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[2007] ZAFSHC 66
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Oosthuysen and Another v Oosthuysen and Another (1386/2007) [2007] ZAFSHC 66 (13 September 2007)
IN
THE HIGH COURT OF SOUTH AFRICA
(FREE
STATE PROVINCIAL DIVISION)
Case
No. : 1386/2007
In
the matter between:
OOSTHUYSEN
BEATRIX
First
Applicant
OOSTHUYSEN
YOLANDE
Second
Applicant
versus
OOSTHUYSEN
PETRUS JOHANNES
First
Respondent
ROAD
ACCIDENT FUND
Second
Respondent
_____________________________________________________
CORAM:
H.M.
MUSI J
_____________________________________________________
HEARD
ON:
30
AUGUST 2007
_____________________________________________________
DELIVERED
ON:
13
SEPTEMBER 2007
_____________________________________________________
Summary:
Application
for transfer of action from one court to
another
in terms of section 3 of the Interim
Rationalisation
of Jurisdiction of High Courts Act, No.
41
of 2001 – respondent pleading the existence of a
contract
prohibiting transfer – whether binding
agreement
concluded and effect thereof on the
application.
_____________________________________________________
JUDGMENT
_____________________________________________________
H.M.
MUSI, J
[1]
This is an application based on section 3 of
the Interim Rationalisation of
Jurisdiction
of High Courts Act, No. 41 of 2001, for transfer of the action
instituted
by the applicants against the first respondent in this Court to the
Transvaal
Provincial Division of the High Court. The background to the
matter
is set out hereunder.
[2]
On 12 April 2002 the second applicant was a
passenger in a motor vehicle
driven
by the first respondent when the first respondent’s motor
vehicle
became
involved in a collision with another motor vehicle on the outskirts
of
Bloemfontein. The second applicant sustained severe injuries in the
accident
as a result of which she became a paraplegic. She and her
mother,
the first applicant, who had apparently expended money on the
second
applicant’s medical treatment, instituted action in the TPD
against
the
Road Accident Fund, the second respondent, for damages on the
basis
of the alleged negligence of the driver of the motor vehicle that
collided
with the first respondent’s motor vehicle and that of the
driver of an
unidentified
motor vehicle that allegedly caused the first respondent’s
motor
vehicle to collide with the other motor vehicle. No negligence on the
part
of the first respondent was averred and hence the first respondent
was
not joined in that action.
[3]
Subsequently and apparently on advice of
their attorneys, the applicants
instituted
action in this Court against the first respondent for damages on
the
basis that there had been negligence on the part of the first
respondent
that
causally contributed to the accident. The first respondent is
defending
the
action and has filed a plea, attributing the accident solely to the
negligence
of the driver of the unidentified motor vehicle.
[4]
The applicants now seek to have the action
instituted in this Court
transferred
to the TPD to be consolidated with the action instituted there. I
shall
henceforth refer to the first respondent simply as the respondent and
to
the second respondent as the RAF.
[5]
A number of considerations have been given
for the need to transfer and
consolidate
the actions. It is contended
inter
alia
that
the convenience of
the
parties demands that this be done, given that the applicants are
resident
in Pretoria, the RAF has its principal place of business in Pretoria,
the
attorneys of both the applicants and the RAF are all in Pretoria and
that
the
respondent is in fact represented by his insurer’s attorneys,
who are
based
in Johannesburg. It is also pointed out that there is a serious risk
of
duplication
where the same witnesses, who will testify in the TPD case,
may
be required to again testify in this Court and that the costs would
escalate.
In argument, counsel for the applicants cited authority on the
principles
that would guide the court in considering this type of application.
See
inter
alia
MPOTSHA
v ROAD ACCIDENT FUND AND ANOTHER
2000
(4) SA 696
(C);
NONGOVU
NO v ROAD ACCIDENT
FUND
2007
(1)
SA
59 (TPD).
[6]
In resisting the application the respondent
denies that considerations of
convenience
favour transfer of the action. He says that the nature of the
scene
of the accident, which he has inspected, is such that the court
hearing
the matter would need to conduct an inspection
in
loco
and
that,
coupled
with the fact that he and the driver of the vehicle with which he
collided
are all in Bloemfontein, militates against transfer. However, the
main
ground upon which the respondent opposes the application is that
there
is an agreement concluded by the applicants and himself through
their
attorneys to the effect that the action in this Court would not be
proceeded
with “until and unless the action against the second respondent
fails
and that the action against the first respondent would be withdrawn
should
the action against the second respondent succeed in its entirety”.
[7]
During argument I expressed the view that
any attorney with experience in
third
party litigation would know that you cannot risk excluding a party
like
the
respondent in an action based on the facts of this case and I
wondered
why
was the respondent not joined in the TPD case. The answer to this
question
is to be found in the genesis of the agreement pleaded by the
respondent.
