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[2019] ZASCA 9
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Twende Africa Group (Pty) Ltd t/a TAG Marine v MFV Qavak (476/2018) [2019] ZASCA 9 (12 March 2019)
Links to summary
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case
no: 476/2018
Name of
ship:
MFV QAVAK
:
In the
matter between:
TWENDE
AFRICA GROUP (PTY) LTD
t/a
TAG
MARINE APPELLANT
and
MFV
QAVAK FIRST
RESPONDENT
Neutral
citation:
MFV Qavak: Twende
Africa Group (Pty) Ltd v MFV Qavak
(476/2018)
[2019] ZASCA 9
(12 March 2019)
Coram:
NAVSA AP, WALLIS, DAMBUZA and MAKGOKA JJA and
DAVIS AJA
Heard
:
26 February 2019
Delivered
:
12 March 2019
Summary:
Shipbroker – entitlement to
commission – dependent on agreement between shipbroker and
either seller or buyer to pay
commission for services rendered by
broker – broker advertising sale of vessel without authority
from seller – prospective
purchaser responding to advertisement
– no contractual relationship established – no basis for
inferring the existence
of a tacit contract.
ORDER
On
appeal from:
Eastern Cape Division of
the High Court, Port Elizabeth (Goosen J, sitting as court of first
instance):
The
appeal is dismissed with costs.
JUDGMENT
Wallis
JA (Navsa AP, Dambuza and Makgoka JJA and Davis AJA concurring)
[1]
Fisherman Fresh CC (Fisherman Fresh) is the
registered owner of the MFV
Qavak
.
It purchased the
Qavak
from an Irish company, C & M Donohue Fishing Ltd (Donohue
Fishing), in terms of a Memorandum of Agreement (MOA) dated 15 August
2017 but executed by both parties on 18 August 2017. On 26 January
2018, the appellant, Twende Africa Group (Pty) Ltd t/a Tag Marine
(TAG) caused the
Qavak
to be arrested in Port Elizabeth Harbour in an action
in
rem
based upon a claim for broker’s
commission arising out of the purchase of the vessel. On 1 February
2018, Fisherman Fresh
applied as a matter of urgency for the release
of the vessel from arrest. Goosen J, sitting in the Eastern Cape
Division of the
High Court, Port Elizabeth, granted that relief on
20 February 2018 and gave leave to appeal on 17 April 2018.
TAG’s
claims
[2]
TAG’s summons, on which the arrest
was based, advanced a claim for broker’s commission ‘arising
out of ship brokerage
services rendered by it’ to Fisherman
Fresh. Its affidavit opposing the application to set the arrest aside
repeated the
claim that it had acted as a broker on behalf of
Fisherman Fresh in negotiating the conclusion of the purchase of the
Qavak
and
that this entitled it to claim commission, because the sale had been
concluded through its instrumentality or agency.
[3]
Alternatively to this claim, TAG alleged in
its answering affidavit that Fisherman Fresh and Donohue Shipping
agreed that they would
purchase the vessel through TAG and would not
employ other brokers or do anything to frustrate TAG’s
opportunity to earn
commission. It said that there had been a breach
of this obligation and claimed an amount equivalent to 10 percent of
the purchase
price as damages in lieu of the lost commission.
[4]
Over and above this damages claim, and in
the event of the court holding that TAG only had an agreement with
Donohue Fishing, it
contended that Fisherman Fresh interfered
unlawfully with that relationship by clandestinely concluding the
sale through a different
broker, thereby causing TAG to suffer
damages in the amount of the lost commission. Although this claim was
based on an agreement
with Donohue Fishing and not Fisherman Fresh,
it was alleged that ‘if sellers and buyers are permitted to
employ brokers
who did not introduce them, the business of
shipbrokers will suffer massive uncertainty, and their goodwill will
be significantly
eroded.’ The affidavit alleged that Fisherman
Fresh owed a legal duty to TAG to respect its right to its goodwill.
[5]
Neither of these damages claims was
mentioned in the summons, or formed the basis for the arrest, but in
the
Thalassini Avgi
this
court held that it was open to a party that obtained an arrest
in
rem
on one ground, to rely on other
grounds where it was sought to set the arrest aside.
[1]
It is therefore necessary to consider all three claims in deciding
whether the arrest was correctly set aside by the high court.
