About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Western Cape High Court, Cape Town
SAFLII
>>
Databases
>>
South Africa: Western Cape High Court, Cape Town
>>
2015
>>
[2015] ZAWCHC 34
|
|
Herman v Oosthuizen (16 793/2013) [2015] ZAWCHC 34 (26 March 2015)
IN THE HIGH COURT OF
SOUTH A FRICA
[WESTERN CAPE DIVISION,
CAPE TOWN]
CASE NO: 16 793/2013
DATE: 26 MARCH 2015
REPORTABLE
In the matter between:
ANTHONY HYMAN
HERMAN
........................................................................................
PLAINTIFF
And
COLLEEN WENDY
OOSTHUIZEN
.............................................................................
DEFENDANT
JUDGMENT
DELIVERED ON THURSDAY, 26 MARCH 2015
DLODLO, J
INTRODUCTION
[1] Plaintiff in this matter is an
attorney. He has instituted an action claiming professional fees due
and owing to him by the
Defendant. The Defendant, a practicing estate
agent and a businesswoman in her own right was married to one Anton
Gerald Oosthuizen
[who was also a businessman and an estate agent] on
12 November 2005 in Cape Town out of community of property by way of
an ante-nuptial
contract in terms of which the accrual regime was
applicable. The Defendant employed the services of the Plaintiff who
then practiced
in the firm of Attorneys Abe Swersky and Associates in
Cape Town, on various matters mentioned later on in this judgment.
The various
matters on which the Plaintiff was engaged inter alia
related to the matrimonial breakdown and the consequences that
ordinarily
follow therefrom.
THE PLEADINGS
The particulars of claim categorize the
various claims as follows:
(a) Under claim A the amount claimed is
R403 749.23, being the amount of the Plaintiff’s fees billed to
the Defendant as taxed
by the Taxing Master in the amount of R625
094.50 , less an admitted amount of R330 335.40 paid by the
Defendant, together with
interest thereon at the rate of 2% per month
until 18 September 2013
(b) Under Claim B two amounts are
claimed, namely:
(i) An amount of R62 207.11 being the
sum of money disbursed by the Plaintiff in respect of cost,
consultant’s fees and charges
for which Plaintiff alleges the
Defendant is liable under a mandate concluded between the Defendant
and the Plaintiff;
(ii) An amount of R7 625.00 being the
amount of fees and disbursements due to the Plaintiff by the
Defendant as assessed by the
Law Society of the Cape of Good Hope
under Section 69 (h) of the Attorneys Act.
[2] Importantly, according to the
testimony of the Plaintiff his claim in respect of cost consultant’s
charges set out above
falls to be reduced by the amount of R14 099.10
in that such an amount has been allowed for in the Taxing Master’s
allocator
in respect of his attorney and client bill. Despite denials
apparent on the pleadings I mention that at the trial no dispute
arose
as to the quantification of the Plaintiff’s claim. An
amount of R330 335.40 paid by the Defendant in reduction of the
Plaintiff’s
fees is admitted. The Plaintiff’s claim is
further premised on a deed of cession in terms of which the Plaintiff
took cession
of the abovementioned claims from his erstwhile firm of
Abe Swersky and Associates which was dissolved after the death of the
partner,
Mr Abe Swersky. The cession is not an issue for
determination as it was not disputed at trial. At trial the
Defendant’s defence
was limited to a challenge to her liability
under a written mandate or Letter of Engagement concluded between the
partners of the
Plaintiff’s erstwhile firm, Abe Swersky and
Associates and the Defendant on 31 August 2011. The Defendant
contended that
she is not bound by the terms and conditions of that
agreement on grounds set out infra.
[3] In the Defendant’s Plea the
Defendant state that she was not afforded the opportunity nor
requested to read the Letter
of Engagement and the contents thereof
were not explained to her but that she was merely requested to fill
out a form to become
a client of Abe Swersky and Associates and to
sign the annexures to such form which she did. It is further pleaded
that the Defendant
was not in a sound mental state at the time of
signature of the Letter of Engagement and that therefore she was
unable to enter
into a valid and legal binding agreement. Although
the Defendant admits that her signature appears on the Letter of
Engagement
she stated that she only recalls having had to fill out a
form providing her personal details in order to become a client of
Abe
Swersky and Associates and to sign the annexures to such form.
Having recorded above the contents of the Defendant’s Plea
it
is important to also record that at the trial the Defendant’s
counsel advised the Court that despite the afore-going allegations
on
the pleadings the Defendant’s primary defence is that there was
a mistake on her part when she entered into the contract.
