About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Limpopo High Court, Polokwane
SAFLII
>>
Databases
>>
South Africa: Limpopo High Court, Polokwane
>>
2024
>>
[2024] ZALMPPHC 1
|
|
Simango v Nkuna (1515/2020) [2024] ZALMPPHC 1 (10 January 2024)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
LIMPOPO
DIVISION, POLOKWANE
Case
Number: 1515/2020
REPORTABLE: NO
OF
INTEREST TO OTHER JUDGES:NO
REVISED:
NO
DATE:
2024-01-09
In
the matter between:
JOE
PHALALA SIMANGO
PLAINTIFF
And
KHAZAMULA
MICHAEL NKUNA
DEFENDANT
Coram:
Kanyane AJ
Heard:
14 November 2023
Delivery:
This
judgment is handed down electronically by circulation to the parties
through their legal representatives' e-mail addresses.
The date for
the hand-down is deemed to be 10 January 2024.
Summary
:
Commercial
law
–
Partnership
agreement
–
Dispute
over
whether partnership agreement exists.
ORDER
The
plaintiff’s claim is dismissed with costs.
JUDGMENT
Kanyane,
AJ Introduction
[1]
The plaintiff alleges that he concluded an
oral partnership agreement with the defendant in relation to the
development of certain
retail property in Limpopo, that the defendant
is in default of his obligations in terms of that agreement, and
claims specific
performance of the alleged agreement, which the
defendant denies.
[2]
At issue in these proceedings is whether
the plaintiff has established the onus that rests upon him to prove
his case on a balance
of probabilities. In my view, he
has not.
[3]
While the parties did not specifically
request me to separate the issues of liability and quantum as
contemplated in Rule 33(4),
the matter had been certified
trial ready on the basis of the parties’
pre-trial agreement that the issue of liability be decided first,
with the quantum
of the plaintiff’s claim standing over for
later determination should this be necessary, and the trial proceeded
on that
basis.
The facts
[4]
The defendant is a well-known developer of
retail developments, especially in Limpopo. He conducts his business
through various
companies in which he holds interests. He testified
that he has been in the retail development industry for 47
years. The plaintiff is a civil servant and
apparent entrepreneur.
[5]
The plaintiff’s claim is founded on a
partnership agreement that he allegedly concluded with the defendant
at the latter’s
residence at Nkuzana, Limpopo, during April
2015.
[6]
According to the plaintiff, the terms of
the partnership agreement were that the plaintiff would seek out
pieces of land which were
feasible for retail developments, would
negotiate purchase terms with the owners of that land, and would then
present the proposed
land to the defendant. Upon approval by the
defendant of the proposed land parcel, the plaintiff would procure
the transfer of
that property to the defendant
or his nominee.
[7]
The plaintiff alleges that, in pursuance of
the aims of the partnership, he procured the transfer of certain land
to a company which
was the defendant’s nominee. It is common
cause that the land is registered in the name of Mosail Trade and
Invest (Pty)
Ltd, and that a shopping centre reported to have been
developed at
a
cost of some R1.5 billion – known as Mphephu Plaza – has
been developed on the property and is operational.
[8]
The plaintiff testified that, during April
2015, he visited the defendant at his home at Nkuzana, at which the
oral agreement was
concluded. The terms of this agreement
were
that
the
plaintiff
would
seek
out
parcels
of
land
suitable
for
retail development and negotiate purchase
terms with the owners of that land on behalf of the partnership. Upon
approval by the
defendant of the proposed acquisition of the land
parcel, the plaintiff would procure the transfer of that property to
the defendant
or
his nominee. Upon transfer of the property, the defendant would pay
the plaintiff 10% of the purchase price of that property
and, once
the envisaged development
was
completed, he would be entitled to a 1% share in the completed
development.
[9]
According to the plaintiff, he explored
several options for a retail development of the kind envisaged, and
he ultimately came upon
a property located along the R523 in the
Siloam area. This property was registered in the name of Malnet
Holdings (Pty) Ltd, a company controlled by
the traditional leader of the area, Hosi Ramovha. He approached the
Hosi with a proposal
to buy the land for purposes of a retail
development that he and the defendant had envisaged. The Hosi was
initially reticent and
indicated that he wanted to develop the land
himself. However, after the plaintiff extolled the virtues of the
vision that he and
the defendant had for their envisaged development
on the land, the Hosi agreed to sell the land to the partnership, and
the land
was ultimately transferred to the defendant’s nominee
company, Mosail on 18 May 2017.
