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[2018] ZASCA 35
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Vincorp (Pty) Ltd v Trust Hungary ZRT (061/2017) [2018] ZASCA 35 (27 March 2018)
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THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case
no: 061/2017
In
the matter between:
VINCORP
(PTY) LTD
APPELLANT
and
TRUST
HUNGARY
ZRT
RESPONDENT
Neutral
citation:
Vincorp (Pty) Ltd v
Trust Hungary ZRT
(061/2017)
[2018]
ZASCA 35
(27 March 2018)
Bench:
Ponnan and Saldulker JJA and Plasket,
Mothle and Schippers AJJA
Heard:
09 March 2018
Delivered:
27 March 2018
Summary:
Contract – formation of –
absence of
animus contrahendi
– whether pleadings and evidence tendered sufficient to justify
reliance on
quasi mutual assent.
ORDER
On
appeal from
:
The
Full Court of the Western Cape High Court, Cape Town (Rogers, Erasmus
and Samela JJ sitting as a court of appeal):
(1)
The appeal is upheld with costs.
(2)
The order of the full court is set aside
and substituted by:
‘
The
appeal is dismissed with costs.’
JUDGMENT
Ponnan
JA (Saldulker JA and Plasket, Mothle and Schippers AJJA concurring):
[1]
Wine barrels, or more accurately, whether or not there were a series
of agreements of sale between the parties in relation to
them, is the
subject of this litigation. The respondent, Trust Hungary ZRT (THR),
as the name suggests, is a Hungarian company
that conducts business
as the manufacturer and supplier of Hungarian oak wine barrels to the
wine industry. Alleging that it had
sold and delivered wine barrels
to the appellant, Vincorp (Pty) Ltd (Vincorp), a South African
company, for which payment remained
outstanding, it caused summons to
be issued out of the Western Cape High Court, Cape Town against the
latter. The trial judge,
Van Staden AJ, dismissed the claim with
costs, but granted leave to THR to appeal to the full court of that
division. The full
court upheld THR’s appeal with costs. It
accordingly set aside the order of the trial judge and replaced it
with one ordering
Vincorp to pay to THR the sum of US $112 526
together with interest as claimed and costs. The further appeal by
Vincorp is with
the special leave of this court.
[2]
THR alleged on the pleadings, which was denied by Vincorp, that:
‘
3.
Since about 2002 Defendant has been ordering and purchasing wine
barrels from Plaintiff
in terms of written purchase orders at
Plaintiff’s usual prices from time to time, and Plaintiff has
been selling the wine
barrels ordered by Defendant to Defendant
accordingly.
4.
During December 2008 and 2009 Defendant
inter alia
ordered and
purchased wine barrels from Plaintiff for a total purchase price of
US $146,850.00 in terms of written purchase orders.
Copies of these
written purchase orders are annexed hereto, marked ‟A1”
to ‟A33”.
5.
In terms of these purchase orders, which were accepted by the
Plaintiff and in
terms whereof Plaintiff sold the wine barrels
referred to in paragraph 4 above to Defendant, Defendant was obliged
to pay Plaintiff
the total amount of each order within 90 days from
date of loading. Details of these purchases are as follows:
.
. .
6.
All these oak barrels were duly loaded and delivered by or on behalf
of Plaintiff
to Defendant or its duly authorised agents.
7.
Defendant has failed and/or refused to pay to Plaintiff the purchase
price of
the wine barrels purchased by it in terms of Annexures ‟A1”
to ‟A33” hereto, as it is legally obliged to
do.
9.
In the premises, Defendant is liable to pay Plaintiff the sum of US
$146,850.00
which remains due, owing and payable, but despite demand,
Defendant has to date failed and/or refused to pay the said amount or
any portion thereof.’
[3]
Each of annexures A1 to A33 to the particulars of claim was described
as a ‘purchase order and confirmation’. The
following is
a fair reproduction of Annexure 1.
NB:
PLEASE CONSULT PDF FOR IMAGES
Save
for differences relating to the respective customer in each instance,
the other 32 annexures, were for the most part, identical
in form to
Annexure 1.
[4]
In dismissing THR’s claim, Van Staden AJ held:
‘
52.
I agree with counsel for Vincorp that the Trust has not succeeded in
showing that there was
animus
contrahendi
to enter into an agreement of purchase and sale on the part of VinCo.
In my view the parties were at cross-purposes - Molnar was
convinced
that Vincorp is the purchaser of the barrels, whereas Vincorp only
intended to render logistical services. The fact that
Vincorp had no
intention to purchase is also supported by the following:
52.1
Vincorp categorically stated in the letter of 28 August 2002 that it
was only rendering logistical
services and would make no payments to
the Trust unless payment was received from Vinco. The letter of 28
August 2002, delivered
to Pretorius of VinCo, obviously supports
Vincorp’s version.
52.2
The change in the purchase orders in Feburary 2002.
52.3
Vincorp came on the scene when the relationship between the Trust and
VinCo had already been established.
52.4
VinCo placed all the orders with the Trust.
