 December 2004 but the defendant had reservations
and that eventually a second written offer was made on 19 January
2005. This
offer in the amount of R6,5 million was accepted by the
defendant on 19 January 2005. The offer was conditional in that it
would
lapse on 9 February 2005 should Tosha not acquire the necessary
funds to finance the purchase price. Despite the existence of this
offer, Daubern and the defendant continued negotiations with another
potential buyer, Mr Werner Havenga, to whom an option was
ultimately
granted to purchase the land for R6,8 million, which option had to be
exercised by 12h00 on 31 January 2005. As will
be seen presently,
this option was extended by the defendant without any involvement of
Daubern.
13. On 21 January 2005 the defendant
purported to cancel the written mandate with the plaintiff. The
letter of cancellation, Exhibit
A5, is written by Mrs Swart in her
handwriting. The grounds given for cancellation were that Daubern
had allegedly made false
promises about a buyer known as ‘Eddie”,
that she had told “oneerlike leuens”; that she made
defamatory
remarks about the defendant; and that she engaged in
unethical transactions. Daubern denied these allegations against
her. During
her testimony in chief Mrs Swart justified her actions
on the ground that Daubern was playing potential buyers (Tosha and
Havenga)
off against each other, which resulted in their losing trust
in her.
14. This latter reason strikes me as
unconvincing. Havenga was obviously interested in the land of the
defendant’s neighbour
(de Lange) and that of the defendant.
Daubern was marketing both. On 13 January 2005, Daubern granted
Havenga an option in respect
of the defendant’s land in the
following terms:
“
Die
plot van Mnr Willem Daniel Swart….van minstens 8.3 ha,
Gedeelte 85 van plaas Hartebeeshoek 303jr word daar ‘n eerste
opsie aan my WE Havenga …. gegee vir R6500 000 wat betaalbaar
is deur 10% deposit ….. na aanvaarding en ondertekening,
die
verskil in sekuritiete binne 60 dae van ondertekening. Die enigste
opskortende voorwaarde is verkryging van finansiering binne
60 dae.
Die opsie verstryk met ondertekening van koopkontrak voor 15:00
Donderdag 20 Januarie 2005. Die opsie moet asb. bevestig
word deur
ondertekening van hetsy die eienaars of die alleen mandaat agent van
Daubern eiendomme as gevolmagtigde verteenwoordiger….”
The option was signed by Havenga and
Daubern (ExhA 94)
15. Mrs Swart claimed that Daubern had
no authority to grant the option. Yet, on 20 January 2005, the
defendant signed a document
(Exhibit A4) recording that the option
had been accepted and arranging a meeting with Havenga to take place
on 24 January 2005
at the office of the defendant’s attorney,
Mr Johan Bornman. At that meeting a draft contract (Exh A66) was
drawn up providing
inter
alia
for 3,5% commission
payable to the plaintiff (clause 5), as well as a further option (Exh
A71) basically extending the option to
31 January 2005 signed by the
defendant and witnessed by Mrs Swart. As it ultimately transpired,
the sale with Havenga did not
materialise. The offer in Exh A66 was
more advantageous than the Tosha offer in that it was for R6,8
million. But what is most
relevant is that the defendant and his
wife were active in soliciting this offer despite the existence of
the Tosha contract.
Hence, the claim by Mrs Swart that Daubern was
acting unethically by playing purchasers off against each other seems
somewhat hollow.
She made this complaint to the Estate Agents Board
on 5 February 2005 after the Havenga deal fell through in a letter
(Exh A6-8)
to the Board justifying the termination of Daubern’s
mandate. Considering that she and her husband were themselves
actively
engaged on 20 and 24 January 2005 in extending the option,
despite having signed the Tosha offer on 19 January 2005, the claim
of unethical dealing by Daubern is unconvincing and hardly stands as
a basis for terminating the mandate. The Swarts themselves
were
quite evidently engaged in playing Havenga and Tosha off against each
other.
16. Whatever the true reason for the
purported termination of the mandate, and whether or not the conduct
of Mrs Swart constituted
a repudiation, loses relevance by virtue of
the fact that the mandate would in any event have expired through the
effluxion of
time on 30 April 2005, and neither the Tosha nor the
Havenga offers coming to fruition.