[10]
The plaintiff testified that, after the
registration of the property in Mosail’s
name, he had followed up with the defendant
regarding what to do next and the payment of the 10% of the purchase
price, but the
defendant advised him that he
was still busy. He took the defendant at
his word, but the defendant never performed his end of the bargain.
He has not been paid
the 10% of the purchase price of the property;
neither has the 1% share in the development that he was promised been
realised.
This action is the sequel.
[11]
In his plea and testimony, the defendant
denied that he had concluded any such agreement with the plaintiff.
He testified that the
plaintiff (who was until that
point unknown to him) had contacted him by
telephone in 2015 and requested to meet with him at the defendant’s
residence.
It was not uncommon for people to want to meet with him as
he is well known in the area, so he agreed to the meeting. At that
meeting,
the plaintiff offered to introduce him to the traditional
leader of the area, Hosi Ramovha. He declined the offer, telling the
plaintiff that he had known Hosi Ramovha for many years and that if
Hosi Ramovha wanted to speak to him, they would do so directly.
[12]
The defendant elaborated that, prior to the
plaintiff’s visit, at which the plaintiff proposed to introduce
him to Hosi Ramovha,
the Hosi had sought an audience with him, which
he granted. At that meeting, Hosi Ramovha indicated to the defendant
that he had begun development on the land
that is the subject of this action and
owed
a considerable amount of money to the engineering company that had
undertaken the earthworks, which money the Hosi did not
have. Hosi
Ramovha requested the defendant to advance him funds to pay the
engineering company and the defendant agreed. One of
the defendant’s
companies fronted the funds, which were accounted for against the
defendant’s shareholder loan account
with that company.
[13]
At about that time – the defendant’s
evidence continued – Hosi Ramovha requested the defendant to
partner with
him to realise the development on the property. The
defendant then referred the Hosi to his subject-matter experts within
his organisation to determine the
feasibility of the envisaged project and to draw up the necessary
documents. In 2017, the land
was transferred to Mosail which appears
to be a special purpose vehicle, in which a company associated with
the defendant holds
a two-thirds shareholding, with the balance being
held by Malnet, associated with Hosi Ramovha.
[14]
The defendant’s evidence was not
shaken during cross-examination. For this reason, the plaintiff
brought an application to
reopen his case so that he could testify
regarding his alleged communications with the defendant after the
meeting at which he
alleges that the agreement was concluded. For the
reasons I gave at the time, I concluded that it was not in the
interests of justice
to grant the application and dismissed it.
Evaluation
[15]
A party claiming specific performance must
establish the terms of the contract sought to be enforced and breach
(or threatened breach)
of that agreement by the defendant.
[16]
In my view, the plaintiff fails at the
first hurdle, i.e., establishing the conclusion and terms of the
agreement contended for.
Both parties were agreed that I have two
mutually destructive versions before me, and that it would eventually
come down to the
probabilities and, possibly, credibility findings.
[17]
The proper approach in a case like this is
that set out by Eksteen AJP in National Employers’ General
Insurance Co Ltd v Jagers
1984 (4) SA 437
(E) at 440E–441A and
endorsed by the Supreme Court of Appeal in Baring Eiendomme Bpk v
Roux
[2001] 1 All SA 399
(SCA) at para 6:
“
...
where there are two mutually destructive stories, [the plaintiff] can
only succeed
if
he
satisfies
the
Court
on
a
preponderance
of probabilities
that his version is true and
accurate and therefore acceptable, and that the other version
advanced by the defendant is therefore
false or mistaken and falls to
be rejected. In deciding whether that evidence is true or not the
Court will weigh up and test the
plaintiff’s allegations
against the general probabilities. The estimate of the credibility of
a witness will therefore be
inextricably bound up with a
consideration of the probabilities of the case and, if the balance of
probabilities favours the plaintiff,
then the Court will accept his
version as
being
probably true. If however the probabilities are evenly balanced in
the sense that they do not favour the plaintiff’s
case any more
than they do the defendant’s, the plaintiff can only succeed if
the Court nevertheless believes him and is
satisfied that his
evidence is true and that the defendant’s version is false.