[4] Nevertheless and in evidence before
Court, the Defendant did not limit her defence to one of mistake. On
the contrary no defence
in mistake was made out in evidence. I hasten
to add that at the hearing the Defendant persisted in the allegations
that at the
time she concluded the mandate that she was in a mental
state which did not allow her to comprehend and conclude a contract
of
this nature. In other words, she did not have the necessary
contractual capacity. I shall consider the Defendant’s defence
later on in this judgment. At pre-trial level the parties reached an
agreement that in the nature of this case it is the Defendant
who
bears the onus. Therefore it was only logical that she presented her
version first before this Court. I summarize and simultaneously
comment on her evidence as presented in Court. I shall thereafter
give a summary of the Plaintiff’s evidence.
DEFENDANT’S EVIDENCE
[5] She testified that she approached
the Plaintiff to act as her attorney and represent her in proceedings
instituted to gain interim
custody of her child. She approached the
Plaintiff on the day after she suffered what she described to be a
traumatic incident
in the course of a dispute with her husband where
she was left standing at the side of the road while her husband drove
off with
her child. According to her she was obliged to approach the
Plaintiff and his firm urgently as the proceedings instituted by her
husband was set down for urgent hearing the following day.
[6] The Defendant testified that when
she attended at the Plaintiff’s offices in order to meet with
the Plaintiff, she was
provided by a staff member with certain
documents to complete and sign and these documents included the
Plaintiff’s mandate
in the form of the letter of engagement
together with the schedule of fees attached thereto. Despite the
allegation in the Plea
that the Defendant was not afforded the
opportunity to read the document, she conceded that this allegation
is false and that she
had in fact been afforded an opportunity to
read the document. The Defendant was somewhat equivocal as to whether
she had been
advised or requested to read the document. She, however,
did not deny that she had the opportunity to raise queries in respect
of the document had she felt the need to do so.
[7] Her evidence was that at the time
she concluded the mandate she was, by virtue of the recent events, so
traumatized that she
was not capable of comprehending the document or
giving consideration to its import and that she thus signed the
document without
reading it. She persisted in claiming that she was
not of sound mind when she concluded this contract. She, however,
conceded that
approximately 18 months prior she had signed a mandate
in similar terms which provided for the charging and payment of fees
on
the same basis as now claimed by the Plaintiff, namely in
accordance with the non-litigious rate of the Law Society of the Cape
of Good Hope.
[8] When faced with this difficulty,
the Defendant sought to suggest that she had at that time also been
so traumatized that she
was unable to comprehend the nature of the
document. I hasten to mention that her evidence in this regard was
rather extremely
poor and seemed only to detract from her
credibility. I say so in that it is clear that she had previously
concluded a similar
contract with the same Plaintiff and thus could
not seriously allege that she was not acquainted with and/or familiar
with the
terms of the Plaintiff’s mandate. She was no stranger
at all to this kind of mandate or letter of engagement.
[9] The Defendant admitted that after
concluding the agreement incorporating the Letter of Engagement, the
mandate between the Plaintiff
and the Defendant as attorney and
client was implemented and the Plaintiff and his partners continued
to act as her attorneys in
respect of a number of different legal
proceedings including –
(a) The application for interim custody
of the children; (b) An anti-dissipation interdict; (c) Divorce
proceedings; (d) Family
violence interdict proceedings; (e)
Proceedings in respect of a criminal charge laid against her. The
Defendant conceded that she
did not at any time during the
performance of this mandate challenge the validity of the contract
between the parties or even complained
about the basis on which the
fees were being charged. Rather she admitted that she attended to
making payment upon receipt of accounts
from the Plaintiff and his
firm. She testified that the mandate between her and the Plaintiff’s
firm was terminated in or
about July 2012 when she was unable to fund
the litigation any further. According to the Defendant she was
thereafter assisted
by her pastor and that she settled the divorce
with her husband.
[10] Her evidence is further that upon
receipt of the Plaintiff’s final account, she did not attend to
payment thereof. She
required the bill to be taxed. Indeed taxation
was conducted by the Taxing Master over a four day period and it was
concluded on
18 September 2013. Bundle A39 shows that the bill was
taxed in the total amount of R625 094.50. Clearly the Defendant’s
request
for taxation rather than challenge to her liability
demonstrates that her dispute was as to the quantum of fees charged
and not
her liability for fees. This tallies with the concession made
by the Plaintiff that she did not thereafter, whether verbally or
in
correspondence, challenge the validity of the mandate or her
liability for fees thereunder, but that on the contrary she sought
to
negotiate a discount on the fees and to make offers of payment by way
of instalments.