[6]
In terms of s 3(4)(
b
)
of the Admiralty Jurisdiction Regulation Act 105 of 1983 (the AJRA)
an action
in rem
in
pursuit of a maritime claim may be instituted by the arrest of a
vessel, where the owner of the vessel to be arrested would be
liable
in personam
in
respect of the claim giving rise to the arrest. In order to sustain
its arrest of the
Qavak
,
TAG bore the onus to prove that it had a personal claim against
Fisherman Fresh and that the claim was a maritime claim. The standard
of proof required to discharge that onus was no more than a prima
facie case, a test that is satisfied if there is evidence, which,
if
accepted, will establish a cause of action.
[2]
[7]
TAG’s contractual claim for broker’s
commission was a maritime claim in terms of sub-para (
p
)(ii)
of the definition of a maritime claim in s 1 of the AJRA, as a
claim ‘arising out of or relating to . . .
the
remuneration of . . . any person appointed to act or who acted . . .
as a broker in respect of any . . . sale . . . relating
to a ship’.
Its alternative claim based on a breach of the alleged brokerage
agreement was also a maritime claim in terms
of that section. It is
less clear that a claim for damages for interference with the
broker’s contract with a third party
is a maritime claim, but
in view of the fact that TAG failed to make out a prima facie case
under this head it is unnecessary to
express a conclusive view on the
point.
The
contractual claim for commission.
[8]
It is apposite to preface the consideration
of the evidence on this claim by reminding ourselves of the basic
principles applicable
to a broker’s entitlement to commission.
These are summarised in the following passage from
The
Law of Agency in South Africa
:
[3]
‘
The broker is remunerated by
commission. But it is essential that he prove that there was an
express or an implied contract of employment
as broker and an express
or implied promise to pay remuneration.’
No
entitlement to commission can arise in the absence of an agreement
between the broker and one, other or both of the parties to
a
particular transaction that commission will be paid to the broker in
the event of a particular outcome being achieved as a result
of the
broker’s efforts on behalf of the client. In the absence of
some such contract, the broker’s involvement in
negotiations,
however successful, does not give rise to a right to claim
commission.
[9]
In the summons and the answering affidavit
the contractual claim against Fisherman Fresh was advanced on the
basis that the evidence
disclosed, on the requisite prima facie
basis, that Fisherman Fresh appointed TAG as its agent to find a
fishing vessel for it,
in return for which it would pay TAG
commission. TAG did not rely on an express agreement to this effect,
for there was none. Its
case was that such an agreement was capable
of being inferred from the following dealings that it had with
Fisherman Fresh.
[10]
In June 2017 TAG listed the
Qavak
for sale on its website. On 10 August 2017, Mr van Heerden,
acting on behalf of Fisherman Fresh, enquired whether the
vessel was
still for sale and, if so, the price. Mr Cilliers replied on behalf
of TAG saying that he had spoken to the owners a
month previously and
they ‘will take USD 500 000’. Mr van Heerden
responded immediately and asked whether the
vessel was still
available so that ‘we’
[4]
could fly over to view it. Mr Cilliers then sent Mr van Heerden draft
wording of a letter of intent to be placed on a Fisherman
Fresh
letterhead and signed on its behalf. This was done at 1.02 p.m. that
afternoon. The exchange of emails between Mr van Heerden
and Mr
Cilliers lasted two hours from start to finish.
[11]
The letter of intent, addressed to TAG,
said that, on acceptance of the vessel, after inspection and
agreement on a negotiated price,
Fisherman Fresh intended to purchase
the vessel ‘offered to us on your ID Code: MFV Qavak’.
This descriptive phrase
conveyed that TAG was offering the vessel for
sale on behalf of the seller. The letter reinforced this impression
with a request
for confirmation that the vessel was available for
sale. A further request for ‘her owners’ to permit it to
be inspected
by marine surveyors on behalf of Fisherman Fresh,
strengthened the impression that TAG was representing the owners of
the vessel.
It must be borne in mind that this was TAG’s
wording.
[12]
Mr Cilliers forwarded the letter of intent
to Mr Donohue that same day, 10 August. In response he received the
unwelcome news that
the vessel was in the process of being sold and
the only thing holding up the deal was an issue over delivery. He was
also told
that if the sale fell through there were three other buyers
waiting in the wings. Undeterred, he went back to Mr van Heerden at
1.48 a.m. the following morning, 11 August, and suggested that
Fisherman Fresh should make an offer subject to inspection.