52.5
There was no evidence that Vincorp dealt with the Trust for any other
reason but to render logistical
services.
53
In all the circumstances I conclude that the Trust has not discharged
the
onus
of showing that Vincorp ever had the intention to purchase the
barrels in question.’ (Footnotes omitted.)
[5]
Having reached that conclusion, the learned judge then added:
‘
54
As stated above the Trust did not file a replication and did not rely
on either estoppel
or
quasi-mutual
assent
in the pleadings. A party raising
quasi-mutual
assent
as a defence should also plead and prove it.
55
The Trust has not pleaded or proved
estoppel
or
quasi-mutual
assent
and it is irrelevant. However, in my view, it is clear
that the Trust and Vincorp were at cross-purposes. There was a mutual
mistake
and both parties were mistaken about the other’s state
of mind. In such circumstances parties can often rely on the said
doctrine or on
estoppel
. I therefore considered
estoppel
and
quasi-mutual assent
in the matter under consideration.
56
To rely on the doctrine of
quasi-mutual
assent
the understanding of what 0has been agreed of one party must be
reasonable as oppose[d] to that of the other party being
unreasonable.
In respect of
estoppel
it must be shown that the other party made a negligent
representation.
57
In my view, had the Trust pleaded
estoppel
or
quasi-mutual
assent
it would have been to no avail. There is no question of
the Trust having proved the requirements of
estoppel
. In order
to rely on the doctrine of
quasi-mutual assent
, the
understanding of what has been agreed of one of the parties must be
reasonable, as opposed to that of the other that must
be
unreasonable. There are probabilities favouring the version of both
parties, but not to such an extent that it can be said that
one
version is reasonable as opposed to the other being unreasonable.
58
The Trust could therefore not have successfully raised estoppel or
quasi-mutual
assent
.’
(Footnotes omitted.)
[6]
In upholding THR’s appeal, the full court (per Rogers J, with
whom Erasmus J and Samela J concurred) reasoned:
‘
[36]
It has long been accepted in our law that a person cannot escape from
an apparent agreement merely
because his subjective intention
differed from the apparent agreement. This is known as the doctrine
of quasi-mutual assent. In
Sonap
Petroleum (SA) (Pty) Ltd v Pappadogianis
1992 (3) SA 324
(A) at 239F-240B the court said that in various
earlier decisions our courts had adapted, for purposes of the facts
of their respective
cases, the well-known dictum of Blackburn J in
Smith
v Hughes
(1871) LR 6 QB 597
at 607
‟
If,
whatever a man’s real intention may be, he so conducts himself
that a reasonable man would believe that he was assenting
to the
terms proposed by the other party, and that other party upon the
belief enters into the contract with him, the man thus
conducting
himself would be equally bound as if he had intended to agree to the
other party’s terms”.
See
also, for example,
Pillay & Another v Shaik & Others
2009 (4) SA 74
(SCA) paras 55-60; and see Christie
The Law of
Contract in South Africa
6
th
Ed at 10-12; 24-30.
[37]
Although this doctrine may have its roots in estoppel, it appears now
to have an independent
existence (Christie op cit 28-30), expressing
the essentially objective nature of the enquiry into whether there is
consensus,
namely that the law does not concern itself with the
working of the minds of the parties to a contract but with the
external manifestations
of their minds (see
SAR & H v National
Bank of SA Ltd
1924 AD 704
at 715;
Makata v Vodacom (Pty)
Ltd
2016 (4) SA
121
(CC) paras 72-73 per the majority and para 157 per the minority).
The learned trial judge erred, in my respectful view, in stating
that
a party raising quasi-mutual assent must plead it.
[38]
The external manifestations of the parties’ conduct over the
period 2002-2009 was such that a reasonable person would
have
understood there to be consensus between them that Vincorp was
buying barrels from THR in accordance with orders placed by
the
former and invoices issued by the latter. This is how commercial
documents of this kind would normally be understood.
[39]
If both parties to a supposed contract subjectively know that the
external manifestations of
their conduct are not to be taken at face
value the court will naturally not insist that there is a contract
contrary to their
actual state of mind (see Christie op cit 25). But
the evidence and documentation to which I have referred satisfy me
that THR
subjectively understood the external manifestations of the
interactions between itself and Vincorp in a manner consistent with
its pleaded case, namely a series of sale agreements in accordance
with Vincorp’s orders. The trial judge found that this
was
Molnar’s sincere belief but that THR and Vincorp were ‟at
cross-purposes”.’
[7]
In
Sonap Petroleum (SA) (Pty) Ltd v Pappadogianis
1992 (3) SA
324
(A) at 239I-240B, after referring to the leading cases and
academic writings on the topic, Harms AJA concluded:
‘
In
my view, therefore, the decisive question in a case like the present
is this: did the party whose actual intention did not conform
to the
common intention expressed, lead the other party, as a reasonable
man, to believe that his declared intention represented
his actual
intention? . . . . To answer this
question, a three-fold enquiry is usually necessary,
namely, firstly,
was there a misrepresentation as to one party’s intention;
secondly, who made that representation; and thirdly,
was the other
party misled thereby? . . . . The last question postulates two
possibilities: Was he actually misled and would a
reasonable man have
been misled?’