[11] The correspondence the Defendant
addressed by e-mail to the Plaintiff at the time also indicates some
agreement in terms whereof
she undertook to make payment of the
Plaintiff’s fees out of funds to be received by her from her
husband under her divorce
settlement. It is, however, important to
mention that the Defendant in her evidence sought to deny this
agreement. But it is of
course, plain from the correspondence
exchanged between her and the Plaintiff that such agreement indeed
existed and that she did
not at the time dispute it. That it is so is
apparent in Bundle A46, 47 and 51. It is plain that when the
negotiations between
the parties were not successful and the
Plaintiff issued summons, the Defendant then raised the defence that
she had concluded
the mandate agreement while of unsound mind (as set
out in her Affidavit filed in opposition to the application for
summary judgment
and to which she testified at this trial).
[12] I do not differ from the
contention put forth by Mr Bremridge that clearly the true nature of
the Defendant’s complaint
or the basis upon which she seeks to
escape liability is that ex post facto and after the termination of
the mandate, she discovered
the existence of the litigious tariff and
was or must have been advised to the effect that in the absence of an
agreement, this
tariff would have applied between the parties. In
other words, she realized in retrospect that she could perhaps have
negotiated
for a better deal had she been of a mind to do so. I ask
myself a rhetorical question how on earth could this amount to a
mistake?
Another issue of importance is that despite the indication
to the Court by the Defendant’s counsel that her defence is
founded
in mistake, her evidence is not consistent with the defence
of mistake. Her evidence remains that she was of unsound mind when
she concluded the contract and she did not consider or comprehend its
contents or import. I shall deal further with the mistake
put forth
as the defence infra.
[13] Her evidence as I have mentioned
supra is completely inconsistent with the defence of mistake which is
not premised on a failure
to comprehend the contract but an error as
to its import or terms. Her evidence must necessarily be contrasted
with what I prefer
to describe as the uncontroverted evidence of
Renaë Stone who testified for the Plaintiff.
THE PLAINTIFF’S EVIDENCE
[14] In short Ms Stone testified that
she was previously employed by the firm Abe Swersky and Associates as
a bookkeeper. She did
from time to time attend to having mandates and
letters of engagement concluded and did so in relation to that in
question herein.
According to Ms Stone there was a procedure
implemented as to how this should be done which she would have
implemented in the case
of the mandate in issue herein.
[15] According to Ms Stone the
Defendant was presented on 31 August 2011 with: (a) a client
information sheet which she was requested
to complete giving her
personal and contract details; (b) a Letter of Engagement setting out
the terms and conditions upon which
Abe Swersky & Associates
would accept a mandate to act on her behalf to which was attached as
an annexure (Annexure “A”)
a schedule of the fees in
accordance with which the Defendant would be debited for professional
services to be rendered on her
behalf. Ms Stone testified that the
Defendant was advised by her to read the Letter of Engagement and
that her particular attention
was drawn to the annexure of fees to be
debited annexed thereto. Ms Stone emphasized that the Defendant was
advised by her that
if she had any queries relating to the Letter of
Engagement and annexures thereto she could take such queries up with
the Plaintiff.
[16] It was Ms Stone’s evidence
that the Defendant completed and signed the client information sheet
and the Letter of Engagement
without raising any concern and that she
(Ms Stone) thereafter witnessed and initialed the document. She
stated in her evidence
that she could not recall witnessing a
document in circumstances where the client was crying or in a
traumatized state at the time
of signature of the Letter of
Engagement remarking that if that had been the case she would have
recalled it. According to Ms Stone
the Defendant frequently came into
the office and most times she was very friendly and “chatty”
with all staff members
with whom she came into contact. Ms Stone did
not experience the Defendant as being afraid of or intimidated by the
Plaintiff.
[17] The Plaintiff’s testimony
was that save in deserving cases (where a special arrangement is
reached) he offers his services
exclusively on the basis of the
tariff as set out in the Schedule to the Letter of Engagement which
is in accordance with the non-litigious
tariff of the Law Society of
the Cape of Good Hope from time to time. According to the Plaintiff
clients are not presented with
any choice or election between that
tariff and any other tariff.
[18] In the Plaintiff’s evidence
clients must either accept that tariff or negotiate and agree on
another fee arrangement
with the firm, which engagement would also,
by its very existence, have the effect that the litigious tariff
would be irrelevant.
