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2024
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[2024] ZANCHC 91
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Karoo Wilddienste (Pty) Ltd v Griekwaland-Wes Korporatief Beperk and Others (CA&R 36/2022) [2024] ZANCHC 91 (14 June 2024)
IN THE HIGH COURT OF
SOUTH AFRICA
(NORTHERN
CAPE HIGH COURT, KIMBERLEY)
Case
no: CA&R 36/2022
HEARD
ON: 17-07-2023
DELIVERED:
14-06-2024
REPORTABLE:
YES/NO
CIRCULATE
TO JUDGES
YES/NO
CIRCULATE
TO MAGISTRATES YES/NO
In
the matter between:
Karoo
Wilddienste (PTY) LTD
Appellant
and
Griekwaland-Wes
Korporatief Beperk
Respondent
and
G.D
Andrag
First Third Party
M
Louw
Second Third Party
CORAM:
PHATSHOANE DJP et WILLIAMS, STANTON JJ
JUDGMENT
WILLIAMS J:
1.
This is an appeal, with
leave of the Supreme Court of Appeal, against the judgment and order
of Lever J dated 27 September 2021,
in which he granted absolution
from the instance, with costs in favour of the respondent.
2.
The appellant is a
company which conducts business capturing and relocating game and
owns game on the farm Jakhalsdans in the Loxton
area. Since
2012 the respondent, Griekwalandwes Korporatief Beperk (GWK), has
been conducting auctions of the game for sale
on the farm
Jakhalsdans, which over the years, as the appellant’s game
inventory increased, involved mainly the appellant’s
own game.
The
pleadings
3.
In its Particulars of
Claim the appellant pleads that on 16 May 2015 it, duly represented
by its director, Mr Nikola Van der Westhuizen,
entered into a verbal
agreement with GWK, duly represented by its auctioneer, Mr Deon
Klopper, in terms of which the parties agreed
that:
3.1
GWK, through its
auctioneer Klopper would sell the appellant’s game at a public
auction on behalf of the appellant.
3.2
GWK would within one
week of the auction issue and deliver invoices to those persons who
purchased game at the auction.
3.3
The purchase price of
the game achieved at the auction would be collected by GWK and
delivered to the appellant upon the appellant
tendering to deliver
the game.
4.
The appellant alleged
that it had fulfilled its obligations in terms of the agreement but
that GWK had failed to comply with its
obligations in that it had:
4.1
Failed to issue and
deliver invoices to the purchasers of five bontebok in an amount of
R650, 000, 00 and one black impala in an
amount of R450,000,00;
4.2
Failed to collect 25%
of the purchase price of the game mentioned in 4.1 above after the
auction;
4.3
Failed to collect and
pay to appellant the balance of the purchase price of the game
mentioned above after appellant had tendered
delivery of the game so
purchased.
5.
As a result, the
appellant claimed from GWK the amount of R1.1 million.
6.
GWK in its plea,
pleaded that Van der Westhuizen and Klopper, both duly authorized by
the appellant and GWK respectively, had entered
into an agency
agreement sometime during January 2015 to February 2015.
7.
The agency agreement
was partly verbal and partly in writing. The written portion of
the agency agreement consisted of the
General Conditions of Sale and
GWK’s Liaison Service Agreement.
8.
The Liaison Service
Agreement is additional to the General Conditions of Sale and is
applicable to the auctioning of catalogue game
such as the two lots
of game (that is the five bontebok and the black impala sold to the
first and second third parties at the
auction) which form the subject
matter of the appellant’s claim.
9.
Catalogue game comprise
of those animal too young to be delivered to the successful bidder on
the day of the auction or immediately
thereafter. It was agreed
between all parties concerned that these animals would be ready for
delivery sometime during September
2015.
10.
The express,
alternatively tacit, and further alternatively implied terms of the
Liaison Service Agreement were as follows:
10.1
The purchaser of
catalogue game and the appellant as seller are required to enter into
the written Liaison Service Agreement with
GWK immediately after
acceptance of the bid.
The sale of catalogue
game is subject to the resolutive, alternatively, suspensive
condition that no agreement of sale will come
into effect between the
seller and purchaser:
10.1.1
Unless and/or until
both the seller and purchaser sign the Liaison Service Agreement and
the seller and purchaser thereafter fully
perform in terms of the
General Conditions of Sale and the Liaison Service Agreement,
alternatively unless or until both seller
and purchaser perform fully
despite the failure by one or both parties to sign the Liaison
Service Agreement;
10.1.2
A deposit of 25% of the
purchase price of catalogue game will be payable to GWK as agent of
the seller directly after the auction
or on the day of the auction;
10.1.3
The balance of the
purchase price will become due to GWK, as agent of the seller, when
the game is ready to be delivered to the
purchaser.
10.1.4
The catalogue game will
only be delivered to the purchaser after payment of the balance of
the purchase price to GWK, as agent of
the seller, in order to pay it
over to the seller after settlement of expenses and commission.
11.
In short, the above are
the terms of the agreement pleaded by GWK which are of relevance to
the appeal.
12.