[8]
Undertaking the enquiry postulated by Harms AJA, requires an
exposition in some detail of the background facts. Those facts
appear
from the correspondence exchanged between the parties and the
evidence of the
dramatis personae.
Events commenced in 2001
when, with a view to expanding its business into South Africa, THR
ran a series of advertisements in local
wine journals and magazines
‘seeking individuals
who
might be interested in representing its products’ locally. By
‘representing’, so testified Mr James Molnar,
the
managing director of THR, it was envisaged that those individuals
would act in ‘a sales capacity’.
[9]
One such advertisement piqued the interest of Mr Mihan Pretorius who,
on 31 August 2001, despatched the following email to THR:
‘
Regarding
the advertisement . . . I am addressing this letter to you on behalf
of my corporation VinCo.
.
. . .
VinCo
has the necessary infrastructure, management and skilled (coopers)
labour for the marketing, distribution and after sale service
of wine
barrels.
I
see this as a[n] excellent opportunity to market ‟TRUST”
in South Africa. As such, I would like to engage in conversation
with
you if we are in principle and in broad terms in agreement that such
an arrangement could be mutually beneficial. I am also
prepared to
visit your establishment in Hungary, hence your reaction on this
letter.’
[10]
Mr Pretorius thereafter travelled to Hungary, where he met Mr Molnar
and inspected THR’s facilities. He testified:
‘
In
2001. Wat – met u terugkeer na Suid-Afrika, was daar enige
verstandhouding wat u bereik het met mnr Molnar en Trust Hungary?
---
Ja, die verstandhouding was dat ek die vate, of sy produk sal bemark
in Suid-Afrika. Op daai stadium het hy voorgestel dat
daar nóg
'n agentskap belang stel om dit te doen, en voorgestel dat ons dit
dalk saam moet doen. Ek het dit van die hand
gewys, en hy het
ingestem, en ons het dan nou besluit dat ek dit alleen sal doen, of
my maatskappy dit alleen sal doen, die bemarking
…
(tussenbeide)
Sou
Vin Co. alleen in Suid-Afrika die reg hê … (tussenbeide)
--- Alleenagentskap het, ja (onduidelik) ja … (tussenbeide)
Alleenagentskap
vir Trust Hungary se vate. --- Presies.’
[11]
On his return to South Africa, Mr Pretorius emailed Mr Molnar on 21
January 2002:
‘
My
wish is that our friendship and business relationship will grow this
year.
.
. . .
.
. . I want to thank you for your trust in me – you won't be
disappointed.
As
mentioned earlier, the time frame to introduce ‘TRUST’ to
the South African market is very unfavourable, but I am
happy with
our progress under the circumstances below.
.
. . .
Except
for one or two winemakers, most of the winemakers are very interested
and curious about ‘TRUST’ barrels and would
like to have
some trial barrels for next year. Luckily, most of the big wineries
ordered some barrels – I will send you my
list of orders late
afternoon or early tomorrow.
It
is a privilege to be associated with ‟Trust”.
.
. .
PS.
For
payment purposes, I will work through a company called VINCORP. They
are a financing company and specialize in financing wine
barrels.
Please
forward me your bank details and method of payment.’
[12]
On 31 January 2002 Ms Barbara Kerner of THR despatched a ‘proforma
invoice’ to Mr Pretorius. She invited him to
‘[c]heck it
and please advise if everything is OK or do you need any
modifications.’ In material part the ‘proforma
invoice’ read:
Vevõ
/ Sold To:
Shipped
to:
Final
destination:
VinCo
SST C/O Rohling France
VinCo
.
.
.
. . .
Contact
person: Mihan Pretorius
Contact: Mihan Pretorius
[13]
During March 2002 Mr Molnar invited Mr Pretorius and some other wine
makers to visit Hungary to attend ‘THR’s 10
th
anniversary and open house in Hungary’. On 6 July 2002 Mr
Pretorius reported to Mr Molnar that barrel sales were going well
in
South Africa. He added:
‘
I
have been very busy seeing winemakers lately. I am seeing about 2 to
4 new clients on average per day. I will send you a full
report on
sales for June and July later.
A
question that comes up frequently is “what kind of variety does
our barrel compliments the best ?” – please
advise!’
Mr
Molnar replied the next day ‘all varieties work well in our
barrels’. He then proceeded to advise Mr Pretorius as
to how
best the barrels could be used for optimum fermentation and aging of
both white and red wines. Mr Molnar also informed Mr
Pretorius that
he planned to visit Cape Town from ‘Tuesday Sept. 10
th
and stay until Saturday the 14
th
’.
He added ‘I hope these dates work for you so we can tackle
clients together’. Under cover of a separate email
on the same
day Mr Molnar sentMr Pretorius ‘a complete price list as
discussed in Hungary’. Mr Molnar did indeed visit
South Africa,
not in September as previously intimated, but during October of that
year.