The Plaintiff testified that the firm had a
procedure which it followed in having mandates signed and this
accorded with that testified
to by Ms Stone. The Plaintiff also
mentioned in his testimony that the Defendant had signed a similar
mandate previously and that
any suggestion that at that time she was
unable to comprehend the document was without merit. He added that he
has on occasion
had clients who raised queries or sought to negotiate
another arrangement. He emphasized that there is no question of
himself having
failed to draw the Defendant’s attention to any
choice or election or to any other fee tariff which she could choose
or insist
on to form the basis of the mandate.
[19] According to the Plaintiff the
Defendant was perfectly lucid at the time of her giving him
instructions on the day she signed
the Letter of Engagement. He added
that throughout the period of his mandate (some 11 months) his debits
were never queried, questioned
or challenged by the Defendant. He
told the Court that the accounts he rendered from inception and
from time to time were paid
by the Defendant without demur. In his
evidence the Defendant had every opportunity throughout the period of
the mandate to query
or challenge his several debits and accounts but
she did not do so. He thus had no reason to suspect that there was
any mistake
or dispute with regard to the terms of mandate. The
Plaintiff told the Court that he had advised the Defendant in detail
of the
likely costs of pursuing the litigation to trial and the
figures and the rough estimates which he had given the Defendant
which
she obviously accepted was uncontroverted and unchallenged.
[20] The Plaintiff had encouraged the
Defendant and had even taken active steps to settle the matter by
drafting several consent
papers incorporating settlement proposals
which were then discussed and negotiated but that the Defendant had
refused to do so.
This piece of evidence was uncontroverted. He
testified that the Law Society had rejected the Defendant’s
complaint as being
unfounded. According to the Plaintiff he alone
(except in the case of the criminal proceedings) had dealt
exclusively and diligently
with the Defendant’s matters. He
told the Court that the Defendant made various attempts to negotiate
a reduction of his
fees and to pay in instalments. Importantly, the
Plaintiff testified that the Defendant agreed with him to pay his
fees from the
funds to be received from her husband in terms of
Clause 5.1 of their consent paper but that the Defendant reneged on
such agreement.
[21] The Plaintiff testified that it
was only after the Defendant’s various offers to pay were
declined that she put up the
version that when she signed the Letter
of Engagement she was of unsound mind and did not know what she was
signing. He testified
that throughout the subsistence of the mandate
each account sent to the Defendant was paid by her without demur and
that at no
time during the subsistence of the mandate did she query
any fees debited to her. In passing I must mention even at this stage
that the evidence by the Plaintiff supported the allegations made in
the particulars of Claim.
EVALUATION AND APPLICATION OF
RELEVANT LEGAL PRINCIPLES TO THE FACTUAL MATRIX
[22] Mr Van der Linde prefixed his
submissions by stating that the general rule with regard to the
signing of documents in our law
is that the maxim caveat subscriptor
applies. He pointed out that this principle requires that in the
normal course when a person
signs a document, that signature should
denote an intention to be bound by the terms and conditions embodied
in the signed document.
According to Mr Van der Linde in the
interests of fairness and justice I should relax the application of
the maxim and that I should
do this through the application of the
doctrine of quasi-mutual assent. I have been referred to Brink v
Humphries & Jewel
2005 (2) SA 419
(SCA) at 424G-425D as well as
to Sonap v Pappadogianis
[1992] ZASCA 56
;
1992 (3) SA 234
(A) at 239I-240B. In the
latter case Harms AJA (as he then was) postulated the test as
follows:
“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?”
And the three-fold inquiry suggested is
as follows:
“Firstly, was there a
misrepresentation as to the 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?”
The above cases are completely
distinguishable from the instant case. The Defendant did not plead
mistake in the instant matter.
In National & Overseas
Distributors Corporation (Pty) Ltd v Potato Board
1958 (2) SA 473
(A)
at 479 the then Appellate Division held, inter alia:
“At least the mistake (error)
would have to be reasonable (Justus) and it would have to be
pleaded.”
[23] As I mentioned earlier on in this
judgment while the Defendant’s counsel advised the Court that
the Defendant’s
defence was one of mistake and the issue of
mistake was dealt with in cross-examination, there is no
clarification on the pleadings
or elsewhere of what the mistake was.
In other words no clarification is apparent on the pleadings as to
the respects in which
it is alleged there was no consensus between
the parties.
[24] It must be mentioned that what
compounds the situation is that the Defendant did not testify at all
that there was any mistake
or lack of consensus. On the contrary, she
testified that she did not consider the content or import of the
contract and was of
unsound mind at the time. In the absence of a
proper allegation on the pleadings informing the Court of what the
nature of the
mistake is alleged to be, the court is rendered unable
to determine this defence to the Plaintiff’s claim. See in this
regard
National & Overseas Distributors Corporation (Pty) Ltd v
Potato Board supra. However, in the interests of justice I shall
proceed
to consider the defence of mistake infra.