Mrs van
Heerden replied shortly before 9.00 a.m. the same day, saying that
they would make an offer of USD 500 000. Mr Cilliers
said he
would submit that offer and provided a draft offer to purchase to be
placed on a Fisherman Fresh letterhead and signed
on its behalf. This
was done and Mrs van Heerden returned the signed offer to him that
same day.
[13]
The offer to purchase, sent to TAG
and received and forwarded by it, without demur, to Donohue Fishing,
was entirely destructive
of TAG’s case that it was acting as
broker on behalf of Fisherman Fresh in this transaction. It was
addressed to TAG itself
and the opening section read as follows:
‘
OFFER TO PURCHASE MFV Qavak
Dear Stephen,
On behalf of
our buyers
Fisherman Fresh Fish SA,
we would like to offer
your sellers
500 000 (Five Hundred
Thousand United States Dollars) for the purchase of MFV Qavak. Should
your sellers
accept our offer we will immediately sign a
memorandum of agreement salesform 1987-2012 and proceed with the sale
agreement based
on the offer below.
Sellers: Coleman Donohue
Buyers: Fisherman Fresh SA’ (Emphasis added.)
Mrs
van Heerden signed the offer to purchase. It contained no mention of
commission. The standard form sales contract referred to
(Salesform
1987-2012) likewise makes no reference to commission.
[14]
That the offer was inconsistent with the
alleged contractual relationship between TAG and Fisherman Fresh was
apparent from the
two references to ‘your seller’. These
made it glaringly obvious that TAG was claiming to be the broker for
the owners
of the Qavak. Fisherman Fresh was in the same position as
any potential purchaser responding to an advertisement and expressing
interest in purchasing the goods advertised for sale. A comparable
example would be a potential purchaser responding to an estate
agent’s advertisement of a house for sale. Expressing interest,
inspecting the property or submitting an offer would not
give rise to
a contractual relationship between the potential purchaser and the
agent. The potential purchaser would believe, and
be entitled to
believe, that the agent had a mandate from the seller and that any
question of commission would be a matter between
the seller and the
agent and no concern of the purchaser.
[15]
The position would be different if the
services of a broker were employed to find a vessel for a potential
purchaser. Such a situation
had occurred a few months earlier, when
TAG was employed to find a vessel for another South African fishing
company (J &
D Ship Group). That had been at the end of May
or early June 2017. That is when it discovered the
Qavak
advertised for sale on another website. This led to some
communication between Mr Cilliers and Mr and Mrs Donohue, to which I
will revert, but TAG’s client was not forthcoming with an offer
and the matter fell away.
[16]
Mr Cilliers submitted the offer to Mr
Donahue, who rejected it because he had another offer for 550 000
euros. Thereafter there
was an exchange of emails between Mr Cilliers
and Mr Donohue. Despite his lack of success up to this stage Mr
Cilliers ended this
exchange by saying:
‘
She is a great vessel I will
try to push for 600k let’s see?’
Needless
to say that was entirely inconsistent with his acting as broker on
behalf of Fisherman Fresh. An agent for a potential
purchaser may
legitimately suggest to the client that a sale will only be possible
if a higher price is offered, but an endeavour
to push the offer up
above the existing asking price serves only the seller’s
interests. Nonetheless it was what Mr Cilliers
did. He wrote to Mr
van Heerden informing him of the offer at 550 000 euros and
said:
‘
If you have a budget I would
suggest a strong counter?’
There
was no response to this suggestion.
[17]
These exchanges were inconsistent with the
conclusion of a contract between TAG and Fisherman Fresh. Far from
establishing a prima
facie case of the existence of such a contract,
they established quite clearly that there was no such contract. The
additional
factors referred to by counsel, such as that the Van
Heerdens were aware that TAG was a broker, or that the offer provided
for
the deposit to be held by TAG, added nothing to the case. They
were precisely what was to be expected from a ship broker acting
on
behalf of the owners of a vessel and trying to bring about a sale.
That is what TAG said it was doing by way of the advertisement
on its
website. It repeated it in the letter of intent and in the offer to
purchase, both of which it drafted. The inevitable conclusion
is that
TAG did not make out a prima facie case for the arrest of the vessel
on the basis of a contractual claim for commission.