[14]
On 28 August 2002 Vincorp wrote to Vinco setting out their terms of
service. The letter read:
‘
Dit
is belangrik om daarop te let dat Vincorp geen betalings sal maak aan
die vervaardigers alvorens ons nie die fondse vanaf VinCo
ontvang het
nie. Ons behartig slegs die logistieke
funksie
en neem ook geen verantwoordelikheid vir die kwaliteit of vakmanskap
van die vate nie. Indien enige van VinCo se kliënte
finansiering
sou verlang, is Vincorp se huuropsie beskikbaar. Ons sal egter elke
geval op sy eie meriete evalueer in terme van
ons kredietbeleid.’
[15]
On 9 October 2002 Mr Pretorius wrote to Mr Molnar that ‘dealing
through Vincorp will be the best option and will be for
mutual
benefit to Trust and VinCo’. He attached a letter from Vincorp
to his email. The attachment on a Vincorp letterhead,
under the hand
of its logistics clerk, Ms Ilse Liebenberg, read:
‘
We
do the procurement and financing of oak barrels in the South African
wine industry. Vincorp has been in operation for the past
3 years and
has procured and financed +/- 50 % of all new barrels for the South
African market during the previous season. We have
longstanding
relationships with all the large French cooperages and deal directly
with them on a daily basis. They prefer to deal
with Vincorp because
once we have made the credit decision they are ensured of payment. It
is important to note that we are not
barrel agents, we only do the
procurement and financing of the barrels. Due to our well established
infrastructure and the related
cost savings for our client, we
generally prefer to deal directly with the foreign cooperages. We
offer a one stop service that
includes, order of barrels, procurement
and logistics, forward cover, financing and away payment of foreign
amounts.
Please
confirm the payment terms. We normally order exw and payment is due
60 days after bill of lading.’
[16]
On 4 November 2002 Mr Molnar wrote to Mr Pretorius:
‘
Thank
you for getting back to me regarding Laborie. Shipping costs from
Szigetvar to Cape Town with my freight company Kuhne and
Nagel are as
follows:
Price
is US$4326.00 transit time from Germany is 16 days, this is for a 40
foot High Cube Container.
I
would add one week to get to Germany and customs clearing time in
Cape Town.
If
you do not wish for us to arrange the container let me know,
otherwise I will for December 4
th
most likely.’
Mr
Pretorius replied the next day:
‘
Thanks,
but Vincorp will arrange the transport through shipping agent;
Rohlig. This is part of Vincorp’s contract with me.
What I
still need from you is the amount of barrels a 20ft, 40ft & 40ft
HC can take for the 225L and 300L ranges.’
[17]
On 13 February 2003 THR informed Mr Pretorius that the barrels that
he had ordered were ready for loading. Mr Pretorius reiterated:
‘The
company in South Africa that is handling my logistics and forward
payments are Vincorp’. He went on to supply
Ms Liebenberg's
details as the contact person. Mr Molnar, in his evidence in chief,
stated that he had been aware of this email.
Later that year, during
August, THR furnished Mr Pretorius with new order forms and guidance
as to how he could more easily complete
them.
[18]
On 28 October 2003 Mr Pretorius wrote to Mr Molnar:
‘
It
is barrel order time again in South Africa and I am running around
like a mad dog.
With
reference to my experience from the previous season, I want to ask
you to extend my payment terms from 60 days to 90 days after
loading
date: Below, the reasons for my request:
.
. .
It
is very important for me to pay you on time, every time, but with my
growing market it will become more and more difficult.’
Mr
Molnar acceded to Mr Pretorius’ request in an email to the
latter on 31 October 2003.
[19]
Early in 2004, according to Vincorp, its bankers began to experience
difficulty with the payment of THR’s invoices. Apparently,
so
Vincorp was informed, the difficulty lay in obtaining approval from
National Treasury for the expatriation of funds to meet
THR’s
invoices, which had been issued in the name of Vinco, not Vincorp. In
that regard Mr Paul Haumann, the financial director
of Vincorp,
testified:
‘
Mnr
Haumann, net voor die verdaging het ek u geneem na bladsy 37, na
daardie epos wat Mihan Pretorius gestuur het oor vorige veranderinge
of fakture. Weet u waaroor dit gegaan het? --- Ja, baie van die
invoices wat ons van Trust ontvang het nog op daardie stadium het
vir
Vin Co aangeteken, het Vin Co se details op gehad as die koper.
As
die koper? --- Ja en ons het probleme begin ondervind by die bank om
die betaling te doen. Ek dink die name Vincorp en Vin Co
is baie naby
aan mekaar, maar hulle het dit opgetel dat dit Vin Co nie Vincorp is
nie en ek moes … (tussenbeied)
Kan
ek u net vra? --- Ja.
Tot
in daardie stadium het van die betalings deurgegaan terwyl die
faktuur van Trust Hungary Vin Co aangetoon het as die koper.
--- Ja,
van dit het deur gegaan.
Goed.