In his answering affidavit the respondent produced a copy of a
letter
written by the attorneys acting on behalf of the applicants to his
attorney,
who deposed to the respondent’s answering affidavit. The
letter
is dated 10 December 2004 and is marked annexure “EGL1”.
It
explains
why was the respondent not joined in the case against the RAF.
The
reason therefor is that the applicants’ attorneys were
confident that
they
would prove that the accident was due to the negligence of the driver
of
the unidentified motor vehicle in respect of which the second
applicant’s
claim
is unlimited. It is acknowledged in the letter that if it should turn
out
that
the accident was due to the negligence of the respondent, then the
RAF
would be liable only for R25 000,00, in which event the balance of
the
Claim
would have to be recovered from the respondent personally and
particulars
of his short term insurance were requested for the purpose. The
letter
makes it clear that summons would be issued against the respondent
as
a precautionary measure and that it will be served purely in order to
forestall
prescription. The proposal is then mooted that as soon as the
notice
of intention to defend is served, further steps in the action could
be
kept
in abeyance to await the outcome of the case in the TPD and that
should
the latter case succeed on an unlimited claim basis, then the action
against
the respondent would be withdrawn.
[8]
Subsequent to the letter of 10 December 2004
a formal proposal was
communicated
to the respondent’s attorneys proposing that the matter in
this
Court be kept in abeyance on the basis set out above. It is contained
in
a letter dated 18 April 2005 addressed to the respondent’s
attorneys by
the
Bloemfontein correspondents of the attorneys for the applicants. It
appears
in the papers as annexure “Y03”. The attorneys for the
respondent
responded by letter dated 10 May 2005 which is marked
annexure
“EGL2” in the following terms:
“
Ons
verwys na bostaande en wens u
mee
te deel dat dit ons
instruksies
is dat ingestem word tot die voorgestelde reëling.”
They
thereby accepted the proposal.
[9]
In argument I posed the question whether, if
these correspondences
evidence
a binding agreement, this Court could ignore such agreement
and
grant the application if it is of the view that the interests of
justice
would
be better served by consolidating the actions in the TPD. Counsel
for
the applicants was candid that such course is not open to this Court.
That
means that if it is found that there was such a binding agreement
that
would
be the end of the application. On the other hand, the applicants,
whilst
agreeing that they made the relevant proposal, which would
constitute
an offer, aver that they never received annexure “EGL2”,
which
would
constitute an acceptance. They, therefore, contend that no
agreement
came into being. Even then they contend that even if an
agreement
had been reached, it is not a binding agreement.
[10]
In my view, the balance of convenience favours transfer
of the action
against
the respondent to the TPD. The real issues to be determined are:
(a)
whether
the offer contained in annexure “Y03” was accepted in the
sense
that the acceptance contained in annexure “EGL2” did
reach the
applicants’
attorneys; and
(b)
whether
a binding agreement came into being or whether this was
merely
a gentleman’s agreement between attorneys, as counsel for the
applicants
contended.
[11]
The first issue can be readily determined. These are
motion proceedings
and
where there are disputes of fact the rule stated in
PLASCON-EVANS
PAINTS
LTD v VAN
RIEBEECK
PAINTS (PTY) LTD
[1984] ZASCA 51
;
1984
(3) SA 623
(A)
applies.
The question of whether annexure “EGL2” was received by
the
attorneys
for the applicants stands to be resolved on the basis of the
averments
contained in the respondent’s answering affidavit together with
the
averments made in the founding affidavit of the applicants which the
respondent
admits. The version of the respondent is that the respective
firms
of attorneys in Bloemfontein use Docex to exchange correspondence
and
that the letter in question was properly delivered to Docex for
forwarding
to the attorneys for the applicants. In this regard the respondent
has
filed affidavits detailing all the steps normally taken in the
process and
verifying
that the letter was duly delivered to Docex on 10 May 2005. It is
trite
that where an offer is communicated through the post a contract
comes
into being upon posting of the letter of acceptance. See
CAPE
EXPLOSIVES
WORKS
LTD
v SOUTH AFRICAN OIL AND FAT
INDUSTRIES
LTD
(1)
1921
(CPD) 244;
KERGEULEN
SEALING AND
WHALING
CO LTD v COMMISSIONER FOR INLAND
REVENUE
1939
(AD)
487.
In
casu
Docex
had been appointed for exchange of
correspondences
between the Bloemfontein attorneys of the parties herein
and
the contract would have come into existence upon delivery of the
letter
of
acceptance to Docex.
[12]
Besides, the inference can be drawn that the letter was
indeed received by
the
attorneys for the applicants on the basis of the following. The
letter was
posted
on 10 May 2005 and if it had not been received, one would have
expected
the applicants’ attorneys to have written a further letter or
letters
seeking
a response to their proposals. In the event, no enquiry whatsoever
was
made and a period of some four months elapsed before the next letter
dated
9 September 2005 followed wherein the applicants’ attorneys
suddenly
changed stance and soughs to withdraw the offer, admittedly on
advice
of their senior counsel. Is it by chance that the applicants kept the
matter
in abeyance for so long? In all probability the matter was kept in
abeyance
precisely because the letter of acceptance had been received.