[18]
TAG sought to rely upon the judgment
of Wessels J in
Benoni Produce &
Coal Co Ltd v Gundelfinger
[5]
and in particular the following passage:
‘
It is no doubt true that a
broker who approaches a buyer or seller acts in the first instance as
the agent of the person who employs
him but directly the other party
is aware of the fact that he is a broker, he becomes the agent of
both parties not with a plenary
power to bind both parties as he
chooses but to communicate between them until they are
ad
idem.
’
From
this counsel sought to fashion an argument that, once the Van
Heerdens knew that they were dealing with a broker, TAG was acting
as
agent for both parties and this entitled it to claim commission from
them. The submission was that Fisherman Fresh had authorised
TAG to
represent it in negotiating the sale of the vessel and had thereby
become the agent of both Fisherman Fresh and Donohue
Fishing and
entitled to claim commission from both.
[19]
The argument was misconceived. It defied
the basic principle set out in para 8 that the right to claim
commission must flow from
an agreement between broker and client. The
Benoni Produce
case was concerned with the legal effect of broker’s notes
furnished by a broker to the seller of goods and a potential
purchaser. The question was whether the broker’s notes
constituted a binding contract, even if one of the parties had not
expressly agreed to their terms. The court held that they were not
and that it was permissible to go behind them to determine whether
there was
consensus ad idem
between the parties.
[20]
The statement that the broker
‘becomes the agent of both parties’ related only to the
broker’s obligation to communicate
to each of the parties what
the other was saying. The broker was the jointly chosen channel of
communication between seller and
purchaser, but that had nothing to
do with which of them would be liable to pay for the broker’s
services. The judgment did
not discuss that issue, which is hardly
surprising, as the case did not concern commission, but involved a
dispute between buyer
and seller about whether a binding contract had
come into existence. Even where, for some limited purposes, such as
communication
between the parties, the broker is an agent for both
parties, the position remains that brokers are primarily the agent of
the
party that employs them and gives them their mandate.
[6]
It is to their mandatary that the broker must look for their
commission. If the broker is unwise enough to become involved in a
transaction without securing an agreement by either party to pay
commission, no right to commission will arise on the successful
completion of the transaction.
The
contractual claim for damages
[21]
As explained by Mr Cilliers in his
affidavit, TAG argued that it had concluded a brokerage agreement
with Fisherman Fresh in terms
of which it had the duties alleged in
relation to the contract under the contractual claim. The immediate
difficulty with this
contention was that once one arrived at the
conclusion that there was no prima facie case of the existence of any
such contract,
there was no basis for holding that there was a
contract that could be breached.
[22]
Counsel strove to overcome this hurdle by
contending that, even in the absence of any contract for TAG to act
as broker on behalf
of Fisherman Fresh, there was what he termed a
limited exclusivity agreement, not amounting to a sole mandate. The
essence of this
agreement was that once Fisherman Fresh and Donohue
Fishing were in communication with one another over the possible
purchase of
the vessel, using TAG as the means of communication, they
were contractually bound not to employ other brokers to conclude the
sale and would not do anything to frustrate TAG’s opportunity
to earn commission.
[23]
Counsel identified certain factors that he
submitted supported an inference that such a contract had been
concluded at the requisite
prima facie level. These were, first, the
nature of TAG’s business as a broker; second, that it had
developed a website and
a data base of vessels that were actually or
potentially available for sale in the market as well as a data base
of actual or potential
buyers; and third, that the data base was the
trigger for Fisherman Fresh and Donohue Fishing coming together. From
this he sought
to contend for an inference of the existence of a
tacit agreement providing for limited exclusivity.
[24]
None of these factors can be divorced
from those already discussed in regard to the contention that
Fisherman Fresh had appointed
TAG as its broker to negotiate the
purchase of the vessel. The argument wavered at times between a
contention that limited exclusivity
was a tacit term of the alleged
contract for brokerage services, and one that it was an independent
contract. An argument based
upon a tacit term was doomed to fail in
the light of the conclusion that there was no prima facie proof of
the existence of a brokerage
contract. One cannot have a tacit term
unless there is a contract of which it forms part.
