THE HIGH COURT OF SOUTH AFRICA
(NORTHERN CAPE DIVISION, KIMBERLEY)
Reportable / Not Reportable
Case no: 1745/2018
In the matter between:
PETRUSJOHANNESCRONJE 1st Plaintiff
AMCRON TRADING & LOGISTICS (PTY) LTD 2nd Plaintiff
and
KURU EARTH LOGISTICS CC Defendant
Neutral citation: PJ Cronje and Another v Kuru Earth Logistics CC
(1745/2018) 27 February 2026.
Coram: Lever J.
Heard: 19 June 2024.
Delivered: 27 February 2026.
Summary; Contract - Enforcement - Specific performance - Agreement
subject to suspensive condition - Suspens ive condition not fulfilled - Claim
unsuccessful.
2
ORDER
1. The plaintiffs' claim A and its alternative claim B are dismissed.
2. The first and secon d plaintiff s are jointly and severa lly liable for the
defendant 's taxed or agreed costs. The one paying the other to be absolved.
Such costs are to be taxed on scale B.
JUDGMENT
LeverJ
[1] The plaintiffs in this action instituted a claim against the defe ndant wherein
they claimed for certa in relief in favour of the second plaint iff. The primary
relief, Claim A, was for the defendant to render to the second plaintiff an
account supporte d by the relevant documentation for all transport work the
defendant carried out for the Sedibeng mine ("the mine"), together with an
order to debate such account and certain ancillary relief. Claim B, is
claimed in the alternative to Cla im A, if this Court fails to find the
defendant liable to the second plaintiff for the relief claimed or any part
thereof , then and in that event , the first plaintiff claims identical relief to
that claimed under Claim A to be granted to the first plaintiff under Claim
B.
3
[2] This claim arises from an agreement entered into on 15 March 20 I 7
between one Ne! representing the defendant and one Cronje, the first
plaintiff, who also represented a company yet to be formed at the time,
being the second plaintiff. The agreement is alleged by the plaintiffs to have
been partly written and partly oral. The written portion of the said
agreement is contained in a letter annexed to the Particu lars of Claim as
annexure "A". The said letter is dated 14 March 2017, but the parties agree
that they signed it on 15 March 2017.
[3] The subject of this agreement was for the parties to pursue the possibility
of entering into a contract with the mine to provide the mine with transport
over certain routes for the mine's iron ore.
[4] The substantive part of the said letter reads as follows:
"Vir /\andag: Pieter Cronje
Insake: Sedibeng Iron Ore/Wentzel Vervoer
Geagte Pieter
Ek som die verloop van hierdie transaksie op:
I. Ek Jan Nel die ondergetekene kry die trokke by ene Wentzel Long Haul.
2. Jy Pieter Cro nje kry die werk by Sed ibeng Iron Ore.
3. Wentzel Vervoer kontrakteur direk onder Sedibeng Iron Ore of Kuru Earth
Logistic kontrakteur direk by Sed ibeng Iron Ore.
4. Kuru Earth Logistic gaan 'n kommissie van 'n aard bv RI .00 per ton of rneer.
5. Kuru Earth Logistic faktureer vir Wentzel Long Haul vir die komm issie waama
Kuru Earth Logistic 50% van die komm issie deel metjou Pieter Cronje. Ook kan
dit wees dat Kuru Earth Logistic net Wentzel Long Haul se transport koste moet
uitbetaal.
6. Jy Pieter Cro nj e ko rn so vining m oontlik by 'n auditeur wat vir j o u 'n maat s kappy
of trust kan oprig.
4
7. Jou 50% kommissie is dan betaalbaar aan jou nuwe maatskappy /trust of aan jou
auditeur of aan jou. Maar dit moet so vinig moontlik geskied anders word j y in
jou privaathoedanigheid belas met inkomste belasting ens.
8. Verdermeer sou ek afsterwe dan neem Pieter Cronje die transaksie oor met
Wentzel Long Haul en betaal weer 50% van die wins of kommissie uit aan Kuru
Earth Logistic.