17. One fact is certain though, the
relationship between Daubern and the Swarts had soured significantly
and from that time, at
least until mid May 2005, Daubern desisted in
actively marketing the property. The defendant made something of
this in cross-examination.
Despite the sales with Havenga and Tosha
having fallen through, and despite Annandale repeatedly contacting
Daubern during January,
it seems Daubern did little to bring a deal
between Annandale and the defendant to fruition between late January
and mid May 2005.
The Tosha contract however only fell through at
the end of March. Daubern testified that she phoned Bornman, the
lawyer of the
defendant, after the Tosha deal failed but was not
prepared to speak to Mrs Swart, presumably because of the bad blood
between
them. In April, Daubern went on leave with her husband and
was ill. However, in April she began marketing the adjacent
property,
belonging to De Lange, with Annandale. During their
discussions it became apparent that Annandale was interested in both
properties.
18. On 19 May 2005, Daubern had an
appointment with Annandale at the home of De Lange. While the three
of them were in discussion,
De Lange mentioned that Mrs Swart had
mentioned to her that they were struggling to sell their land.
Daubern decided then and
there to phone Bornman and asked him to
obtain permission from the defendant for her to show Annandale the
land. She specifically
requested Bornman to obtain permission for
her to “market” the land. Bornman phoned her back within
five minutes and
stated that he had spoken to the defendant
personally who had instructed him to grant permission to Daubern to
sell the land, and
had added that as far as he (the defendant) was
concerned any agent could market the land so long as he got a
favourable offer.
19. Immediately after the telephone
conversation with Bornman, Daubern, Annandale, and his wife Trysa,
got in Annandale’s
vehicle and drove to the defendant’s
land where Daubern pointed it out to him.
20. The plaintiff called Bornman as a
witness to corroborate Daubern’s version. He confirmed that
Daubern phoned him on 19
May 2005 (which date he knew on account of
correspondence at the time confirming it). He testified that Daubern
informed him during
the telephone conversation that she was in the
company of a person interested in the land of both De Lange and the
defendant.
She explained that she and the Swarts were not on a good
footing and requested his intervention to determine whether the
defendant
would allow her to introduce her client to the land.
Bornman explained to Daubern that he no longer represented the
defendant
but that he was willing to do as she asked. Bornman then
phoned the defendant and spoke to him personally. The defendant
indicated
that he had no problem, and as far as he was concerned
anyone could market the property. This attitude is consistent with
Daubern’s
version that the problem in the relationship was with
Mrs Swart, not the defendant. Bornman raised the question of gaining
access
to the land and the defendant explained that there were
tenants in the house on the property and the gate should be open.
Bornman
then conveyed this to Daubern.
21. The only challenge made to this
testimony by the defendant was the assertion put in cross-examination
to Bornman and repeated
by Mrs Swart in her testimony that it was
unlikely that the defendant would have answered the telephone
personally on account of
his being deaf. Were I to accept such
assertion to be true, in the absence of any testimony from the
defendant himself or any
corroborating medical evidence, I would in
effect hold that Bornman, a practising attorney and officer of the
court, had deliberately
misled the court by blatantly lying to it.
There is no basis whatsoever for such a finding. Besides the fact
that Bornman has
no interest in the matter, he was plainly a credible
and impressive witness who was mindful of his duty to the court and
his responsibilities.
There is no reason at all to question his
credibility or reliability and not a smidgeon of doubt about the
truthfulness of his
evidence.
22. After the events of 19 May 2005,
Daubern did certain follow up work in regard to the property. In
particular, she did an investigation
and analysis of comparative
prices for similar land in the area and conveyed that information to
him in writing - Exhibit A9.
Her undisputed evidence is that there
was ongoing correspondence between them during June and July 2005
regarding both the land
of De Lange and the defendant.
23. On 10 June 2005 the defendant
granted an option in respect of the land to Citadin. The stipulated
price was R7,5 million.
On 29 July 2005 the defendant accepted an
offer from Exact Time Developments (Pty) Ltd with a purchase price of
R8,6 million.