--- En toe het die bank vir ons gesê hoor hierso die invoices
stem nie ooreen nie. Sal julle asseblief sorg dat die
invoices moet
ooreenstem met die bill of lading, die bill of entry en die customs,
klaringsdokument anders kan ons nie die betaling
doen nie.
Uit
… (tussenbeide) --- Uit ons euro rekening uit.
Uit
Vincorp se euro rekening. --- Ja. So dit was 'n spesifieke versoek
van ons kant af dat hulle asseblief Vincorp details vir
administratiewe doeleindes op die invoice sit sodat ons die
buitelandse betaling kan doen.
Goed.
--- Namens Vin Co.
Goed.
En aan u het u daardie versoek oorgedra? U sien nou die epos hier
onder. --- Ek het vir mnr Pretorius gevra of vir Trust te
vra.’
[20]
Later, under cross examination, Mr Haumann’s evidence went
thus:
‘
Voor
daardie punt, dis nou hier op 29 Januarie 2004, was daar enige
probleme met die fakture terwyl dit uigemaak is aan Vin Co.
sodat u
nie betaling kon maak? --- Die bank het dit laat deurgaan, en toe ewe
skielik het hulle vir ons laat weet dat weet, daardie
Vin Co. stem
nie ooreen met Vincorp op die invoer dokumentasie nie, en hulle kan
nie die betaling laat deurgaan nie.’
On
this aspect of the case, Mr Pretorius testified:
Korrek.
Weet u waarom daar dan nou toe gevra is dat die fakture uitgemaak
word aan Vincorp? --- Dit is op versoek [van] Vincorp
gewees, bloot
oor logistieke redes en administratiewe redes in terme van – ek
dink dit was die Reserwe Bank, of ook vir die
klaring van die vate
deur die hawe by doeane, ensovoorts.
Goed.
Maar voordat daardie fakture nou op versoek van Vincorp verander
word, het – sê u dis uitgemaak aan Vin Co. En
wie is
aangetoon as die koper op daardie fakture wat aan Vin Co. uitgemaak …
(tussebeide) --- Wel, Vin Co. sou aangetoon
word as die koper, ja.
Dis
nou fakture wat Vin Co. ontvang van Trust Hungary. --- Presies, soos
die eerste ene.’
[21]
On 2 February 2004 Mr Pretorius did indeed request THR to replace
Vinco with Vincorp on the documentation, but stressed that
Vincorp
‘acts as financing company and importing agent on behalf of
VinCo (my company)’. In reply he was informed:
‘
I
have transmitted your ask to the accounts but I’m very sorry
they said this time is unable to change the invoices to your
new
address.
All
we doing can is to do the new address on the invoices to your next
shipment. I hope you understand this and don’t be angry.’
Thereafter,
THR’s invoices were altered to accord with Mr Pretorius’
request and things appear to have proceeded smoothly,
so much so that
by December 2007, Mr Pretorius complained to THR that Vincorp ‘is
processing my orders to[o] slow’.
[22]
From the end of 2008 through to 2009 a series of orders were placed
with THR. Those form the subject of the present litigation.
Each was
under cover of a VinCo letterhead. It was addressed to Ms Annamária
Ruppert of THR and read:
‘
Dear
Ami
Attached,
order for [the name of the cellar]’.
Best
wishes,
Mihan’
Mr
Pretorius also on occasion issued specific instructions to Ms Ruppert
in respect of company branding on the barrels as per the
request of
particular wineries. The order confirmation from THR bore inter alia
the following information:
Bill
to / Számlázási Cím:
Ship To /
Szállítási hely:
Vicorp
PTY Ltd.
VinCo CC
.
. .
. . .
Customer
ID / Vevõ adatai:
VinCo.
Mihan Pretorius
[23]
When payment for those orders did not eventuate as anticipated, Ms
Laura Kope of THR emailed Mr Paul Haumann on 24 November
2009:
‘
I'm
writing on behalf of Trust Hungary. They have notified us that
Vincorp has a balance of US$112,726 and I'd like to inquire about
the
payment.
Can
you please let us know how soon Vincorp can arrange to pay the
balance?’
In
answer, Mr Haumann wrote:
‘
You
must contact your agent in South Africa, Mr Mihan Pretorius. We only
did the logistics on your behalf – which Trust is
aware of. The
relationship with Trust has always been that we only settle once your
agent has paid us – this has always been
the case in the past.’
To
which Ms Kope replied:
‘
Yes,
I was aware of the arrangements, but since I noticed the last payment
Trust Hungary received was a month ago, I just wanted
to see if there
was any chance of them receiving another payment anytime soon.
Do
you have any info based on your correspondences with Mihan?’
[24]
On 1 December 2009 Mr Molnar addressed the following email to Mr
Haumann:
‘
I
have not had the opportunity to meet you but I did deal extensively
with Ilse Liebenberg. Over the past 6 years VinCorp has made
their
payments for barrels from Trust Hungary. This year the payment has
not been made. We have reviewed the orders placed by and
through
VinCorp. Numerous emails confirm this relationship, not to mention
the practice of the past 6 years. VinCorp did in fact
import these
barrels and order these barrels. If you require a payment plan I am
likely able to accommodate you, alternatively
please remit payment in
full.
