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[2019] ZASCA 174
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Kgopana v Matlala (1081/2018) [2019] ZASCA 174 (2 December 2019)
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Not
reportable
Case No: 1081/2018
In
the matter between:
NTSIENI
MORRIS KGOPANA
APPELLANT
and
MOHLAKI
ROSINA MATLALA
RESPONDENT
Neutral
citation:
Kgopana
v Matlala
(1081/2018)
[2019] ZASCA 174
(2 December 2019)
Coram:
Petse
DP and Leach, Wallis, Van der Merwe and Mocumie JJA
Heard:
20
November 2019
Delivered:
2
December 2019
Summary:
Contract –
when concluded – whether WhatsApp message contained an offer
animo
contrahendi
– in both context and content the message did not convey an
offer to contract – doctrine of quasi-mutual assent not
applicable.
ORDER
On appeal from:
Limpopo Division of the
High Court, Polokwane (Makgoba JP sitting as court of first
instance):
1
The appeal is upheld.
2
The order of the court a quo is set aside and replaced with the
following:
‘
The
plaintiff’s claim is dismissed. There is no order as to costs.’
JUDGMENT
Van
der Merwe JA (Petse DP and Leach, Wallis and Mocumie JJA concurring)
[1]
During July 2015, the appellant, Mr Ntsieni Morris Kgopana, enjoyed a
handsome windfall.
He won a prize in the National Lottery
[1]
that amounted to R20 814 582,20. This amount was paid into
his bank account on 29 July 2015. Some six months later, the
appellant sent the following WhatsApp message (the message) to the
respondent, Ms Mohlaki Rosina Matlala, who is the mother of
one of
his seven children:
‘
if I get 20m I can give all my
children 1 m and remain with 13m .I will just stay at home and not
driving up and down looking for
tenders’
[2]
The issue in the appeal is whether the message constituted an offer
animo contrahendi
, that is, an offer which upon acceptance
could give rise to an enforceable contract. After proceeding to
trial, the court a quo
(Makgoba JP in the Limpopo Division of the
High Court, Polokwane) held that it did. He accordingly gave judgment
for the respondent
but granted leave to the appellant to appeal to
this court.
[3]
The romantic relationship between the parties came to an end during
March or April 2003.
On 21 August 2003, however, a child was born to
the respondent of whom the appellant was the father. It can be
accepted that over
the years the appellant had little or no contact
with the child. He did, however, pay maintenance for the child in the
amount of
R1 000 per month, in terms of a consent order granted
by the Mokopane maintenance court under case number 121/2003.
[4]
The appellant was employed by the South African Revenue Service.
Shortly after he
received his bonanza, he made contact with the
respondent. He conveyed to her that his health had deteriorated and
that he could
no longer be employed. He said that he expected that
the pension benefits payable upon the termination of his employment
would
amount to approximately R600 000. He proposed to pay an
amount of R100 000 to the respondent from this source of funds,
in full and final settlement of his duty to maintain the minor child.
[5]
The respondent was agreeable to the proposal. In order to give effect
to their arrangement,
the parties arranged a meeting with the
maintenance officer at the maintenance court. At this meeting the
respondent said she had
heard that the appellant had won R20 million
in the Lotto. The appellant denied this and said that he had only
received payment
of his pension benefits. The maintenance officer
indicated, quite correctly, that the parties could not finally
determine the rights
of the minor child to receive maintenance from
his father. The meeting ended on this note. Nevertheless the
appellant paid the
amount of R100 000 to the respondent for the
benefit of the minor child on 5 January 2016 and did not thereafter
make any
further payments in terms of the maintenance order.
[6]
On 20 January 2016 the respondent again visited the maintenance
officer. According
to the respondent, he told her that the appellant
had indeed won approximately R20,8 million and exhibited bank
statements of the
appellant that reflected the payment.
[2]
This caused the respondent to send a WhatsApp message to the
appellant in which she said that she now knew that he had won R20
million. On
21 January 2016 the appellant responded
with the message I have
mentioned at the outset.
[7]
About seven months later, on 7 September 2016, the respondent issued
summons against
the appellant. Relying on the message, she claimed
payment of R900 000, that is, R1 million less the amount of
R100 000
that had been paid on 5
January 2016. Her particulars
of claim could not be described as a
model of clarity. The appellant accepted, however, that it
encapsulated the case that the
respondent advanced at the trial. This
was that an agreement, in terms of which the appellant was obliged to
pay the amount of
R1 million to her for the benefit of the minor
child, had been concluded when she accepted an offer contained in the
message. The
particulars of claim did not state when and how the
offer was accepted. In response to a leading question, the respondent
said
in evidence that she had accepted the offer by issuing the
summons.
[8]
In his plea, the appellant denied that he had won the prize in the
National Lottery
and denied that he had sent the message. However, he
formally admitted these facts shortly before the commencement of the
trial.
It should be mentioned that the appellant specifically pleaded
in the alternative that he had no
animus
contrahendi
.
The appellant testified that the only reason he had sent the message
was to get rid of the respondent
[3]
and that he had no intention to make an offer to contract.
[9]
The trial court concluded that the content of the message was clear
and unequivocal
and contained an offer that was ‘certain and
definite in its terms’. It held that an offer had been made
‘with
the necessary
animus
contrahendi
’
and that the respondent had ‘readily accepted the offer’.