9. Sou die kontrak jaarliks hers ien word kan nie ek of Pieter Cronje uitgesny word
nie. Op voorwaarde ons gebruik nie Wentzel Long Haul en raak dan van horn
ontslae nie.
10. 'n Aanhegsel aan hierdie document of dan aanhegsels moet insluit:
I 0.1. Aanhegsel A: Skrifte like ooreenkoms tussen Kuru Earth Logistic en
Wentzel Long Haul ten opsigte van die kommissie wat gevorder moet word
asook die Rand waarde per ton.
I 0.2. Aanhegsel C: Afskrif van jou instruksie aangaande jou 50% van die
kommiss ie.
I 0.3. Aanhegsel D: Oprigtings dokumente van jou nume maatskappy of trust.
Daarna kan ander Aanhegsels ook aangeheg word om die transaksie so duide lik
moontlik en transpirant te omskryf.
Na hierdie kontrak in plek kom moet beide ek en j y ons testament hersien om
voorseining te maak vir hierdie kont rak.
Onder geen omstandighede is dit 'n vennotskap nie, maar juis 'n
samewerkingsooree nkoms.
Hierdie skrywe is bindend en wettig.
U skriftelike Antwoord en verdere instruksies is te wagte. "
(Provision is then made for the defendant to sign, wh ich he did. Then the following
clause appears:) "By die ondertekening van hierdie document verklaar ek dat ek
toestem en dat ek skriftelik kennis gee indien ek veranderinge wil aanbring. " (Provision
was then made for the first plaintiff to sign, which he did.)
[5] The plaintiff did not plead the oral terms of the agreement per se, but
pleaded inter alia that, the express , alternative ly tac it, further alternatively
implied terms of the agreement included the following:
5
"8.3 The First Plaintiff would introduce the Defendant and the proposed joint
venture , involving First Plaintiff, to the management of Sedibeng in order to
afford the Defendant the opportunity to tender for and or procure one or more
contracts for the rendering of transport services to Sedibeng , for the benefit of
the joint venture."
[6] The above quoted allegedly express, alternatively tacit or, further
alternatively , implied term of the alleged agreement came closest to the
evidence of Cronje on behalf of both plaintiffs as to what the oral term of
the agreement entailed. According to the evidence of Cronje, the oral term
of the agreeme nt was that he would be responsib le for introducing Nel, the
defendant, and the joint venture to the mine management. This was so that
the defendant could bid for transport work from the mine. Cronje further
testified that he had no other dut ies or obligations to the joint venture other
than that introduction.
[7] The defendant in the plea filed on its behalf denies the contention that there
were any oral terms to the said agreement.
[8] It is important to set out how the defendant pleaded to paragraph 8.3 of the
Particulars of Claim quoted above. The plea to the above quoted allegations
reads as follows:
"AD PARAGRAPH 8.3 THEREOF:
6.1 The contents of this paragraph are denied as if each and every averment is
specifically traversed.
6.2 The first plaint iff was obliged to do all the necessary steps to obtain a contract
from Sedibeng , which entails actively assisting the defendant throughout the
whole tender process and being actively involved until an agreement had been
concluded with Sedibeng Iron Ore Mine. "
6
[9] The written portion of the agreement contemp lated a process for certain
written annexures to be added to the agreeme nt in certain circumstances. It
also provided for a process to give written notice of a proposal to amend
the agreement. The written agreement did not express ly exclude oral terms .
This was also not a position taken by the defendant in the pleadings or in
the trial. Accordingly , I will take this issue no further.
[IO] Further, the Particulars of Claim provided that should a contract with the
mine to provide transport be secured , the plaintiff would be entitled to
payment of 50% of the gross commission and/or 50% of the gross profit.
It is clear from the Particulars of Claim and annexure "A" thereof that on
15 March 2017, nobody knew the nature of the relationsh ip that would
eventually be created between the eventua l provider of the trucks for the
required transport and the mine. It is for this reason that the plaintiff claims
either 50% of the gross commiss ion or 50% of the gross profit.