”
[18]
After a careful consideration of all the
evidence, I hold the view that the plaintiff has not discharged the
onus to prove his case
on a balance of probabilities.
[19]
The plaintiff could not produce a single
document to support his claim. The defendant testified without
challenge that, in his 47
years in the field, he had never concluded
a business arrangement of the sort claimed by the plaintiff orally
and had always insisted
on written agreements. This is consonant with
his other unchallenged evidence that he ensured that the transaction
between him
and Hosi Ramovha was properly structured and documented.
The belated and unsustainable application to reopen the plaintiff’s
case so that he could testify about his alleged communications with
the defendant after the alleged conclusion of the agreement
made it
plain that the plaintiff himself realised that, in view of the
defendant’s evidence, his evidence was insufficient
to justify
judgment in his favour.
[20]
Neither could the plaintiff produce any
evidence of written communications between him and the defendant in
relation to the alleged
agreement. At the least, one would have
expected the summons to be preceded by a written demand, but there
was none to be found.
To be frank, the plaintiff’s case had to
stand or fall on his
word.
[21]
Unfortunately, the plaintiff’s word
is not enough. I have already expressed my reservations about the
paucity of any evidence
of the alleged oral agreement above. The
magnitude of the plaintiff’s expected return from this
envisaged enterprise makes
it unlikely that there would not have been
any written communication between the parties in the days before and
after the conclusion
of the alleged agreement.
It also makes it impossible that the
defendant, a seasoned campaigner in the property development field
would include such an agreement
with a person previously unknown to
him at their first meeting. In addition, the plaintiff had
considerable difficulty in cross-examination
to explain his role in
the envisaged development once the land had been acquired.
[22]
On the other hand, I have no reason to
doubt the defendant’s version, which appeared to be frank and
sincere. He testified
without challenge that the plaintiff had sought
a meeting with him and had proposed to introduce him to Hosi Ramovha
and that he
had declined the offer as he had an existing relationship
with Hosi Ramovha and did not need an intermediary. The probabilities
do not incline in the plaintiff’s favour. I find it difficult
to believe that the parties could have negotiated and implemented
a
project of this magnitude and complexity without any correspondence
having passed between them.
[23]
Mr Desai for the defendant tried to press
on me to find that, on the plaintiff’s pleaded case, the
plaintiff had conducted
the business of an estate agent without a
fidelity certificate required in terms of the then applicable Estate
Agents Act, 112
of 1976, and therefore that which the plaintiff
sought was the payment of an estate agent’s commission, which
is unenforceable
in terms of s12 of that Act.
[24]
It is not necessary to decide this point.
If it was a proper point, it should have been taken as an exception
to the plaintiff’s
particulars of claim. But it could not have
been taken as such because the defendant clearly realised that, if
the plaintiff’s
claim of a partnership were to be accepted
(which it must for the purposes of an exception), the plaintiff’s
pleaded conduct
in furtherance of the aims of the partnership would
clearly fall outside the business of an estate agent. There is no
evidence
before me that the plaintiff in any way acted as an estate
agent. It could hardly have been otherwise as the defendant denies an
agreement of any sort with the plaintiff.
[25]
It follows that the plaintiff’s
action must be dismissed.
Costs
[26]
Costs must follow the result. Mr Marx, for
the plaintiff, urged me without any enthusiasm that I should order
each party to pay
its own costs in case I found the scales to be
evenly balanced. As should be apparent from what I have already said,
this is not
such a case where the scales are evenly balanced. The
plaintiff has simply failed to prove that which he alleged held the
defendant
contractually liable to him.
Conclusion
[27]
In the result, the following order is made:
The plaintiff's claim is
dismissed with costs.
TM
Kanyane
ACTING
JUDGE
LIMPOPO
DIVISION, POLOKWANE
Appearances:
For
the Plaintiff:
F
Marx
Instructed
by:
Corrie
Nel & Kie Attorneys
Polokwane
e-mail:
leerklerk@cnilaw.co.za
For
the Respondent:
M
Desai
Instructed
by:
Koor
Attorneys
Houghton
Estate
Le
Roux Inc.
Polokwane
e-mail:
zahaar@koorattorneys.co.za
leroux@lerouxattorneys.co.za