The court a quo also held that the appellant was contractually
liable
in accordance with the message, even if he might not have intended to
make an offer to contract. This was so, it reasoned
with reference to
cases such as
Spes
Bona Bank Ltd v Portals Water Treatment South Africa (Pty) Ltd
[4]
and
Steyn
v LSA SA Motors Ltd
[5]
,
because the respondent reasonably regarded the message as an offer
that was open to acceptance. For the reasons that follow, I
am unable
to agree with any of these findings.
[10]
The primary basis of contractual liability in our law is true
agreement or
consensus
ad idem
,
in accordance with the will theory. In cases of dissensus contractual
liability may nevertheless be founded on the doctrine of
quasi-mutual
assent, which is based on the reliance theory. In these cases the
first party is contractually bound because he or
she led the second
party, as a reasonable person, to believe that the first party
intended to contract on particular terms.
[6]
[11]
Importantly, true agreement or consensus can generally only be
determined by an examination of
the external manifestations of the
intention of the respective parties. As it is put in
Christie’s
Law of Contract of South Africa
[7]
at 31:
‘
In the result, it is correct to
say that in order to decide whether a contract exists one looks first
for the true agreement of
two or more parties, and because such
agreement can only be revealed by external manifestations one’s
approach must of necessity
be generally objective.’
The author also aptly
explains the application of these principles to the concept of
animus
contrahendi
in these terms:
‘
In this context, the phrase
“lack of
animus
contrahendi
” is
appropriate to describe those cases in which, from the circumstances
or manner in which the “offer” was made,
or both, it is
clear to the court and was, or ought to have been, clear to the
offeree that the offer was not intended to be taken
seriously.’
[8]
[12]
It follows that the question in this case is whether in the context
thereof, the message conveyed
an offer
animo contrahendi
. The
admissible context was that the appellant consistently denied having
won a prize in the National Lottery. The message was
sent in response
to a statement that she knew that he had won the prize.
It
therefore constituted a denial that he had done so. The context thus
strongly suggested that the appellant never intended to agree
to part
with a portion of his winnings. And in its terms, the message related
what the appellant could possibly do in the hypothetical
future event
of him receiving R20 million. It set out what the appellant might do
if he received R20 million. In respect of the
manifestation of the
intention of the respondent it is significant that she never
responded to the message, and did not immediately
claim payment.
[13]
In my view the message clearly did not contain an offer that could on
acceptance thereof be converted
into an enforceable agreement.
Therefore this is also not a case where the offeror’s true
intention differed from his expressed
intention. The appellant
subjectively had no intention to contract and the message did not
suggest otherwise. Thus there was no
room for the application of the
doctrine of quasi-mutual assent.
[14]
It follows that the court a quo should have dismissed the
respondent’s claim and the appeal
should succeed. In the result
this court must determine the incidence of costs in the court a quo
and in this court. The facts
show that the morally reprehensible
conduct of the appellant contributed to the institution of the action
in the interests of the
minor child. And it was not unreasonable of
the respondent to defend the judgment in favour of the minor child on
appeal. A costs
order against the respondent would be detrimental to
the best interests of the child. In the exercise of this court’s
discretion
in respect of costs in the particular circumstances of
this case, I consider it fair and just to make no order as to costs
in the
court a quo and in this court.
[15]
The following order is issued:
1 The appeal is
upheld.
2 The order of the
court a quo is set aside and replaced with the following:
‘
The plaintiff’s
claim is dismissed.
There
is no order as to costs.’
C H G van der Merwe
Judge of Appeal
APPEARANCES
For
Appellant:
A C Diamond
Instructed
by:
Hamman-Moosa Inc, Louis
Trichardt
Eugene Attorneys,
Bloemfontein
For
Respondent:
J Hershensohn, with him C M Rip
(Heads prepared by D M
Leathern SC)
Instructed by:
De Beer Attorneys,
Mokopane
Bezuidenhout Inc,
Bloemfontein
[1]
Established in terms of the
Lotteries
Act 57 of 1997
.
[2]
It was not explained how the
maintenance officer came to be in possession of the bank statements
of the appellant.
[3]
‘
. . . to get her away from
me.’
[4]
Spes Bona Bank Ltd v Portals Water
Treatment South Africa (Pty) Ltd
1983 (1) SA 978
(A); [1983] 1 All SA 375 (A).
[5]
Steyn v LSA SA Motors Ltd
1994 (1) SA 49
(A);
[1994] 1 All SA 483
(A).
[6]
Saambou-Nasionale Bouvereniging v
Friedman
1979 (3) SA 978
(A);
[1979] 2 All SA 71
(A) at 995-996;
Mondorp
Eiendomsagentskap (EDMS) Bpk v Kemp en De Beer
1979
(4) SA 74
(AD) at 78E-G;
Spes
Bona Bank Ltd v Portals Water Treatment South Africa (Pty) Ltd
(fn
4 above) at 984D-G;
Sonap
Petroleum (SA) (Pty) Ltd (formerly known as Sonarep (SA) (Pty) Ltd)
v Pappadogianis
[1992] ZASCA 56
;
1992 (3)
SA 234
(A);
[1992] 2 All SA 114
(A) at 238I-240I;
Steyn
v LSA Motors Ltd
(fn 5
above) at 60J-61J; Hutchinson et al
The
Law of Contract in South Africa
2
ed (2016) at 18-20.
[7]
G B Bradfield
Christie’s
Law of Contract in South Africa
7 ed (2016).
[8]
Ibid at 38.