[ 1 I] It follows from this that as at the 15th of March 2017, neither the plaintiffs
nor the defendant knew prec isely what they were dealing with. There were
at least two main possibilities. Firstly, it wou ld be a pure brokerage
agreement if they could secure the work for Wentzel Long Haul (Wentzel)
and if Wentzel contracted directly with the mine. Secondly, if the defendant
contracted with the mine, it would be something different, more akin to
running a transport company. The conseq uences that would flow from each
of these respective possib ilities wou ld be marked ly different , requiring
significantly different management structures and input into the
adm inistration of both the transport and the agreement between Nel and
Cronje.
7
[12] It is evident from the written agreement itself that the parties provided two
mechanisms to cater for the different requirements that would flow from
the different scenarios outlined above. Firstly, the written agreement made
provision for ' annexures ' (presumably agreed addenda) to be added to the
agreement. Secondly, written notice of any desired or required amendment
to the said written agreement.
[13] Clause 9 of annexure "A" to the Particulars of Claim is somewhat
ambiguous regarding the spec ial protection such clause provided applying
to Wentzel. However, both Cronje (first plaintiff) and Ne! (for the
defendant) in their respective evidence agreed that the specia l protection
afforded by clause 9 of the said agreement applied to Wentzel as well. That
being so, a brokerage agreement was clearly what they envisaged and
desired as a first option, although they acknowledged that there were other
possibilities.
[14] The defendant admitted in its plea that an agreement was entered into on
15 March 2017 between the first plaintiff and Ne!, representing the
defendant. The defence raised in the plea was that, whilst there was an
agreement , the joint venture or ' samewerkingsooreenkoms ' would only
come into existence if certain preconditions were met. In other words , the
defendant relied upon a suspensive condition that needed to be fulfilled
before the joint venture or 'samewerkingsooreenkoms' came into
existence.
[15] It was the defendant ' s case that at least one such precondition had not been
met. The suspensive condition that the defendant relied upon in its plea was
that the first plaintiff was obliged , in terms of their agreement, to obtain the
contemplated work from the mine. Apart from the introduction, the
8
defendant's position was that the first plaintiff took no other meaningful
steps to ensure that the joint venture got the work. It is the defendant's
pleaded position that, as a result of the first plaintiffs failure to secure the
work from the mine, the joint venture itself never came into being.
[16] As it happens , the joint venture did not secure the contemplated work from
the mine at that stage. Both Cronje and Nel in their respective evide nce
agreed that at that stage, it seemed as if another entity was awarded the
work at the mine.
[ 17] Turning back to the facts of the matter as they emerged from the trial. Then
after several months and in December of 2017, Mr Nel had a chance
encounter with Mr Pretorius. Mr Pretorius was the transport manager at the
mine that Cronje had introduced him (Nel) to. Ne! and Pretorius greeted
each other. Ne! asked Pretor ius how he was and Pretorius responded not
good as he was struggling with transport at the mine. Ne! responded
jokingly that he should have given the defendant the transport work at the
mine. Pretorius asked Nel to resend the defendant 's company profile to the
mine. Nel contacted Cronje and got Pretorius ' contact number to ensure he
sent the defendant 's profile to the correct email address.
[ 18] Ne! followed up telephon ically with Pretorius who confirmed to Nel that
the mine had received the defendant 's company profile and that he had sent
it on to their Head Office for considerat ion.
[19] Ne! fo llowed up with Pretorius from time to time. Until in February 20 18,
he begged Pretorius for a meeting with Pretorius ' superior. It so happened
that Pretorius had already arranged a meeting with a certain Bhushan
Bhanotha for the follow ing Friday.
9
[20] Ne! then called Cronje and informed him of the meeting that had been
arranged with Bhushan Bhanotha for the coming Friday, and asked Cronje
to join him at that meeting. Cronje told Ne! that he would not join the
meeting as he left Cross more, one of the other transport prov iders to the
mine, under a cloud, and he did not want to jeopardise the obtain ing of the
contract. In fact, Cronje did not attend the meeting with Bhanotha.