[25]
Insofar as the argument was based upon a
tacit agreement, the requirements for such an agreement are that the
person proposed to
be fixed with the tacit agreement must be aware of
all the circumstances connected with the transaction; their actions
must not
be equivocal and the tacit contract must not extend to more
than the parties contemplated.
[7]
Even at the level of a prima facie case these hurdles were not
surmounted. Fisherman Fresh were not aware that TAG advertised the
Qavak
on
its website without the authority of its owners, Donohue Fishing. It
thought that it was communicating with the owner of the
vessel via
the latter’s broker, when it was not. The proposed contract
extended beyond anything Fisherman Fresh could have
contemplated at
the time of these dealings. Its only contemplation was that it was
dealing with the owner’s agent who was
advertising the
Qavak
for sale. There was thus no unequivocal
conduct by Fisherman Fresh indicating an intention to appoint TAG as
its broker. The effect
of the contention was that when a prospective
purchaser deals with a broker of any type, once there has been some
interaction the
purchaser is disentitled to deal through another
broker. That is manifestly not the law, as countless cases involving
disputes
over the obligation to pay commission to estate agents in
precisely that situation demonstrate. For all those reasons the
argument
based upon a limited exclusivity agreement must fail. There
was no evidence that, if believed at a trial, could lead a court to
conclude that such an agreement existed.
Unlawful
interference with TAG’s contract with Donahue Fishing.
[26]
A recognised form of delictual
liability under this head is where a third party induces a party to a
contract to breach its contract
with the complainant.
[8]
The cause of action advanced under this head was that by dealing with
Donohue Fishing through another broker, Fisherman Fresh had
unlawfully interfered with TAG’s brokerage contract with
Donohue Shipping. It contended that this resulted in TAG losing
the
sale and being deprived of its commission. The lost commission was
said to constitute the damages suffered.
[27]
Essential to prima facie proof of
this claim was prima facie proof of the existence of a contract
between TAG and Donahue Fishing.
Absent such a contract, the claim of
unlawful interference was bound to fail. The evidence in support of
it must be examined. In
2015 TAG had been asked by its Norwegian
associates to list the
Qavak
on
its website. There was no evidence as to the basis upon which this
was done or that TAG had any dealings with either Mr or Mrs
Donohue.
In any event nothing came of this listing.
[28]
In May or June 2017 TAG was looking for a
fishing vessel for its South African client, J & D Ship Group. Mr
Cilliers came across
the
Qavak
on
a website advertising fishing vessels and sent an email to Mr Donohue
on 3 June 2017 advising that he was developing a possible
purchase of the vessel for South African clients and asking for
certain information. Mrs Donohue replied to his enquiry saying
that
the sale price was 400 000 euros or nearest offer. Mr
Cilliers sent some further emails to Mrs Donohue that day,
but
received no reply. Nothing came of these dealings because his clients
did not make an offer or seek to take the matter any
further.
[29]
Mr Cilliers then decided to list the
Qavak
for sale on TAG’s website. There
was no evidence that he did this with the consent of the Donohues or
Donohue Fishing, or
that they even knew about it. He furnished no
explanation for having done this. Mr van Heerden responded to this
advertisement
in the manner already described. I will pick up the
tale from the stage where Mr Cilliers submitted the offer to purchase
to Mr
Donohue. Prior to that there was no evidence of any
communication between Mr Cilliers and the Donohues that would support
a conclusion
that he had a mandate from Donohue Fishing to find a
buyer for the vessel on their behalf.
[30]
Mr Donohue’s response to the offer to
purchase was to say that he had a much larger offer on hand and
another potential buyer
who had indicated that he would pay 550 000
euros ‘so I think we are too far apart’. Slightly
aggrieved by this,
Mr Cilliers responded saying that in the light of
his conversation with Mrs Donohue on 3 June he had assumed that
the price
they were looking for was much lower and, had he known they
were asking more than he had then been told, he could ‘guide on
the same which needed to include my commission as well’. Mr
Donohue’s response was to say that his wife had made a
mistake
and, in the light of the interest that had been shown in the vessel,
the price had increased. He apologised for any inconvenience
caused.