[25] One may as well prefix this
discussion by quoting from Christie, The Law of Contract in South
Africa, 6th edition page 328
where the learned author gives the
following guiding observation of the law of contract:
“When a layman says he made a
mistake in entering into a particular contract the lawyer’s
comment, after listening to
the story, will often be that this is the
sort of mistake for which the law can provide no remedy. Paraphrasing
the layman’s
description of his action as mistaken, the lawyer
will say that it was ill-advised or due to an error of judgment. If
the law were
to give relief from what, in retrospect, are seen as
errors of judgment the whole concept of a contract as binding and
enforceable
agreement would be destroyed.”
I fully agree with the above
observation. The question is was there a mistake? In answering this
question I ordinarily must employ
the set of questions usually
employed in considering a mistake. These were clearly set out by
Davis AJ (as he then was) in Prins
v Absa Bank Ltd
1998 (3) SA 904
(C) as follows:
“(a) Is there consensus?
(b) If not, is there dissensus caused
by a mistake?
(c) Is the other party aware of the
resiler’s mistake?
(d) Who induced the mistake and was it
done by commission or omission which was either fraudulent, negligent
or even innocent?”
[26] The Defendant in the instant
matter needed to show firstly that at the time that she concluded the
contract she acted under
some misapprehension or misunderstanding as
to the terms, import or effect of the contract. A legally
recognizable mistake in the
law of contract was explained as follows
in Dole South Africa (Pty) Ltd v Pieter Beukes (Pty) Ltd
2007 (4) SA
577
(C) at 587:
“A party to a contract who has
concluded same whilst labouring under a bona fide and reasonable
mistake as to its contents
will not be bound by the provisions
thereof. In particular, where the contracting party has been led to
believe by the other party
that the contract contains certain
provisions, which in fact it does not, the party relying upon the
misrepresentations, will not
be bound by the agreement.”
[27] The Defendant can hardly be said
to have even met the first hurdle of showing that there was dissensus
between the parties
let alone that it arose by virtue of mistake. See
analysis of facts by Brand JA in Constantia Insurance Co Ltd v
Compusource (Pty)
Ltd
2005 (4) SA 345
(SCA) in order to consider
whether there was any dissensus. That is not in any event, the
Defendant’s case either on the
pleadings or in evidence before
this Court.
[28] The Defendant at no time suggested
that she misunderstood or misapprehended the terms or import of the
contract she concluded
or that her understanding thereof was any
different from that of the Plaintiff. On the contrary, her evidence
was that she signed
the contract without giving any consideration as
to what terms it may not contain and the import of the contract may
be. By way
of an example, she did not testify to the effect that at
the time she concluded the contract she had any expectation of what
its
terms would be and that the actual terms are different from that
which she thought were in the contract at the time she signed it.
Indeed she could not testify to the above effect because firstly she
says she did not give consideration to the terms or import
of the
contract when concluding it; and secondly because she had signed a
prior mandate to the same effect the previous year and
she thus knew
what or she reasonably should be taken to have known what the terms
were. The first two questions posed in Prins
v Absa Bank Ltd supra
must obviously be answered in the negative.
[29] It needs to be said that the
Defendant’s evidence was (in the respect mentioned infra)
inconsistent with any suggestion
that at the time she concluded the
contract she did so under the operation of any mistake. Her evidence
was that after the termination
of the mandate and after the taxation
of the Plaintiff’s bill by the Taxing Master, she had been
advised by the Taxing master
that there existed a High Court tariff
which provided for the charging of fees in amounts less than that for
which she had contracted
with the Plaintiff and his firm (a fact of
which she had not been aware at the time of concluding the mandate).
The Defendant in
her evidence does not suggest that at the time she
concluded the mandate she thought she was concluding the mandate at
one tariff
whereas in fact it was at a higher tariff.
[30] Her evidence was that she had
(after the fact and after the mandate had been terminated) acquired
information which led her
to be unhappy about the terms upon which
she had contracted with the Plaintiff. Of course it is settled law
that this does not
constitute a legally recognizable mistake. The
high watermark of the Defendant’s case is that she concluded a
contract in
terms with which she was retrospectively or ex post facto
unhappy. This cannot afford a litigant any relief in relation to
contract.
In my view, this falls squarely within the category of a
case which Christie (The Law of Contract in South Africa) supra
describes
as providing no remedy and in respect of which a lawyer may
say that the contract was ill-advised but which (if relief were
given)
would result in a situation where “the whole concept of
contract as a binding and enforceable agreement would be destroyed”.