[21] Ne] attended the meeting with Bhanotha alone and exp lained to Cronje in
detail what transp ired at the said meeting , as we ll as the proce ss that needed
to be followed to secure the contrac t for the transport required by the mine.
This process included the comp ilation of what has been described as a
'contractors pack ', which would be aud ited by the mine. Nel, in his
evidence, testified that everything had changed after this meeting with
Bhanotha. From the context of his evidence , Ne] was referri ng to the
contemp lated contractua l relationship with the mine.
[22] It was clear that the ' contractors pack ' was a vital part of securing the work
from the mine and convincing the mine that the defendant could do the
work required, and deal with the ancillary responsibilities of work ing on
the mine.
[23] Net testified that on the same Friday that he met with Bhanotha, he started
work on the 'contractors pack ' . Nel's evidence was that he invited Cronje
to assist him in compi ling the required ' contractors pack ', and even offered
him accommodat ion at his home over the weekend so that Cronje cou ld
assist him. Cronje claimed he had other obligatio ns and declined the
invitation to assist Ne! in comp iling the said ' contractors pack '.
(24] When it was completed and submitted to the mine, the 'contractor s pack '
consisted of 5 lever arch files. Ne! testified that it took him between five
and six days to compile , working sixteen hours a day.
(25] Then Ne! testified that he addressed a letter to Cronje dated 1 March 2018.
This letter amounted to a new draft contract , which had many of the same
features as the 15 March 2017 agreement. One of the main differences was
that it now set out particulars of the profit margin the defendant would
make on providi ng transport to the mine. Nel 's evidence was that he sent
the letter of 1 March 2018 because he got a second chance at securing the
contract with the mine. That the who le scenario had changed and that if
Cronje wanted to be involved, they needed to forma lise their agreeme nt to
cater for the new factual situation that existed in regard to the contract with
the mine. In this letter of 1 March 2018, Nel acknowledged that Cronje had
assisted in obtaining the work at the mine. However , the proposed
agreeme nt encompassed by the letter of 1 March 2018 was never signed by
either Nel or Cronje.
(26] It was Nel 's position in his evidence that there was no ' oral' term to the ir
agreement to the effect that all that was required of Cronje was an
introduction to the mine management and nothing more. Nel 's position was
that the 15 March 2017 agreement clearly stipulated that Nel must get the
trucks and Cronje must get the work.
(27] There was evidence that Nel wrote a further letter dated 17 April 2018 to
Cronje. This letter purported to withdraw all offers previously made by Ne l
to Cronje , including the letter of 14 March 2017 (referred to herein as the
15 March 2017 agreement) as well as any offers made in the letter
addressed to Cronje by Nel dated I March 2018. However, this 17 April
11
2018 letter also included an express invitation to Cronje to sit around a
table with Nel to negotiate their respective positions.
[28] Cronje responded to Nel's letter of 17 April 2018 in an email dated 24 April
2018. Then on 24 April 2018, Cronje and Nel met in the Spur restaurant in
Kuruman. In this meeting , Nel explained his position to Cronje, that Cronje
cannot sit on the side and expect 50% of the profit while Nel carried all the
expenses and did all of the work required to maintain the contract with the
mine.
[29] During the said meeting, Cronje did offer to resign from his employment
and come and work for the defendant. They then discussed the financial
position of Cronje, Nel and the defendant. Nel concluded that he could not
afford to employ Cronje and satisfy Cronje's financial obligations and
requirements.
[30] Ne! testified that Cronje visited him weekly and sometimes twice a week,
but he did not help with the work involved in maintaining the contract with
the mine. Nel testified that Cronje cou ld have reconciled the load reports
as well as the diesel reports, but that Cronje wou ld not do so.
[31] There was a reference in Ne!' s evidence to two statutory appointments that
needed to be in place in terms of the relevant (unspecified) legislation and
the contractual requirements of the mine. The one was referred to as a
section 292 appointme nt, responsible for the day-to-day operations on the
mine. According to NeL he wou ld take on this position. The second
statutory appointment would be a section 261 appointment. This would be
the person respons ible for the contract and such person wou ld be required
12
to visit the mine once a week. It was Nel's position that Cronje would have
been able to accept this responsibi lity.