The agreement provided for commission payable to Seeff
at 7,5% plus VAT, being R735 300. The defendant would thus receive
R7 864
700. The next day on 30 July 2005 the defendant accepted an
offer for R8 million from Marble Gold, the company represented by
Annandale.
In terms of clause 15 of the final agreement signed on 9
August 2005 it was provided that there was no agent’s
commission
payable by the seller. The defendant cancelled the
agreement with Exact Time Developments (Pty) Ltd on 1 August 2005.
Clause
13.5 of the agreement with Marble Gold reads:
“
The Purchaser
further indemnifies the Seller against all and any commission and
other claims payable to Seeff/any other party, specifically
Exact
Time Developments (Pty) Ltd/other Purchaser which indemnification
will be effected on receipt of written advice from the
transferring
attorneys.”
24. The handwritten letter by Mrs
Swart cancelling the contract with Exact Time Developments (Exhibit
F17) asserts a right to a
cooling off period, which in law would not
apply to a transaction of this order. The evidence of Mrs Swart that
the contract was
cancelled because “dinge skeef geloop het”,
is frankly unconvincing. I accept rather the plaintiff’s
submission
that the contract was cancelled because she was snatching
at the more advantageous bargain with Marble Gold which she believed
attracted no liability for commission. As with the deals in January
- February, Mrs Swart was positioning to avoid any commission
payment.
25. It is necessary to examine the
background leading up to the offer by Marble Gold in a little more
detail. Annandale’s
interest in developing the properties had
prior to the offer to the Swarts culminated in Marble Gold offering
to purchase De Lange’s
property as well as another adjacent
property belonging to a certain Kriel. The development of this land
depended on the defendant
granting a right of way over his property.
Daubern received commission in the amount of R200 000 in respect of
the sale of De
Lange’s property.
26. At some stage during July 2005,
Daubern sent an sms to the Swarts informing them that she had
Annandale as an interested purchaser.
She was rebuffed by Mrs Swart
who did not want to work through her or to give her a mandate. On 14
July 2005 Annandale addressed
a letter to Daubern which reads as
follows:
“
Beste
Nelie
HARTEBEESTHOEK 303 JR
Ek verwys na ons
telefoniese gesprek Woensdagaand 13 Julie 2005, insake die SMS
boodskap wat u op die betrokke dag aan die eienaar
van gedeelte 85
Hartebeesthoek 303 JR gestuur het om navraag te doen of hulle sou
belangstel om hulle eiendom te verkoop via (volgens
u) “Mnr
Johan Bornman) (Prokureur).
Ter voorkoming van enige
verwarring omtrent die voorname bestig ek hiermee dat ek of enige van
die maatskappye waarvan ek aandele
hou, nie belangstel om gemelde
eiendom aan te koop nie, en ook nie in u as makelaar ten opsigte van
die betrokke eiendom nie.”
27. On the same day Annandale wrote a
letter to the Swarts which read:
“
Geagte
meneer en mevrou Swart
Ek
bevestig dat mev W de Lange se eiendom deur Marble Gold 199 (Pty) Ltd
aangekoop is.
Provinsie
vereis die goedkeuring van die drie eienaars in die Amandasig
uitbreiding 4 dorpsgebied sodat elke ontwikkelaar/eienaar
die
bestaande erfplanne op sy eiendom kan wysig.
Dit affekteer geensins
die individuele eienaar se kontraktuele verbintenis en/of verkope aan
‘n ontwikkelaar nie.
U
gee alleenlik toestemming dat mev W de Lange se eiendom as ‘n
fase in die Amandasig 4 dorpsgebied ontwikkel kan word. U
eiendom
kan dan ook as sulks onafhanklik ontwikkel word en so ook mnr Kriel
se eiendom.
Die
toegang van Britsweg bly nog steeds ‘n voorvereiste van
Provinsie.
Bogemelde
toestemming strek tot voordeel van al die eienaars/ontwikkelaars en u
samewerking sal waardeer word.