Indeed the Defendant’s own conduct and communications evidence
this to be so.
[31] It is plain that for a substantial
period of time after the mandate was terminated, the Defendant
admitted her liability and
sought to agree to terms with the
Plaintiff as to a discount on the fees and terms to pay it off. It
was only when these negotiations
failed that she then sought legal
advice. Her intentions are evidenced by her electronic mail of 7
October 2013 where she states
that if her offers as contained therein
are not accepted and if she is summoned, then in that event she will
seek legal advice.
The legal advice she intended to seek was clearly
an endeavour on her part to avoid and/or extinguish her previously
admitted obligation.
So much is clear if one has regard to Bundle
A46.
[32] She indeed sought advice and one
may fairly say that ex post facto she manufactured two defences in
her clear endeavor to escape
liability. One defence is that of
unsound mind (this was raised first when she resisted summary
judgment and subsequently in her
plea). The second defence raised at
trial for the first time is that of “mistake”. The latter
defence was never pleaded
nor supported by the Defendant’s
evidence before Court. I hold that there was never any mistake. This
Court is not going
to permit the Defendant to avoid her contractual
obligations on this basis.
[33] She had onus to prove dissensus in
the conclusion of the contract. In my view, that should be the end of
the enquiry. There
is no need that further questions posed in Prins v
Absa Bank Ltd supra be determined. It is still our law that a man,
when he signs
a contract is taken to be bound by the ordinary meaning
and effect of the words which appear over his signature. See Burger v
Central
South African Railways 1903 TS. I fully associate myself with
the following sentiments appearing as a dictum in Absa Bank Ltd v
The
Master and Others NNO
1998 (4) SA 15
(N):
“A unilateral mistake, other than
a mere error in the motive, also does not allow the party labouring
under the erroneous
belief to repudiate his apparent assent to a
contract except in very narrow circumstances, as explained in George
v Fairmead (Pty)
Ltd
1958 (2) SA 465
(A) at 471 and National &
Overseas Distributors Corporation (Pty) Ltd v Potato Board
1958 (2)
SA 473
(A) at 479. The effect of these decisions is that, for a
unilateral mistake to vitiate the necessary assent to a contract, the
error must be a justus error. In this respect the ‘courts in
applying the test, have taken into account the fact that there
is
another party involved and have considered his position. They have,
in effect, said: Has the first party – the one who
is trying to
resile – been to blame in the sense that by his conduct he has
led the other party, as a reasonable man, to
believe that he was
binding himself?’”
[34] Of course the Defendant relying on
a mistake has onus to firstly establish that any error was material
in the sense that the
Defendant would not, but for her mistake, have
concluded the contract. But in the instant matter the Defendant gave
no such evidence.
I observed that despite repeated attempts by her
counsel to afford her the opportunity of giving evidence to this
effect, her evidence
remained unclear as to how she would have
reacted differently had she known that there existed something such
as the litigious
tariff. She did not testify that she would have
refused to contract with the Plaintiff and his firm on any basis
other than in
accordance with the litigious tariff. On the contrary,
it would appear that she paid no heed whatsoever to the rates or
tariff
reflected in the mandate but that given the urgency of the
circumstances and the pending application in relation to her
children,
she would willingly have concluded any contract in order to
engage the Plaintiff and his firm to act urgently. Undoubtedly that
was the import of her evidence as I listened to it attentively. I am
in agreement therefore with the submission by Mr Bremridge
that there
is no satisfactory evidence tendered before Court to show that the
Defendant would (if advised of the existence of the
litigious tariff)
have concluded any different contract. In the light thereof she
cannot possibly succeed in overcoming the onus
on her in this regard
either. Another important aspect is that even if the Defendant could
prove dissensus due to mistake and that
such mistake was material,
the point of matter how material the mistake is, the Defendant cannot
escape the contract because her
mistake was clearly due to her own
fault.
[35] At the risk of overburdening this
judgment with a repetition of aspects already dealt with, I need to
emphasize that this is
not a case where the Defendant either:
(i) Read the contract but did not see
or understand the import of an unusual term due to it being hidden in
the document or couched
in difficult language or for some other
reason not due to her fault; or (ii) had some reasonable expectation
of the terms of a
contract of such nature and was then surprised by a
term she could not reasonably have expected to find therein. On the
contrary,
the terms as to the Plaintiff’s fees and related
matters are clearly set out in the document in a paragraph commencing
with
words indicating an agreement to the terms set out below. The
term in relation to the Plaintiff’s fees is the very first such
term and appears prominently on the front page of the document. She
was no stranger as to how the Plaintiff charges his fees; she
previously concluded a similar mandate on the same basis as to fees.