[32] As alluded to above, it is not clear which legislation is being referred to by
Ne!. There was a vague reference to the Mine Health and Safety Act 29 of
1996. However, after consulting such legislation, I found no correspon ding
provisions in the said Act. Nothing turns on this, so for present purposes , I
accept that such statutory regulation applies in circumstances where this
seemed to be accepted by both Ne! and Cronje.
[33] Nel testified that the mine required these two statutory offices to be held
by two different persons. To the best of Nel's knowledge , the statutory
prov isions also required that the said appointments be held by two different
individuals. Ne! testified that the mine started pressuring him to comply
with this requirement. The implication of Nel 's evidence was that he
needed Cronje to take on the "261 appointment".
[34] Ne! testified that for a person to be a "26 1 appointment ", there were two
requirements. Firstly, a prescribed medical examination and secondly, an
induction at the mine. On Nel 's version , he could not get Cronje to commit
to a date for the medical examination or the induction at the mine. Cronje's
version was that he was willing to take on such an appointment but that it
was not that he would not commit to a date, but that Nel never approached
him with a booked date for the medica l examination and the induction.
Cronje further testified that, if Nel needed a weekend off, then he would
also help.
[35] Initially, under cross-examination , Cronje conceded that clauses 1 and 2 of
annexure "A" to the Particu lars of Claim were both precondit ions to the
13
joint venture coming into existence . Later in cross-examination, he tried to
retreat from this position but in reality, he only made his version less
credib le.
[36] Mr Olivier, who appeared for the plaintiffs herein, argued that properly
construed, clause 2 of annexure "A" providing that the first plaintiff would
secure the work for the joint venture, meant that the first plaintiff's only
obligation was to provide the opportun ity for the joint venture to obtain the
work at the mine. In other words , to introduce Nel, the defendant and the
joint venture to the mine and nothing more. Mr Olivier submitted that the
introduction was the sine qua non to the joint venture obtain ing the work.
[37] Accord ingly, the plaintiffs ' contention that either the first or second
plaintiff was entitled to 50% of the gross commission or 50% of the gross
profit rests on two legs. Firstly, Cronje 's assertion for the ' oral' term to the
15 March 2017 agreement that his only obi igation in terms of the said
agreement was to introduce the joint venture to the mine management in
order for his corporate entity (to be formed) or himself to be entitled to
50% of either the commission or the profit. Secondly, Mr Olivier's
submission that, seen in its proper context , clause 2 of the 15 March 2017
agreement meant that Cronje only had to introduce the joint venture to the
mine to be entitled to a 50% share of either the gross commiss ion or the
gross profit.
[38] The legal principles relating to legal interpretation are trite. In Natal Joint
Municipal Pension Fund v Endum eni Municipality, 1 the Supreme Court of
1 20 12 (4) SA 593 (SCA) para 18.
14
Appeal (SCA) set out the approach to the interpretation of inter alia
contracts in the following terms:
"Interpretation is the process of attributing meanin g to the words used in a document,
be it legislation , some other statutory instrument, or contract , having regard to the
context provided by reading the particular provision or provisions in the light of the
document as a whole and the circumstances attendant upon its coming into existence.
Whatever the nature of the document , considerat ion must be given to the language used
in the light of the ordinary rules of grammar and syntax; the context in which the
provision appears; the apparent purpose to which it is directed and the material known
to those responsible for its production. Where more than one meaning is possible each
possibility must be weighed in the light of all these factors. The process is objective,
not subjective. A sensible meaning is to be preferred to one that leads to insensible or
unbusinesslike results or undermines the apparent purpose of the document. Judges
must be alert to, and guard against, the temptation to substitute what they regard as
reasonable, sens ible or businesslike for the words actually used. To do so in regard to a
statute or statutory instrument is to cross the divide between interpretation and
legislation; in a contractual context it is to make a cont ract for the parties other than the
one they in fact made. The ' inevitab le point of departure is the language of the provision
itself , read in context and having regard to the purpose of the provision and the
background to the preparation and production of the document. ''
[39] The SCA in Novartis SA (Pty) Ltd v Maphil Trading (Pty) Ltd2 expatiated
on the interpretation of contracts in part icular and held that:
"l do not understand these judgments to mean that interpretation is a process that takes
into account only the objective mean ing of the words (if that is ascertainable) , and does
into account only the objective mean ing of the words (if that is ascertainable) , and does
not have regard to the contract as a whole or the circumstances in which it was entered
into. This court has consiste ntly held, for many decades , that the interpretative process
is one of ascertaining the intention of the parties- what they meant to achieve. And in
doing that, the court must cons ider all the circumstances surround ing the contract to
2 2016 ( I) SA 518 (SCA) paras 27- 29.