GWK’s defence as
pleaded is that the appellant failed to perform in terms of the
agreement as pleaded in its Particulars of
Claim. In addition,
the failure of the appellant, on the one hand, and the two purchasers
of the game on the other, to sign
the Liaison Service Agreement or to
perform in terms of the General Conditions of Sale and the Liaison
Service Agreement resulted
in no sale agreement coming into effect
between the appellant and the purchasers, consequently relieving GWK
from any liability
towards the appellant in respect of the stated
catalogue game.
The
evidence
13.
In the court
a
quo
the appellant
called two witnesses to testify on its behalf.
13.1
Mr J Van der Bergh, a
neighbouring farmer, testified that GWK’s auctioneer, Klopper,
had informed him and Van der Westhuizen
of the appellant, about a
year after the auction in issue, that GWK is liable to the appellant
for the monies claimed. That
GWK owes the appellant the money
since it did not issue and deliver invoices to the purchasers, did
not collect the deposits and
failed to attend to the delivery of the
game during September 2015.
13.2
Van der Westhuizen who
also testified, gave evidence to the effect that it was the agreement
throughout that GWK would collect the
purchase price from the
purchasers otherwise he could have held the auction himself. He
confirmed the agreement as pleaded
in appellant’s Particulars
of Claim as well as the conversation which Klopper had with himself
and Van der Bergh as alluded
to above.
13.2.1
Van der Westhuizen
testified that he knew the General Conditions of Sale applicable to
the auction which were also attached to the
2015 auction catalogue.
He denied having been alerted to the terms of the Liaison Service
Agreement or being aware of its
terms. In fact he testified
that he had never seen such a document either at previous auctions or
at the 2015 catalogue game
auction.
The Court
a quo’s
findings
14.
In granting the
respondent’s application for absolution from the instance, at
the end of the appellant’s case, the court
a
quo
in essence
found that:
14.1
It was not normal or
customary for the auctioneer, being the seller’s agent to take
on the obligations of the purchasers to
the seller;
14.2
An essential averment
was missing from the claim as pleaded in the Particulars of Claim
that would establish a factual or legal
basis for holding the GWK
liable for the obligations of the respective purchasers; and
14.3
Without an underlying
contractual basis pleaded for a claim for specific performance by GWK
on an obligation that rests on the respective
purchasers, the
allegations of what Mr Klopper may or may not have said amount to
nothing more than an opinion without any discernible
basis in fact or
in law to hold such an opinion. Such assertions and opinion are
untenable and inherently unacceptable as
evidence, even at the close
of plaintiff’s case.
The
grounds of appeal
15.
Mr Van Tonder SC, who
appeared for the appellant, has raised four grounds of appeal in the
appellant’s heads of argument.
These grounds differ to a
certain extent from those raised in the notice of appeal but since
all the issues have been covered in
the trial there can be no
prejudice to GWK. I therefore intend to deal with the grounds
as argued and raised in the heads
of argument.
16.
The grounds of appeal
are, that the trial court erred in; (i) finding that the appellant’s
particulars of claim lacked an
averment essential to establish a
factual or legal basis for holding GWK liable for the obligations of
the two purchasers, (ii)
holding that the evidence relating to
Klopper’s confirmation of the respondent’s liability to
pay was irrelevant; (iii)
speculating that the statement attributed
to GWK’s Mr Bosman, gleaned from GWK’s response to a
request for trial Particulars,
that his attempt to arrange for
delivery to one of the purchasers was merely to facilitate delivery
as part of his duty as agent;
and (iv) concluding that the
Particulars of Claim allowed for no other reasonable explanation but
that the appellant sought specific
performance from GWK of the
obligations of the purchasers.
The arguments
17.
The main thrust of the
appellant’s argument is that there has been an overly technical
approach to, and an over-analysis of
the matter beyond the
pleadings. Its claim for specific performance merely required
from the appellant to allege and prove
the terms of the contract,
compliance with any antecedent or reciprocal obligation or to tender
compliance. This the appellant
had done by adducing the
evidence in support of its claim. It has never been the
appellant’s case that GWK was liable
to perform the obligations
of the respective purchasers or to stand good for the obligations of
the respective purchasers.
The obligations imposed on GWK in
terms of the agreement pleaded by the appellant required of GWK to
collect a 25% deposit in respect
of the purchase of the game, issue
invoices in respect of the purchases and to collect the balance of
the purchase price and make
payment thereof to the appellant against
tender of the game. GWK has admittedly failed to comply with
its obligations as
pleaded by the appellant and raised tacit and/or
implied terms to the agreement which GWK has the onus to prove.
18.
The argument is further
that to have granted absolution at the end of the appellants case was
to allow GWK to escape compliance
with its obligations under the
contract by relying on its own breach, which is not allowed in law.
19.
Mr Gilliland, for GWK,
argued in essence that the appellant’s contention pertaining to
GWK’s obligation to specifically
perform its own obligations,
as opposed to those of the purchasers of the game, should be
considered in the context of an agency
agreement and that the only
obligations which GWK is obliged to perform are those that arise from
the naturalia of an agency agreement.
The purported obligation
of an auctioneer to pay the purchase price of goods sold at an
auction is not one of the naturalia of
an agency agreement.