Please
do not hesitate to contact me with any questions.’
Mr
Andre Viljoen, the Managing Director of Vincorp, replied:
‘
Thank
you for your email sent today 1 December 2009. I wish to refer to the
correspondence between Mr Paul Haumann and your Ms Laura
Kope of
Trust International Corp. and attach the email for your attention.
We
do not intend to answer your mail in great detail or to react to each
averment you have made. Our failure to do so must however
not be seen
as an admission of any allegation nor as an admission in any form.
Our right to react more fully at a later stage is
reserved.
I
wish to make it clear that Vincorp has never acted as an agent or
re-seller of Trust barrels in South Africa, which is apparent
from
the work method that we adapted and was confirmed by your Ms Kope.
The only reason why Vincorp ordered the barrels on behalf
of Mr
Pretorius was to comply with South African statutory requirements
applicable to importers - the details of which I am sure
you are
aware. The transactions were structured in this fashion for the sake
of the system and not because it created a Seller/Buyer
relationship
between our companies.
The
work method over the past six years confirms this state of affairs.
The method clearly shows and supports our position that
we are merely
an intermediary. Vincorp only pays when your Mr Pretorius, as your
agent, receives money from your clients in South
Africa and pays to
us. We do the administration and logistics on behalf of and at the
request of Mr Pretorius. We render this service
to numerous
cooperages and the work method is exactly the same. I believe that it
is disingenuous of you to attempt to hold Vincorp
responsible in
circumstances where there is non-performance or lack of cooperation
by Mr Pretorius.
Vincorp
will endeavour to assist you in this matter as far as it is within
our power to influence Mr Pretorius.
If we can
assist in other ways we are more than willing to do so.
We
trust the matter will be speedily resolved.’
[25]
Impasse having been reached, THR caused summons to be issued against
Vincorp. The
onus
was on THR to prove the contract on which it relied. Proof of the
terms of the contract included proof of the anterior question,
namely
whether both parties had the requisite
animus
contrahendi
.
[1]
The pleadings tend to obfuscate rather than clarify the true issues
in the case. THR pleaded that since 2002 Vincorp had ordered
and
purchased barrels from THR. It then specifically pleaded that during
December 2008 and 2009 Vincorp ordered and purchased barrels
from THR
in terms of written purchase orders that were accepted by THR.
Consequently, according to the particulars of claim, the
written
purchase orders constituted the agreement between the parties. No
other underlying agreement was pleaded. Apart from the
fact that
those purchase orders do not specifically reflect Vincorp as the
purchaser, they had been despatched to THR by VinCo,
not Vincorp. The
letter dated 28 August 2002 from Vincorp to VinCo defined the
relationship between them. Vincorp there stated
that it was only
rendering logistical services and would make no payments to THR
unless payment was received from VinCo.
[26]
Vincorp only came onto the scene after the relationship between VinCo
and THR had already been established. VinCo placed the
orders with
THR. From 2002 to 2004, invoices were made out by THR to VinCo, not
Vincorp. It was only when Vincorp’s bank
experienced difficulty
with the expatriation of funds that, at Mr Pretorius’ request,
a change to the invoices came to be
effected. However, that was for
that rather limited purpose and in no way served to alter the
relationship between the parties.
The mere fact that Vincorp came to
be reflected as the purchaser or importer on some of the documents
(for the purposes of expatriating
funds from Vincorp’s Euro
bank account as part of its logistical services to VinCo) in itself
did not herald any new legal
relationship between it and THR. Other
than in the execution of the logistical services, Vincorp did not
deal with THR. In any
event whilst those documents may otherwise have
been a telling indicator in THR’s favour, they have to be
counterbalanced
by the evidence that they were produced for a
specific limited purpose. That evidence is credible. There is no
counter to it.
[27]
Moreover, it was never Mr Molnar’s case that THR understood the
external manifestations of the interaction between it
and Vincorp as
a series of sale agreements in accordance with the latter’s
orders. In his evidence, Mr Molnar alluded to
a meeting with Ms
Liebenerg during October 2002. His evidence on that score was:
‘
Well,
Ms Liebenberg, for lack of a simpler word to put it, was really
trying to sell me on the merits of doing business with Vincorp.
She
said that they understand the South African more in business and
therefore are in a position to guarantee payment for the barrels
that
go through them. And she said this is a service they offer to many
cooperages because this is their primary business model.
In addition
to that she says they have some logistics capabilities which they
like to handle if they work with you as a cooperage.
I said: well,
you know, we normally have our own freight companies and we did refer
her to ours but we understand that they had
a relationship with a
company called Röhlig. We were comfortable with that. She kept
explaining to me that they will handle
everything and the upside of
working with them is we’re ensured of payment.
They
were also rendering other services such as custom clearance and
associated services. --- Yes, they offered things that didn't
always
apply to me but things like forward cover; fluctuations in the rand.
They also provided financing, of course, that being
their main
business, to wineries here. And, of course, they handled the customs
and shipping from other areas as well.