15
detennine what their intention was in concluding it. KPMG, in the passage cited,
explains that parol evidence is inadmissible to modify, vary or add to the written terms
of the agreement, and that it is the role of the court, and not witnesses, to interpret a
document. rt adds, importantly , that there is no real distinction beh,veen background
circumstances and surround ing circumstances, and that a court should always consider
the factual matrix in which the contract is concluded - the context - to determi ne the
parties ' intention.
' ... A court must examine all the facts - the context - in order to detem, ine what the
parties intended. And it must do that whether or not the words of the contract are
ambiguous or lack clarity. Words without context mean nothing .
. . . Whilst the starting point remains the words of the document, which are the only relevant medium
through which the parties have expressed their contractual intentions, the process of interpretation
does not stop at a perceived literal meaning of those words. but considers them in the light of all
relevant and admissible context, including the circumstances in which the document came into being.
The former distinction between permissible background and surrounding circumstances, never very
clear, has fallen away. Interpretation is no longer a process that occurs in stages but is essentially one
unitary exercise."'
[40] Similarly, the law is settled m so far as suspensive conditions are
concerned. The SCA in Mia v Verimark Holdings (Pty) Ltc/3 summar ises
the position as follows:
" ... The conc lusion of a contract subject to a suspensive condition creates 'a very real
and definite contractual relationship' beh¥een the parties. Pending fulfilment of the
suspensive condit ion the exigible content of the contract is suspe nded. On fulfilment of
the condition the contract become s of full force and effect and enforceable by the parties
in accordance with its terms .... lf it is not fulfilled the contract falls away ... "
in accordance with its terms .... lf it is not fulfilled the contract falls away ... "
[ 41] In light of the abovement ioned pri nciples, I tum to the analysis of the
evidence in casu. Annexure "A", being the written portion of the 15 March
3 [20 IO] I All SA 280 (SCA) para I.
16
201 7 agreement, by virtue of its provisions, shows a clear bias or
preference for a pure brokerage arrangement. In other words, that the mine
would contract with Wentzel directly. As already set out above, the said
agreement did foresee other possibilities. It is vitally important to keep in
mind that both Ne! and Cronje foresaw other possibilities to a pure
brokerage agreement. The terms of the said annexure "A" make this plain.
[42] Both contentions put forward by the plaintiffs to support their case, which
have been outlined above, have their own difficulties which overlap to
some extent. Each will be dealt with in tum.
[43] Turning to Mr Olivier's submission that, interpreted in context, what clause
2 of the 15 March 2017 agreement actually means is that all Cronje has to
do is introduce the joint venture to the mine, to be the proximate cause or
sine qua non of the joint venture obtaining the work .
[44] Firstly, that is not what clause 2 of the said agreement says. Secondly, Mr
Olivier 's contention can only be correct if the 15 March 2017 agreement
provided only for a pure brokerage agreement. It is clear from the
provisions of annexure "A" itself that both Cronje and Ne! foresaw that
ensuing agreement with the mine might not be a simple brokerage
agreement.
[45] Whilst the relevant agreement showed a pronounced bias towards a
brokerage agreement between all affected parties, it did foresee other
possibiliti es. In providin g for these other poss ibilities, both Net and Cronje
must have foreseen and accordingly did foresee that their respective inputs
into the contemp lated joint venture would be very different in each of the
different eventual ities they foresaw. Annexure "A" provides two
17
mechani sms to deal with such differences. Firstly, it was envisaged that the
said agreement would be refined by adding annexures ( or agreed addenda)
to such agreeme nt as the circumstances required. Secondly, if an
amendm ent was desired or required , written notice of any proposed
amendment was to be given.