Ms Stone’s evidence was clear in this regard namely,
that the
Defendant’s attention was specifically drawn to the Letter of
Engagement and separately to the Schedule of fees
and that she was
advised to read the documents and raise any queries she may have.
[36] The Defendant’s counsel to a
certain extent attempted to suggest that whatever mistake is alleged
arose due to some fault
on the part of the Plaintiff in failing to
draw the Defendant’s attention to an unusual term in the
contract. This argument
appears to be premised on the idea that the
mandate contained an unexpected or unusual term to the effect that
the Defendant was
deprived of some right to contract with the
Plaintiff on the basis of the High Court Tariff or that she had some
election to choose
between the litigious tariff and the non-litigious
tariff which election the Plaintiff failed to disclose to her. This
stance is
at odds with the facts in the instant matter. It is also at
odds with the law and is misleading. There exists no unusual or
unexpected
term in the contract under discussion in the instant
matter. The Plaintiff’s evidence was very clear in this regard,
namely,
that he offers his services exclusively on the basis of the
tariff as set out in the Schedule to the Letter of Engagement [which
is in accordance with the non-litigious tariff of the Law Society of
the Cape of Good Hope from time to time]. In his evidence
clients are
not presented with any choice or election between that tariff and any
other tariff.
[37] Strangely the Defendant testified
that by virtue of her own experience as an estate agent she would
expect to find a term providing
for rates of remuneration in a
mandate or Letter of Engagement. It was put to the Plaintiff that
generally attorneys charge rates
other than that stipulated by the
litigious tariff. In concluding this aspect it is prudent to refer to
Christie (The Law of Contract
in South Africa). I fully agree with
Christie that unless the mistaken party can prove that the other
party knew of his or her
mistake or that as a reasonable person
he/she ought to have known about it or that he caused it, the onus of
showing that the mistake
was a reasonable one justifying release from
the contractual bond will not be easy to discharge. In any event, a
party entering
into a contract from a mistaken motive when no
knowledge or fault is imputable to the other party cannot escape
liability even
if he can prove that the mistake of motive was
material in the sense that it induced him and would have induced a
reasonable man
to enter into the contract. I conclude this aspect of
the judgment by setting out the following telling exposition by
Christie
with which I am in full agreement at pages 329 to 320:
“However material the mistake,
the mistaken party will not be able to escape from the contract if
his mistake was due to his
own fault. This principle will apply
whether his fault lies in not carrying out the reasonably necessary
investigations before
committing himself to the contract, that is,
failing to do his homework; [Wiggins v Colonial Government
(1899) 16
SC 425
429; Acacia Mines Ltd v Boshoff
1957 1 SA 93
(T) 101H-102B;
Lindsay v Beukes 1958 2 PH A34 (E); Diedericks v Minister of Lands
1964 1 SA 49
(N) 57D-H; Springvale Ltd v Edwards
1969 1 SA 464
(RA)
468 470H; Osman v Standard Bank National Credit Corporation Ltd
1985
2 SA 378
(C) 388F-I], in not bothering to read the contract before
signing; [Ex parte Rosenstein
1952 2 SA 324
(T); Standard Credit
Corporation Ltd v Naicker
1987 2 SA 49
(N)]; in carelessly misreading
one of the terms; [Patel v Le Clus (Pty) Ltd
1946 TPD 30]
; in not
bothering to have the contract explained to him in a language he can
understand; [Mathole v Mothle 1951 a SA 256 (T)],
in misinterpreting
a clear and unambiguous term, [Van Pletzen v Henning
1913 AD 82
89;
Irwin v Davies
1937 CPD 442-447]
, and in fact in circumstances in
which the mistake is due to his own carelessness or inattention, for
he cannot claim that his
error is iustus. It is not sufficient simply
to avoid condemnation as careless or inattentive, for the mistaken
party must go further
and discharge the onus of proving that his
mistake was, in the eyes of the law, reasonable.”
[38] Due regard being had to the facts
of the instant case, even if the Defendant laboured under some
misapprehension (she did not
– now we know) as to the terms of
the mandate, she is nevertheless bound to the document and is and
must be precluded from
avoiding it by operation of the doctrine of
quasi mutual assent. See George v Fairmead (Pty) Ltd
1958 (2) SA 465
(A). What remains to be considered is the defence actually raised in
the Defendant’s Plea.
THE DEFENCE OF UNSOUND MIND
[39] This defence first surfaced in an
Affidavit filed in opposition to the granting of summary judgment
against the Defendant.