‘
n
Volmag aan ons om met die owerhede en betrokke persone te onderhandel
word aangeheg. U word gevrywaar van enige kostes en/of
kontraktuele
verpligtinge waartoe u nie toegestem nie.”
28. Daubern conceded that Annandale
had told her that he did not have any interest in purchasing the land
of the defendant. She
was however also aware that it was a planning
requirement that both De Lange and Kriel properties required an
access route from
Brits Road. This required a servitude to be
registered over the defendant’s property. She conceded also
therefore that
Annandale had an ongoing interest in gaining the
defendant’s consent to such a servitude.
29. Mrs Swart testified that initially
she and the defendant did not want to co-operate with Marble Gold
because of Daubern’s
involvement. But they also understood
that Marble Gold needed their permission for the development and
later their agreement to
a servitude. She maintained that they were
reluctant to grant the servitude and this led to negotiations
resulting in the sale
because Marble Gold did not want to lose the
deal with De Lange and Kriel. In other words, Mrs Swart took the
position that the
sale with the defendant was concluded because it
was the only way Marble Gold could acquire access to the proposed
development.
The entire township development scheme depended on the
right of access.
30. The difficulty in the way of
accepting this version is that it conflicts with certain averments
made by the defendant in the
version he put forward under oath in his
affidavit opposing summary judgment. In paragraph 72 of the
affidavit, he stated as follows:
“
Ek
kan net meld dat Meneer Annandale gedurende Julie 2005 begin
onderhandel het met Mnre Citadin ontwikkelaars omtrent toegang oor
my
grond na Mevrou de Lange se grond. Mnre Citadin se opsie om die
eiendom te koop het verval en Meneer Annandale het my toe genader
namens Marble Gold om ‘n toegang te beding oor my grond na
Mevrou de Lange se grond. Mnre Marble Gold het Mevrou de Lange
se
grond gekoop met die doel om ‘n dorp daarop te stig. Een van
die voorwaardes vir dorpstigting was dat ‘n servituut
oor my
grond geregistreer word ten gunste van die de Lange grond.
Ek
het toestemming verleen vir die serwituut
.
Tydens die onderhandelinge het Meneer Annandale my gevra of my grond
in die mark is. Ek het bevestigend geantwoord en gemeld
dat die prys
agt miljoen is. Mnre Marble Gold het ‘n aanbod gemaak van agt
miljoen wat ek op 8 Augustus 2005 aanvaar het.
Die aanbod is gemaak
onderhewig aan kansellasie van bestaande opsie.” (my emphasis)
31. The account in the summary
judgment affidavit differs markedly from that proffered by Mrs Swart
in her evidence. According to
the defendant he was prepared to agree
to the servitude. The sale was therefore not forced as a consequence
of his refusal to
grant the servitude and accordingly there was no
impediment to the establishment of the township. The initiative to
purchase the
property came from Annandale and the incentive to accept
his offer came from the fact that he was prepared to offer more.
These
averments stand in the way of an unqualified finding that the
refusal of the servitude was the immediate and overriding cause of
the sale. Under cross-examination Mrs Swart could offer no
convincing explanation for this inconsistency other than to say the
affidavit was wrong. The obvious way to clear up the ambiguity would
have been to call the defendant and/or Annandale, and if
need be to
subpoena the latter if he proved reluctant. We were told that the
defendant is bedridden. There is no medical evidence
to support that.
No acceptable reason has been advanced for not calling Annandale. I
will return to the significance of this
failure presently.
32. The question then is whether the
plaintiff has established on the evidence that Daubern contributed to
the conclusion of the
sale between Marble Gold and the defendant to
an extent sufficient to entitle him to claim commission. Is what
Daubern did of
sufficient magnitude to be regarded as the effective
cause of the sale? This requires the consideration and weighing of
the various
factors involved and the question will not necessarily be
answered by seeking to determine if the agent’s conduct was a
conditio sine qua non
or
the factor of greatest magnitude. All the contributing factors have
to be considered.
33. With regard to the question of
whether Daubern was mandated when she introduced Annandale, it is
common cause that she did indeed
have a mandate on 10 January 2005
when she brought the property to Annandale’s attention and
furnished him with documents.