[31]
This answer brought forth the spirited
response by Mr Cilliers mentioned in para 16 that he would ‘push
for 600k’. Mr
Donohue replied the following day and explained
that the potential new owners of the vessel were trying to arrange
for its delivery
and finalising the paperwork. They were serious
about the purchase and had been to Ireland three times to view the
vessel. He ended
his email as follows:
‘
I only have until maybe
Tuesday to sign the agreement. So the situation I am in is if
your
clients
come over
and I prolong the deal it could mean the other buyers may become
impatient and walk away and I can’t risk that.
Sorry for any inconvenience caused.’ (Emphasis
added.)
Even
the dogged Mr Cilliers recognised that this was the end of the road
and replied:
‘
Good luck with the
transaction. Should anything change we can engage. In the meantime I
will look for another 2 candidates similar
in size.’
[32]
Two things were apparent from this
exchange. The first was that Mr Donohue understood that Mr Cilliers
was acting as broker on behalf
of Fisherman Fresh in engaging with
him over the possible purchase of the
Qavak
.
That is why he referred to them as ‘your clients’. The
second was that Mr Cilliers intended to pursue efforts to ‘find’
a vessel for Fisherman Fresh even though they had never asked him to
do so. This was of a pattern with his decision to list the
Qavak
on TAG’s website without seeking
any authorisation from Donohue Fishing. Both reinforced the
understanding that TAG did not
have an agreement with Donohue Fishing
to act as its broker to find a purchaser for the
Qavak
.
[33]
Counsel submitted that the reference to the
price including his commission, in Mr Cilliers’ email to Mr
Donohue referred to
in para 30, supported a contention that
commission would be payable on a successful sale resulting from his
introduction of Fisherman
Fresh. The problem is that there was
nothing to convey to Mr Donohue that the commission would be payable
by Donohue Fishing. His
understanding was clearly that Mr Cilliers
was acting on behalf of Fisherman Fresh, so any reference to
commission would not have
been understood as referring to Donohue
Fishing paying commission.
[34]
A further factor on which counsel relied
was that, to the knowledge of Donohue Fishing, TAG was a ship broker
earning its living
as such. All that is true, but the problem with
the submission was that, by its own conduct in listing the
Qavak
for sale without obtaining a mandate
from Donohue Fishing, TAG fell between two stools. In relation to
potential purchasers, such
as Fisherman Fresh, it appeared to be the
broker acting for the sellers, and in relation to Donohue Fishing, it
appeared to be
a broker acting on behalf of a potential purchaser. On
Mr Cilliers’ evidence it had not sought or obtained a mandate
to act
in that capacity from either of the two parties. It was
submitted that Mr Donohue should have told Mr Cilliers that Donohue
Fishing
had employed another broker to sell the
Qavak
,
or should have referred his enquiries to that broker in Norway. I can
see no foundation for either contention. As to the first,
Mr Donohue
did not think that TAG was acting on behalf of Donohue Fishing. As to
the second, unless Donohue Fishing had given an
exclusive mandate to
the Norwegian brokers, there was no obligation on it to refer
prospective purchasers to it. Nothing prevented
it from dealing with
or accepting unsolicited offers from a third party.
[35]
Lastly, counsel relied on what he
characterised as the evasive response of both Fisherman Fresh and
Donohue Fishing to emails sent
to them by Mr Cilliers after the
event. On 24 August Mr Cilliers sent an email to Mr Donohue saying
that he received word through
a Norwegian broker that the
Qavak
was still up for sale and asked whether
‘your sale fell through’. Mr Donohue’s response
was:
‘
The vessel is sold, hope you
manage to find another.’
[36]
The suggestion in regard to this
reply was that Mr Donohue was being deliberately coy in not saying
that the sale had been to Fisherman
Fresh, particularly in the light
of the addition of the words ‘hope you manage to find another’,
which was pointless
as Fisherman Fresh was, to Mr Donohue’s
knowledge, no longer in the market for a vessel. Even if one accepts
that he could
have been more direct and forthcoming, this does not
take the matter any further. It could not overcome the fundamental
stumbling
block that Mr Cilliers entered into these negotiations
without taking any steps to confirm with Donohue Fishing that it was
willing
to pay TAG a commission if it successfully introduced a
purchaser who, as a result of the introduction, purchased the vessel.