She averred in that Affidavit that at trial
she would present evidence of an expert nature to support her
allegations of an inability
to comprehend and thus conclude the
contract of mandate. I mention though that despite being confronted
with evidence that her
attorneys had specially sought an opportunity
to deliver expert reports so that such evidence may be presented at
trial, the Defendant
could not explain why such evidence had not been
presented.
[40] The Defendant could not refute
that on the day she concluded the contract (31 August 2011) she had
been able to give proper
instructions to her attorneys (in particular
to the Plaintiff) and that on the following day (1 September 2011)
had deposed to
an Affidavit in application proceedings prepared on
the basis of her instructions to the Plaintiff attorney.
[41] The Defendant conceded that she
had at that time and in the course of the legal proceedings then
conducted she denied that
she had suffered any psychological
difficulty and had (in support of her case in this regard) submitted
a report from her own “clinical
pastoral therapist”, one
Sonya Hunt, to the effect that she was at all times fully connected
to reality, even when experiencing
hurt and trauma. That belied
Defendant’s suggestion of any psychological or mental
disability at the time. It is also the
Plaintiff’s evidence
that on the morning she signed the mandate and shortly after she had
done so, the Defendant had appeared
coherent and completely in
control of her faculties even though she was “cross”. She
had been able to give detailed
and sensible instructions to the
Plaintiff in the matter.
[42] I am of the view that the
Defendant’s decision not to call expert evidence in support of
her allegation in the Plea that
she had been of unsound mind when
requested to sign the mandate is telling. This being so in the light
her prior statements under
oath that she would do so leaves the door
wide opened for the drawing of an inference (a reasonable one I
would say) that she
decided against this because she knows expert
evidence would not support her case in this regard. I am of the view
that the inference
I have referred to supra is not only a reasonable
one but it is an inescapable one in the circumstances of this matter.
Strangely
in cross-examination the Defendant conceded that the
allegation in paragraph 4.1 of her Plea, that she had not been
afforded the
opportunity to read the Plaintiff’s Letter of
Engagement was false. On being questioned further on this she was
unable to
give a proper explanation of why such a false allegation
had been made in her Plea.
[43] I must say that the Defendant was
somewhat equivocal as to whether she had been requested to read the
document. But the evidence
of the Plaintiff’s employee that
attended to presenting the document to the Defendant and who had
witnessed her signature
and the conclusion thereof, Ms Stone, was
that the Defendant’s attention had been expressly drawn to both
the mandate and
the Schedule of fees attached thereto. This evidence
survived cross-examination. Importantly, the Plaintiff confirmed the
procedure
for the conclusion of the mandate agreement or Letter of
Engagement which had been implemented at the firm, testified to by Ms
Stone. I hasten to add that the Plaintiff’s evidence in this
regard was never challenged in cross-examination by Mr Van der
Linde.
In any event, how can an estate agent and a renowned businesswoman
(which is what the Defendant is) simply sign a document
without
reading it? I find it hard to accept. Thus the defence pleaded has
not been proved at all. I do need to point out that
on the
whole the Defendant was an extremely
poor witness. She was argumentative and evasive whilst under
cross-examination. The Court had
to constantly warn her to allow
questions to be fully put to her before she attends to answering
them. But this was to no avail.
COSTS
[44] The general principle is that a
successful party is entitled to an order of costs against the
unsuccessful one. There may be
justifiable reasons why a successful
party is deprived of its costs. None exist in the instant matter. In
the circumstances I hold
that the Plaintiff is entitled to an award
of costs herein.
ORDER
[45] In the result I make the following
order:
(a) Judgment is granted in favour of
the Plaintiff and the Defendant is ordered to make the following
payments to the Plaintiff:
(i) Payment of the amount of R403
749.23;
(ii) Payment of the amount of R48
108.01 (being R62 207.11 less the sum of R14 099.10);
(iii) Payment of the amount of R7
625.00;
(iv) Interest on the aforementioned
amounts at the rate of 2% per month calculated as from 18 September
2013 to date of payment.
(b) It is ordered that the Defendant
shall pay costs of suit on a party and party scale.
DLODLO, J
APPEARANCES:
For Plaintiff : ADV. IC BREMRIDGE
Instructed by : Thomson Wilks Inc
[Mr.A. Scribante – 021 424
4599]
For Defendant : ADV. D. VAN DER
LINDE
Instructed by : Frost Attorneys
[Mr N. Frost – 021 782 4928]
C/o C & A Friedlander
[Ref. S. Heath – 021 487 7900]