As I have indicated I accept
unreservedly that the meetings of 10 January 2005 occurred as
testified by Daubern. The defendant’s
failure to call
Annandale, his wife or daughter leads to the inference that the
meetings did indeed occur and that Annandale was
furnished with the
relevant documentation by Daubern. In any event, by the time we
reached argument, these matters were no longer
contested. That the
mandate subsequently terminated, be it by cancellation, repudiation
or effluxion of time, is not a decisive
factor. In
Le
Grange v Metter
1925 OPD 76
at 80 it was held that an agent often will be entitled to commission
even though his or her mandate has terminated. De Villiers
JP held
that the agent may be entitled to commission:
“
notwithstanding
that the sale may only go through long after his active efforts have
ceased, and notwithstanding that the sale may
eventually be concluded
directly between the parties without his participation, and
notwithstanding that the sale may go through
on different terms and
conditions from those on which the broker or agent was employed to
sell.”
34. Likewise, in the absence of any
contrary evidence from the defendant and Annandale, and in the light
of the cogent and credible
evidence of Bornman, I am satisfied beyond
a balance of probabilities that the defendant gave Daubern an
open-ended mandate to
market the property on 19 May 2005, in
consequence of which she physically introduced Annandale to the land.
35. Counsel for the defendant has
sought to make something of the fact that the property was only sold
to Marble Gold three months
after Daubern physically showed Annandale
the property. The passage of time is not a decisive factor
intervening to diminish the
causative influence of an introduction.
Normally an agent acting under a mandate would be expected to find a
purchaser and negotiate
a sale to conclusion. Where the mandate is
terminated or lacking in specificity (as in this case) the
introduction of an unacquainted
purchaser to the land and the
possibility of a sale may well suffice. Daubern’s actions on
19 May 2005 involved showing
Annandale the land and effectively
bringing together two unacquainted parties, thereby constituting the
possibility of a prospective
sale. Her conduct was sufficient in the
circumstances even though the sale was eventually concluded directly
between the parties
without her participation, and particularly
seeing that her further participation was impeded by the principal
(or in this case
his wife) -
Doyle
v Gibbon
1919 TPD 220
; and
Van Heerden v Retief
1981
(1) SA 945
(A).
36. For the reasons already set out,
I am satisfied that Daubern introduced Annandale to the property in
the sense of describing
its situation and qualities and then showing
him over the property in a way focusing his mind to the fact that the
property was
available on the market. Counsel for the defendant
conceded as much during argument. The line of argument however
shifted subtly
from the sub-text of the plea to one asserting that
the passage of time had resulted in more compelling causative factors
effectuating
the sale.
37. In
Aida
Real Estate Ltd v Lipschitz
1971
(3) SA 871
(W) at 873-874 Marais J enunciated the guiding principle:
“
A
proviso has been added to the effect that the introduction of the
able and willing buyer must have been the effective cause or
the
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 inquiry
- 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 or was the introduction still overridingly
operative? Only in
the latter instance is commission said to have been earned. This
enquiry …. requires … a common
sense approach …
38. In
Basil
Elk Estates (Pty) Ltd v Curzon
1990
(2) SA 1
(T) at 5 the principle was elaborated upon as follows:
“
Emphasis
was, however, placed on the factor to which I shall now turn, viz
that of the importance of the initial introduction, and
whether it
overshadowed other supervening events ……
As
pointed out above, the onus was on the appellant to satisfy the Court
that on a balance of probabilities its activities predominated
as a
causative factor. From that it follows that where there are
competitive causative factors the appellant must fail unless
it can
firmly be stated that is endeavours override other factors of
importance.”
39. The case for the plaintiff is that
the introductions that took place on 10 January 2005 and 19 May 2005
overrode all other factors
of importance with the result that they
were the decisive factors which were overridingly operative when the
sale was eventually
concluded.