As
counsel for the respondent submitted, the version of the applicants
does
not exclude the possibility that the letter was received but was
somehow
mislaid.
[13]
The cardinal question is whether the agreement reached
is a binding
contract.
The applicants contend that it could not have been the intention
of
the parties to be bound by what was merely an arrangement. Counsel
for
the appellants referred
inter
alia
to
ROBINSON
v RANDFONTEIN
ESTATES
GOLD MINING CO. LTD
1921
(AD) 168 for an example of an
agreement
which was not intended to be legally binding, because of the
absence
of
animus
contrahendi
.
Counsel also contended that this was
merely
a gentleman’s arrangement between attorneys that was not
intended
to be binding on the parties. Counsel also submitted that since it
is
the respondent who is relying on the agreement, he bears the onus of
proving
it. In dealing with the latter point, counsel for the respondent
submitted
that annexures “Y03” and “EGL2” constitute a
complete
memorial
of the terms of the agreement and that therefore the parole
evidence
rule applies. He submitted that there was a clear and
unambiguous
offer which was accepted and that a binding agreement has
been
shown.
[14]
I have given the background to the agreement purely in
order to put the
agreement
in its proper setting. From this it is clear that the proposal
emanates
from two sources. Firstly, the applicants did not want to sue the
respondent
(the second applicant’s brother) and the summons against him
was
issued on the advice of their attorneys as a precautionary measure in
case
the claim against the RAF did not succeed on an unlimited claim
basis.
That explains why it was proposed that the case against the
respondent
should not be proceeded with until the claim against the RAF
was
finalised. Secondly, the applicants’ attorneys were confident
that they
had
a good case against the RAF and believed that the case against the
respondent
would ultimately fall off. The letter containing the proposal is
evidence
of this and contains a clear and unambiguous proposal that
should
the case against the RAF succeed as envisaged
“
...
sal die aksie
onder
saaknommer 773/2005 teruggetrek
word.”
Only
if the case against the
RAF
failed
“
...
sal die aksie onder saaknommer 773/2005 voortgesit word.”
The
letter
incorporates clear terms, which if accepted would leave no doubt as
to
what was agreed upon. It is a firm offer that fits comfortably with
the
description
of an offer given by Levy J in the following terms in
WASMUTH
v
JACOBS
1987
(3) SA 629
(SWA) at 633 E:
“
It
is fundamental to the nature
of
any offer that it should be
certain
and definite in its terms. It must be firm, that is,
made
with
the intention that when it is accepted it will bind the offeror.”
The
instant
matter
is clearly distinguishable from the offers alleged in matters like
ROBINSON
v RANDFONTEIN
ESTATES
GOLD MINING CO. LTD
,
supra
.
[15]
I have already indicated that the offer emanates from
the reluctance of the
applicants
to sue the respondent and it can be inferred from its language
and
background facts that they intended it to be binding and indeed
implemented
it for some time until advised of the risk of sticking to it. In her
replying
affidavit the second applicant concedes as much when she says
“
Nowhere
in my founding affidavit did I suggest that the intention
was
initially
otherwise
than to stay the FS action pending the
outcome
of the TPD action.”
This
was
not a gentleman’s agreement between attorneys.
The
attorneys were merely implementing the mandates of their respective
clients
when they concluded the agreement.
[16]
Counsel for the applicants also argued that for a
contract to be valid and
binding
the parties must intend it to have legal consequences. He
suggested
that the contract would have had no legal consequences since
the
respondent could not be able to recover damages in the event of it
being
breached. The answer to this is that recovery of damages is not the
only
remedy available to the innocent party upon breach of contract. One
of
the remedies is to refuse to accept repudiation and to insist on
holding
the
defaulting party to the contract (specific performance) or he/she can
obtain
an interdict to prevent a breach or threatened breach of the
contract.
See generally R H Christie,
The
Law of
Contract
in South
Africa
,
5
th
Edition
page 330 – 334.
[17]
As to the proof of the contract, I agree with counsel
for the respondent, that
the
annexures “Y03” and “EGL2” constitute a
complete written memorial of
the
terms agreed upon. The language used is plain and unambiguous and
there
can be no doubt as to what the parties intended. Therefore the
integration
rule applies and no further evidence was needed to establish
the
contract.
[18]
I conclude that the agreement concluded by the parties
herein is a binding
contract.
In the premises, the applicants are not entitled to a order sought
and
the application is dismissed with costs.
___________
H.M.
MUSI, J
On
behalf of appellants: Adv. J.F. Mullins S.C.
Instructed
by:
Honey
Attorneys
BLOEMFONTEIN
On
behalf of first respondent: Adv. Nic van der Walt S.C.
Instructed
by:
Roderick
& Lowe Attorneys
BLOEMFONTEIN