[46] The evidence establishes that the agreement entered into between the
defendant and the mine was -not a simple brokerage agreement .
[47] The above conclusion is supported by the following: The evidence of Nel
who testified that after the meeting with Bhanotha , everything changed;
That the defendant had to compile a ' contractors pack ' to secure the
transport work for the mine; and That the defendant had to take
responsibility for the two statutory appointments described above and as
stipulated by the mine.
[ 48] In all of these circumstances, I cannot accept or uphold Mr Olivier's
argument as to the proper interpretation of clause 2 of the 15 March 2017
agreement.
[49] Turning now to Cronje's contention that there was an additional ' oral' term
to the 15 March 2017 agreement.
[50] Mr Steenkamp, who appeared for the defendant herein, argued that it was
for the plaintiffs to plead and prove the term of the agreemen t that they
relied upon. In this, Mr Steenkamp is undoubtedly correct.4
4 Sec generally Odendaa/ v Odendaa/ 2002 ( I) SA 763 (W) para 2; HSM (Pty) Ltd v Volkswagen Motor Port 1986
(4) SA 22 (C) at 25E- F; Krieg/er v Minit=er and Another 1949 (4) SA 821 (A) at 826-829.
18
[51] The question is, have the plaintiffs established the alleged additional 'ora l'
term of the agreement?
. [52] The alleged 'oral ' tenn is simple enough. On the probabilities, if Nel and
Cronje intended the agreement to l;,e that Cronje 's only responsibility in
obtaining the work was for him to introduce the defendant and/or Net
and/or the joint venture to the .mine, then the written portion of the
agreement would have said precisely that in express terms. The 15 March
2017 agreement encompassed in annexure "A" does not do so.
[53] It is clear from his evidence that Cronje treats the whole transact ion as
comprising a simple brokerage agreement with the mine. This position
adopted by Cronje is not supported by the facts. Firstly, Cronje signed a
written agreement that clearly foresaw the possibility that the final
agreement with the mine might not be a simple brokerage agreement.
[54] In such circumstances, both Cronje and Ne! must have foreseen that the
nature of the inputs required from the joint venture parties ( or partners)
would have been different. As set out above, they did in fact foresee such
possibility and made provision for it in their agreement.
[55] Ne! kept in contact with Cronje prior to and after the meeting Ne! had with
Bhanotha. Cronje knew that after the meeting with Bhanotha, the
' contractors pack ' had to be compiled. This in and of itself showed that the
agreement with the mine was no longer that of a simple transport broker.
[56] The simp le truth is that, the agreement of 15 March 2017 did not deal with
the respect ive duties of Nel and Cronje after the award of a contract to the
joint venture. On the probabilities, the agreement did not express ly provide
19
for the delineation of their respective duties because they did not, as at the
15th .of March 2017, know precisely what would be required of them vis-a
vie the final agreement with the mine. Clearly, the input required from both
Cronje and Nel would have changed depending upon the final nature of the
agreement with the mine. Both Nel and Cronje must have and therefore did
foresee this. As set out above , they in fact made provision to cater for the . • ...
potential of changing circumstanc ·es.
. [57] Cronje made much of the argument that the ·15 March 2017 agreement
provided that it was not in fact a partnership. The relation ship described in
English in the pleadings was that-a 'j.oint venture' was envisaged. In the
Afrikaans agreement , it was described as a 'samewe rkingsooree nkoms'.
Both terms 'joint venture' and a• 'samewerkingsoo reenkoms' envisage a
limited form of partnership .. This argument is therefore not helpful and
leads nowhere.
[58] Mr Steenkamp argued , that the plaintiffs had not established the alleged
'oral' term of the agreement.