40. The defendant, as already pointed
out, says other factors intervened breaking the causal chain, such as
the passage of time,
the falling through of three other prospective
sales in which the plaintiff was not involved and the negotiations
regarding the
servitude. The passage of time, as I have said, is not
of itself decisive. It is not unusual for purchasers not to act
immediately
on an introduction, or for competing negotiations to
place the introduction in temporary abeyance. Such alone will not
disqualify
the introduction from being the effective cause -
Barnard
and Parry Ltd v Strydom
1946
AD 931
at 936. Moreover, the prospective sales to Citadin and Exact
Time Developments (Pty) Ltd fell through because Marble Gold came
with a better offer.
41. Counsel’s conjecture that
the visit to the property on 19 May 2005 by Annandale was of little
significance, is doubtful,
if not speculative, in view of Annandale
not testifying. The importance of the visit has to be understood in
the context of Daubern
having introduced the property to him by
giving him the documents a few months earlier and her exercising the
art of persuasion
to further stimulate his interest. Her evidence
was that he wanted to see it; so much so that he drove her to it in
his own vehicle.
42. It is difficult to draw any
conclusion from Annandale’s letter of 14 July 2005 that he was
not interested in purchasing
the property without his having
testified explaining his stance and why a few weeks later he changed
his mind. Annandale was aware
of the troubled and hostile
relationship between Daubern and Mrs Swart, and he may have sought to
put distance between himself
and Daubern so as not to jeopardise the
deal. Without his testimony we do not know if he actually would have
preferred to have
acquired a limited right of way as Mrs Swart
testified, or that after further assessing the property during
negotiations and seeing
potential additional benefits opted to make
an offer along the lines described by the defendant in the summary
judgment affidavit.
In cross-examination Mrs Swart conceded that she
was with her husband when he attested to the affidavit. She drove him
to the
police station to have it commissioned because he is unable to
drive. Considering the active interest and the role she played,
it
is likely that she would have perused the affidavit before he signed
it. Such casts considerable doubt upon her credibility
and her
uncorroborated assertion that the decisive causative factor in
concluding the sale was the defendant’s refusal to
grant a
servitude over the property. Added to that, it is permissible to
draw an adverse inference from the defendant’s
failure to call
Annandale to clarify the circumstances under which the offer was
made.
43. For those reasons then, I am
persuaded that the first introduction in January 2005 and the showing
of the property to Annandale
in May 2005 were together the decisive
causative factors that remained operative until the conclusion of the
sale. None of the
intervening negotiations or other events operated
to diminish its ultimate impact. While the service rendered by
Daubern did not
extend to her participation in directly concluding
the contract, she introduced the purchaser to the land, did some
follow up work
and through her intervention brought the parties
together. As such the service rendered ended up being less than that
usually
offered by a mandated agent. Nevertheless, the limited
service she did render remained causally significant entitling her to
commission,
in respect of which no other agent would have a competing
claim.
44. The commission sought is R560 000
being the 7% stipulated in the original written mandate, which
allowed for the amount to be
reduced by mutual agreement. It is
reasonable to imply a similar term in the renewed mandate conferred
by the defendant orally
on 19 May 2005. Such is also the customary
industry norm. The fact that the plaintiff may have accepted 4% in
other cases provides
no justification for reducing the agreed rate in
this instance. The contract provides for a reduction only by mutual
agreement
and there is no such agreement.
45. Costs normally should follow the
result. The defendant sought a postponement on 9 February 2009 for
the purpose of obtaining
an expert report which in the end did not
advance his case. He is thus also liable for the costs occasioned by
that postponement.
46. In the result the following orders
are issued:
1. The defendant is ordered to pay the
plaintiff the sum of R560 000 together with interest at a rate of
15,5%
a tempore morae
.
2. The defendant is ordered to pay the
costs of the action, including the costs occasioned by the
postponement of the proceedings
on 9 February 2009.
JR MURPHY
JUDGE
OF THE HIGH COURT
Date Heard: 03/12/08,
09/02/09-13/02/09, 25/03/09, 07/05/09
For
the Applicant: Adv D Prinsloo, Pretoria
Instructed
By:Borman & Mostert Inc. c/o Venter Dupper & Smalman,
Pretoria
For
the Respondent: Adv JAL Pretorius, Pretoria
Instructed
By: Neels Engelbrecht & Partners c/o Du Plessis Mundt, Pretoria