[37]
From the side of Fisherman Fresh,
counsel pointed out that Mrs van Heerden signed the sale agreement on
18 August 2017 only three
days after Mr Cillier’s final
communication with Mr Donohue. On 19 August Mr Cilliers sent Mr van
Heerden details of a Norwegian
Freezer vessel as a suggested
alternative to the
Qavak,
but
received no reply to his email. Three days after that he sent an
email to Mr van Heerden asking if there had been any feedback
on the
last offers and saying that he had checked with the owners of the
Qavak,
whether
they had managed to sell it.
[9]
Again there was no reply. Mrs van Heerden said in her replying
affidavit that she was in Ireland when the second email came in
and
in any event was under no obligation to respond to it.
[38]
Counsel’s submission was that the
failure to respond to these emails and to say that Fisherman Fresh
had purchased the
Qavak
through
the intervention of another broker, demonstrated a ‘guilty’
frame of mind and knowledge that in some way they
were acting in
breach of TAG’s rights. In my view, this is far too tenuous a
connection to establish the case his client
was trying to make. A
prospective customer who has viewed a house with one agent is not
under any obligation not to view it with
a different agent or not to
deal with the seller through the second agent. There are countless
cases demonstrating that reality
and it was not suggested that ship
brokers are in any different position from estate agents in that
regard.
[39]
To sum up, TAG failed to make a prima facie
case that it had concluded an agreement with Donohue Fishing to act
as broker on its
behalf to find a purchaser for the
Qavak
.
Its case against Fisherman Fresh for wrongful interference with that
contract accordingly fell at the first hurdle. In my view
it would
also have fallen at the hurdle of showing that any such agreement was
exclusive in either the normal sense of a sole mandate
or the more
restricted sense of partial exclusivity advanced by counsel. Mr
Cilliers’ evidence did not even attempt to establish
the
existence of a sole mandate and was inconsistent with it, as he knew
that as recently as June 2017 the vessel had been advertised
on
another website and through another broker. Unless a sole mandate had
been given, Fisherman Fresh were entitled to deal with
Donohue
Fishing through any agent acting on its behalf and that is what it
did. That could not constitute the wrongful interference
with
contractual relations on which this claim was based. The allegations
of collusion between Fisherman Fresh and Donohue Fishing
to deprive
TAG of its commission were not justified even on the basis of a prima
facie case.
Result
[40]
The appeal is dismissed with costs.
___________________________
M J D WALLIS
JUDGE
OF APPEAL
Appearances
For
appellant: D Cooke
Instructed
by: Thomson Wilks Inc, Cape Town;
Honey
Attorneys, Bloemfontein.
For
respondent: R G Buchanan SC
Instructed
by: Greyvensteins Attorneys, Port Elizabeth;
Kramer,
Weihmann & Joubert Attorneys, Bloemfontein.
[1]
Cargo
Laden and Lately Laden on Board The MV
Thalassini
Avgi v MV Dimitris
1989 (3) SA 820
(A)
(
Thalassini Avgi)
at 834F-G;
MV Wisdom C: United
Enterprises Corporation v STX Pan Ocean Co Ltd
[2008]
ZASCA 21
;
2008 (3) SA 585
(SCA) para 16.
[2]
Thalassini Avgi
at
831G-832C.
[3]
De Villiers and Macintosh
The
Law of Agency in South Africa
3 ed (J
M Silke) 237. See also Lawsa Vol 17, part 1 (2 ed) sv ‘Mandate
and Negotiorum Gestio’ para 15; Kerr
Law
of Agency
4 ed (2006) 48 and 157.
[4]
This referred to his wife, who was the sole
member of the close corporation and heavily engaged in the business,
and himself.
[5]
Benoni Produce & Coal Co Ltd v
Gundelfinger
1918 TPD 453
at 459 and
460-461. See also
Jacobs Levitatz and
Braude v Kroonstad Roller Mills
1921
OPD 38.
[6]
De Villiers and Macintosh, op cit, 224.
[7]
Plum v Mazista Ltd
1981
(3) SA 152
(A) at 164A-C.
[8]
Masstores (Pty) Ltd v Pick n Pay Retailers
(Pty) Ltd
[2016] ZACC 42
;
2017 (1) SA
613
(CC);
2017 (2) BCLR 152
(CC) para 3.
[9]
There was no evidence that he had in fact done
this and the only communication referred to in Mr Cilliers’
affidavit was
an email dated 24 August 2017.