[59] The plaintiffs did not plead the ·'oral' term of the agreement per se. In his
email of the 24 April 2018 respond ing to the issues raised by Nel in his
letter dated 17 April 2018, Cronje did not raise the alleged 'oral' term of
the agreement in circumstances where one would ordinaril y have expected
Cronje to do so. His failure to deal with the alleged ' oral' term of the
agreement in such circumstances justifies an adverse inference being
drawn against Cronje on this aspect. It would have been preferable and far
simpler to just record the alleged 'ora l' term of the agreement as part of the
written agreement.
20
[60] The manner in which the plaintiffs pleaded that all Cronje had to do was to
introduce the defendant and the proposed joint venture to the mine as set
out in paragraph 8.3 of th~ Particulars of Claim (quoted above) does not
correspond with Cronje's evidence in his testimony before this Court .
. [61] . lt was Cronje's evidence that Pretorius was the mine's transport manag er,
1• but it became evident from the • evidence placed before this Court that
Cronje knew that Preto rius would not be awarding the contract on his own.
Cronje also testified that he was acquainted.with Bhanotha and one further
senior at the mine. The .facts showed that Bhanotha was instrumental in , •
awarding the transport · contract at the mine. In these circumstances ,
Cronje 's version that all·he had· to do was introduce the defendant and the
joint venture to Pretorius is improbable.
[62] Cronje's own evidence established that he and Ne! had not determined who
would be responsible for the day to day running of the transport venture.
That they had only discussed this in genera l terms. Cronje acknow ledged
that the 15 March 2017 agreement does not deal with this in express terms.
[63] It is also improbable that Nel.would have agreed to Cronje being a silent
partner and sharing in-·50% of the gross commission or gross profit in
circurnstances where Cronje made no capital contribution to the project and
also where Cronje claimed he had no. obligation for any input into the
management of the project. Neils assertion that they would have negotiated
a different basis on which to share the proceeds of the commission or profit,
is, in the circumstances , far more credible. On the probabilities , I have to
accept Nel's assertion on this aspect.
21
. [64] A literal translation of the title given to the agreement in annexure "A" is
an apt description of what was required and what was envisaged by the
agreement encompassed in annexure "A". It was a 'worki ng together
agreement' , but from the facts before this Court, Cronje was not prepared
to work with Nel to ach ieve the aims of their agreement.
[65] Taking all the above factors into: acc0unt; •on the probabilities as they
emerged from the evidence placed-before· this Court, I find that Cronje and
the second plaintiff have not .established the . alleged 'oral' term of the
agreement. Clearly, they bore . -the onus of establishing this term of the
agreement as they relied upon its existe nce·to establish their case.
[66] I have already found that I cannot support Mr Olivier's contention on the
proper interpretation of clause 2 of the 15 March 2017 agreement.
. [ 67] In these circumstances , it must follow from the above conclusion that it has
not been established that the condition precedent that Cronje obtain the
work from the mine for the benefit of the joint venture had come to pass.
Accordingly, the joint venture never came into existence.
[68] In these circumstances, Jhe plaintiffs' claim A and its alternative claim B
stand to be dismissed.
[69] The only remaining issue is the issue of costs. No reason was placed before
this Court as to why costs . should not follow the result. In the
circumstances , the costs will follow the result. The first and second
plaintiffs will be jointly and severa lly liable for the defendant 's party and
party costs. Having regard to the issues pertinent to this matter, I believe it
would be appropriate for costs to be taxed on scale B.
22
(70] Accordingly, the following order is made:
1. The plaintiffs' claim A and its. altemati ve· claim B are dismissed.
2. The first and second plaintiffs-. are jointly and severally liable for the
defendant's taxed or agreed costs. The one paying the other to be
absolved. Such costs are to·be-taxed,0n scale B.
Appearances
For l51 and 2nd Plaintiff s:
Instructed by:
For Defendant:
Instructed by:
I •• •
... '
--L.G. LEVER
JUDGE OF THE HIGH COURT
NORTHERN CAPE DIVISION , KIMBERLEY
Adv AD.Olivier
PGMO Attorneys Inc.
Adv MDJ Steenkamp
Engelsman Magabane Inc.
', .