Now,
in what capacity would they render these services and would they make
payment to you? --- They would be acting in a distributor-like
capacity, the buyer.
The
buyer would be from you? --- They would be buying my barrels from me,
yes.’
Mr
Molnar sought to elevate this to the foundation for some sort of
underlying agreement between THR and Vincorp. On this footing,
Mr
Molnar said that THR’s intention was to accept what they
believed to be an offer by Vincorp. However, that was never pleaded
.
The trial court found that Mr
Molnar’s version regarding his interaction with Ms Liebenberg
during 2002 is improbable. And,
what is more, Ms Liebenberg was a
logistics clerk who had no authority to bind Vincorp.
[28]
Much was also sought to be made of the letter written by Ms
Liebenberg to THR on 7 October 2002. Irrespective of what had gone
before, so I understood counsel to submit from the bar in this court,
that letter, was the genesis of a new contractual relationship
between the parties. First, that letter does not constitute an offer.
Nor, was it intended by Vincorp to be an offer. The evidence
in this
regard on behalf of Vincorp is explicit. Second, that letter must be
seen against the backdrop of the relationship between
the parties
since inception, which I have attempted to sketch in far greater
detail than might otherwise have been necessary. Third,
the full
court appears to have accepted that Ms Liebenberg was not authorised
to write the letter but nonetheless, somewhat contradictorily,
was
willing to hold the content of the letter against Vincorp on the
basis that ‘nobody had suggested that what she said
about
Vincorp was factually incorrect’. Fourth, it is difficult to
discern the precise nature of the new legal relationship
sought to be
asserted by THR. In argument it was suggested that the letter
signalled that Vincorp would replace Mr Pretorius as
purchaser. That,
however, is incompatible with the suggestion in Mr Molnar’s
evidence that Vincorp was in effect the guarantor
of payment.
Plainly, it is logically incompatible for Vincorp to have been both
purchaser and guarantor at the same time. What
detracts from the
assertion that Vincorp’s role had changed to that of purchaser
(or at the very least had become liable
for payment) is Mr Pretorius’
request to THR for an extension of payment terms from 60 to 90 days.
That request was made
on 28 October 2003, approximately one year
after the letter which supposedly altered Vincorp’s status
(from whatever it may
previously have been) to that of purchaser.
[29]
From 2001 Messrs Molnar and Pretorius regularly communicated with
each other. They met in Hungary and South Africa. When Mr
Molnar
visited South Africa, they visited clients together. Mr Pretorius
even took clients to Hungary where they visited THR’s
business
and met with Mr Molnar. Vincorp was never part of this interaction.
Before the first order placed by VinCo, Mr Pretorius
informed Molnar
in January 2002 that for payment purposes VinCo would work through
Vincorp. From the first supply of barrels by
THR, for which it
invoiced VinCo as the purchaser, payments were made by VinCo through
Vincorp. From 2002 until 2004 THR invoiced
VinCo. This only changed
to meet the requirements of Vincorp’s bank. Even then in an
email dated 2 February 2004, Pretorius
reminded Molnar that Vincorp
was acting as VinCo’s importing agent. On 5 November 2002,
VinCo informed Molnar in an email
that, as ‘part of Vincorp’s
contract with’ it, the latter would arrange transport. It was a
reference to the
agreement as per the letter of 28 August 2002. Mr
Molnar did not query the reference to a contract between VinCo and
Vincorp. On
13 February 2003, VinCo informed THR in an email that
Vincorp was the company in South Africa handling VinCo’s
logistics
and forward payments. Payment terms were agreed between THR
and VinCo. Written orders were sent to THR by VinCo. THR then
confirmed
those orders to VinCo and inserted the name of VinCo and/or
Pretorius under the words ‘Customer ID’. THR initially
addressed VinCo, not Vincorp, in respect of late payment.
[30]
To the aforementioned considerations falls to be added the exchange
of emails between Ms Kope and Mr Haumann. In them, Ms Kope
had
signified her awareness of ‘the arrangements’, namely
that ‘Vincorp only did the logistics’ which,
as she put
it, ‘Trust is aware of’. The full court accepted Ms
Kope’s evidence that ‘she was definitely
not aware of the
financial arrangements and her statement ‘that she was aware of
the arrangements was an “overstatement”
of what she
knew’. It described her email as ‘an unguarded email’.
In that, the full court may have been far
too charitable to Ms Kope.
Those emails do not represent the sum total of Ms Kope’s
involvement in the matter. She penned
other emails as well. By way of
example on 28 January 2008 Ms Kope wrote to Mr Pretorius ‘Dear
Mihan, Please find attached
our invoice’. Later that day she
wrote: ‘I am showing Rohlig on the purchaser order. Mihan, can
you please confirm
if Rohlig is arranging the shipping?’
The next day, in excess of five years from the date when Vincorp is
alleged to
have stepped into Mr Pretorius’ shoes as purchaser,
she wrote to Mr Pretorius: ‘Hi Mihan Can you let me know when
we
can expect payment for the two outstanding invoices from 2005? . .