Such an obligation, it is argued, can only arise if there is a
special agreement to that effect and
such an agreement must be
pleaded. In the absence of such special agreement having been
pleaded, there is no persuasive and
inherently acceptable evidence to
support such a finding.
Discussion
20.
The test to be applied
for absolution from the instance at the end of the plaintiff’s
case has been formulated as follows
in
Gordon
Lloyd Page and Associates v Rivera and Another
2001(1)
SA 88 (SCA) at 92:
“
[2]
The test for absolution to be applied by a trial court at the end of
a plaintiff's case was formulated in Claude Neon Lights
(SA) Ltd
v Daniel
1976
(4) SA 403
(A)
at 409G-H in these terms:
“.
. . when absolution from the instance is sought at the close of
plaintiff's case,
the
test to be applied is not whether the evidence led by plaintiff
establishes what would finally be required to be established,
but
whether there is evidence upon which a Court, applying its mind
reasonably to such evidence, could or might (not should, nor
ought
to) find for the plaintiff.
(Gascoyne v Paul and Hunter,
1917
T.P.D. 170
at
p. 173; Ruto Flour Mills (Pty.) Ltd. v Adelson (2),
1958
(4) SA 307
(T)).”
This
implies that a plaintiff has to make out a prima facie case - in the
sense that there is evidence relating to all the elements
of the
claim - to survive absolution because without such evidence no court
could find for the plaintiff
(Marine & Trade Insurance Co Ltd v Van der Schyff
1972
(1) SA 26
(A)
37G-38A; Schmidt Bewysreg 4
th
ed
91-92).
As
far as inferences from the evidence are concerned, the inference
relied upon by the plaintiff must be a reasonable one, not the
only
reasonable one
(Schmidt 93). The test has from time to time been formulated in
different terms, especially it has been said that the court must
consider whether there is “evidence upon which a reasonable man
might find for the plaintiff” (Gascoyne loc cit)
- a test
which had it origin in jury trials when the “reasonable man”
was a reasonable member of the jury (Ruto Flour
Mills). Such a
formulation tends to cloud the issue.
The
court ought not to be concerned with what someone else might think;
it should rather be concerned with its own judgment and
not that of
another “reasonable” person or court. Having said this,
absolution at the end of a plaintiff's case, in
the ordinary course
of events, will nevertheless be granted sparingly
but when the occasion arises a court should order it in the interests
of justice.”
(own
underlining)
21.
The argument by Mr
Gilliland for GWK, which was upheld by the court
a
quo
, that the
agreement postulated by the appellant is not the normal or customary
agreement relating to agency and auctions, is correct.
It is
however not the test to be applied at the end of the plaintiff’s
case. The court must assume in the absence of
very special
considerations, such as the inherent unacceptability of the evidence
adduced, that the evidence is true. The
court should not at
this stage evaluate and reject the plaintiff’s evidence.
(see
Atlantic
Continental Assurance Co of SA v Vermaak
1973 (2) SA 525(E)
, at 527C).
22.
The fact that GWK
admits to a large extent the oral agreement alleged by the appellant,
save for the plea of non-compliance with
certain conditions, the
evidence relating to Klopper’s confirmation of GWK’s
liability, however tenuous, together with
Bosman’s attempts to
facilitate delivery of the game to the first third party, these
factors as a whole, in my view lend
some support for the appellant’s
version of the agreement entered into with GWK. Mr Van Tonder
is correct in my view
when he argued that the court
a
quo’s
finding
that Bosman’s actions could very well have been solely in
pursuance of an attempt to collect a commission for GWK
is
speculative at this stage of the proceedings and is not the only
reasonable inference to be made in the circumstances.
23
It is clear from the test for absolution restated in the extract from
the
Gordon Lloyd Page
matter (
supra
) that absolution
from the instance at the end of the plaintiff’s case should be
granted sparingly. All the appellant
had to do was to make out
a
prima facie
case i.e. to present evidence relating to all
the elements of its claim, which it has done. It is not for the
court at the
end of the plaintiffs case to weigh up all the different
possible inferences, but merely to determine whether one of those
inferences
is in favour of the plaintiff (see
Marine & Trade
Insurance Co. Ltd v Van der Schyff
1972(1) SA 26 (A) at 38H).
24
If follows from the aforegoing that I am of the view that the court
a
quo
should have refused the application for absolution from the
instances, in the circumstances of this matter. I therefore do
not deem it necessary to deal with any of the other arguments
inter
alia
the issue of cession, raised by the parties. Those are
issues best left for argument at the end of the trial.
The following order
made:
a)
The appeal is
upheld with costs, such costs to include the costs of two counsel.
b)
The order of
absolution from the instance with costs in favour of the respondent
is set aside.
c)
The trial is to
proceed in the normal course.
CC
WILLIAMS
JUDGE
I
concur
MV PHATSHOANE
DJP
I concur
A STANTON
JUDGE
For
Appellant:
Adv
LJ Van Tonder SC
With
Adv GJ Gagiano
Engelsman
Magabane Inc
For
Respondent:
Adv
JG Gilliland
Van
de Wall Inc