. Please arrange payment ASAP!!!. Not only do these emails belie
her
assertion that her response to Mr Haumann was a ‘bad choice of
words’, but they also afford material corroboration
for
Vincorp’s case that THR was never under any misapprehension as
to the true relationship between the parties.
[31]
In view of the fact that the documents relied upon were, in terms,
plainly not offers to purchase, one would have expected
THR to lay a
foundation in fact for a finding that it was entitled to conclude, or
that a reasonable person would have believed,
that the written
purchase orders constituted an offer to purchase.
[2]
However, the evidence tendered on behalf of THR falls woefully short
of laying any such foundation. In the final analysis, the
evidence
adduced on behalf of THR does not disclose any conduct on the part of
Vincorp that could have caused Mr Molnar to believe
that those
documents constituted an offer to purchase, other than the mere fact
of their delivery to THR. A proper analysis of
the evidence does not
disclose any conduct on the part of Vincorp that could have caused
THR to labour under the genuine misapprehension
that Vincorp was
anything other than VinCo’s importing and logistical agent. As
Nienaber JA observed in
Africa
Solar
(para
33): ‘If, at the end of all the evidence, there is uncertainty
as to whether
animus
contrahendi
on the part of both parties had been established, the plaintiff, on
that particular issue, had to lose.’
In my view,
this is precisely such a case.
[32]
It remains to observe: Van Staden AJ concluded that THR had failed to
discharge the onus of establishing the necessary
animus
contrahendi
on the part of both parties. That ought to have been the end of the
matter. The learned judge then referred
en
passant
to the fact that THR had not pleaded or proved estoppel or quasi
mutual assent. The full court seems to have taken its cue from
those
observations. Arguably, the only conceivable basis for holding that
an agreement arose out of the documents was the passage
in the
judgment of Blackburn J in
Smith
v Hughes
[3]
upon which
the full court relied. However, the application of that test was not
foreshadowed in THR’s pleadings. In that regard
the following
observation by Heher J in
Constantia
Graswerke BK v Snyman
1996 (4) SA 117
(W) at 124I-J is apposite:
‘
Whatever
the relationship of quasi-mutual assent to estoppel (see, for
example, the discussion in Christie
The
Law of Contract in South Africa
2
nd
ed at 26-8), I have no doubt that, where the first-mentioned is
relied upon by the plaintiff to meet a denial by a defendant that
he
is a party to a contract, that reliance amounts to a confession and
avoidance in the sense of the plaintiff conceding that,
although it
is unable to rely upon the signature to the agreement as proof of
real
consensus
,
other facts nevertheless justify the conclusion that legal
consensus
existed between the parties. That, in turn, requires the raising of a
replication so that the defendant may properly be apprised
of the
defence and may plead further to it, if necessary. The plaintiff did
not do that and, in my view, its claim as formulated
does not cater
for counsel’s submission.’
[33]
As it was put in
Fischer v Ramahlele
2014 (4) SA 614
(SCA)
paras 13 - 14:
‘
Turning
then to the nature of civil litigation in our adversarial system, it
is for the parties, either in the pleadings or affidavits
(which
serve the function of both pleadings and evidence), to set out and
define the nature of their dispute, and it is for the
court to
adjudicate upon those issues. . . . There are cases where the parties
may expand those issues by the way in which they
conduct the
proceedings. There may also be instances where the court may mero
motu raise a question of law that emerges fully from
the evidence and
is necessary for the decision of the
case.
That is subject to the proviso that no prejudice will be caused to
any party by its being decided. Beyond that it is for the
parties to
identify the dispute and for the court to determine that dispute and
that dispute alone.’
[34]
Assuming, however, that the case as pleaded was sufficient to justify
reliance on quasi-mutual assent, THR still had to fail.
As I have
endeavoured to show, the evidence, considered holistically, does not
support a finding of quasi-mutual assent. And, had
the full court
embarked upon the enquiry postulated by Harms JA in
Sonap
Petroleum,
which it failed properly to do, it ought, in my view,
to have found that even on that score THR had to fail.
[35] In
the result the appeal must succeed and it is accordingly
upheld
with costs.
The order of the full court is
set aside and replaced by:
‘
The
appeal is dismissed with costs.’
_______________
V
M Ponnan
Judge
of Appeal
APPEARANCES:
For
Appellant:
R
F van Rooyen SC
Instructed
by:
Faure
& Faure Inc., Paarl
Webbers
Attorneys, Bloemfontein
For
Respondent:
R
D McClarty SC
Instructed
by:
Miller
Bosman Le Roux Hill, Somerset West
Phatshoane
Henney Attorneys, Bloemfontein
[1]
Africa
Solar (Pty) Ltd v Divwatt (Pty) Ltd
2002 (4) SA 681
(SCA) para 33.
[2]
Spes Bona Bank Ltd v
Portals Water Treatment South Africa (Pty) Ltd
[1983]
1 All SA 375
(A) at 374.
[3]
Smith v
Hughes
(1871) LR 6 BQ 597 at 607.