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[2015] ZAWCHC 64
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Vorster NO v PM Security And Crime Prevention (Pty) Ltd T/A Hermanus (A313/2014) [2015] ZAWCHC 64 (20 May 2015)
THE
HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE DIVISION, CAPE TOWN)
Case
No: A313/2014
DATE:
20 MAY 2015
In
the matter between
LODEWIKUS
BARTHOLOMEUS VORSTER NO as trustee of the
ELMA
VORSTER
KINDERTRUST
................................................................................
APPELLANT
And
PM
SECURITY AND CRIME PREVENTION (PTY) LTD
T/A
CHAS EVERITT
HERMANUS
.............................................................................
RESPONDENT
Coram
:
ERASMUS & ROGERS JJ
Heard:
8 MAY 2015
Delivered:
20 MAY 2015
JUDGMENT
ROGERS
J (ERASMUS J concurring):
[1]
The appellant (‘the Trust’) is
the first defendant and the respondent (‘CEH’) the
plaintiff in an action
pending in the Hermanus Magistrate’s
Court in which CEH claims estate agent’s commission. The second
defendant (‘Vorster’)
is an attorney and the sole trustee
of the Trust. The Trust raised two special pleas which by agreement
were determined separately
from the merits. The court a quo dismissed
the special pleas. The Trust appeals against the dismissal. Mr Ulyate
appears for the
Trust and Mr AM Heunis for CEH.
[2]
The summons was issued in June 2010. CEH,
which conducts business as an estate agency under the name Chas
Everitt Hermanus, alleges
in its particulars of claim that during
2008 the Trust appointed CEH to find a buyer for a property in
Hermanus. On 8 July 2008
a deed of sale was concluded between the
Trust and a Mr JI van der Merwe (‘Van der Merwe’) in
terms whereof the Trust
sold the property to Van der Merwe for a
price of R1,905 million. The sale was unconditional. CEH alleges that
it was the effective
cause of the sale.
[3]
The particulars of claim summarise the
provisions of clauses 9(a), 9(b), 9(c) and 10(a) of the deed of sale,
a copy of which was
annexed to the particulars of claim. The deed of
sale is a standard document bearing the Chas Everitt logo. It is
convenient to
quote clauses 9, 10 and 11 in full:
‘
AGENTEKOMMISSIE
9
a)
Die
verkoper sal die agentekommissie van 4,83%
[1]
(plus BTW) van die koopprys betaal aan die agent;
b)
Die agentekommissie is verdien en betaalbaar by nakoming van enige
opskortende voorwaarde waaraan hierdie ooreenkoms onderhewig
is (of
teen ondertekening van hierdie ooreenkoms as hierdie ooreenkoms nie
onderhewig is aan enige opskortende voorwaarde nie);
c) Indien hierdie
ooreenkoms regtens gekanselleer word as gevolg van die kontrakbreuk
van die koper sal die koper verantwoordelik
wees vir die betaling van
die agtentekommissie;
d) Indien die
deposit gehou word deur die agent sal die agent geregtig wees om die
kommissie van sodanige deposito af te trek onmiddellik
wanneer die
verkoper geregtig word op die opbrengs van sodanige deposito (hetsy
as gevolg van die feit dat die eiendom oorgedra
is aan die koper of
dat hierdie ooreenkoms regtens gekanselleer is of om enige ander
rede). Die agent sal geregtig wees op sy kommissie
indien hierdie
ooreenkoms gekanselleer word as gevolg van onderlinge ooreenkoms
tussen die koper en die verkoper en dit word op
rekord gestel dat in
sodanige geval sal die verkoper en die koper gesamentlik en
afsonderlik verantwoordelik wees vir die betaling
van sodanige
kommissie.
e) Die partye gee
hiermee onherroeplik opdrag aan die verkoper se aktevervaardigers:
i)
om die kommissie aan die agent te betaal uit enige deposito gehou
deur die aktevervaardiger onmiddellik nadat sodanige kommissie
verdien is;
ii)
om teen registrasie van oordrag van die eiendom enige kommissie wat
verdien is deur die agent wat nie reeds aan die agent oorbetaal
is
uit sodanige deposito aan die agent te betaal.
f)
Die bepalings van hierdie kommissie is bedoel as ‘n kontrak vir
die voordeel van die agent en mag afgedwing word deur die
agent. Die
agent aanvaar hiermee enige voordele aan hom toegeken in terme van
hierdie ooreenkoms.
VERSUIM DEUR
KOPER
10. Indien die koper
versuim om te voldoen aan enige van sy/haar verpligtinge ingevolge
hierdie ooreenkoms, insluitende versuim
om enige deposito te betaal
of waarborge te lewer binne die voorgeskrewe tydperk en in versuim
bly vir ‘n periode van 10
(tien) dae na die per versending
geregistreerde pos van ‘n kennisgewing waarin die koper versoek
word om sodanige versuim
reg te stel, sal die verkoper geregtig wees,
sonder benadeling van enige ander regte, ingevolge die wet en sonder
verdere kennisgewing:
a) om hierdie
ooreenkoms te kanselleer en die deposito betaal ingevolvge klousule 2
hiervan te weerhou minus agentekommissie en
BTW daarop sowel as enige
ander bedrae wat deur die koper betaal is hetsy as “rouwkoop”
of boete of as gelikwideerde
skadevergoeding of as ... [illegible]
ten opsigte van die benadeling wat deur die verkoper gely is soos
ooreengekom, as gevolg
van die koper se versuim of,
b) sodanige
skadevergoeding te verhaal as wat die verkoper kan bewys deur hom
gely is, in welke geval die verkoper geregtig sal
wees om die
deposito en betalings soos na verwys in klousule 10(a) hierbo in
trust te hou totdat die werklike bedrag van skadevergoeding
vasgestel
is en die verkoper sal daarna geregtig wees om enige skadevergoeding
af te trek van sodanige bedrae gehou in trust;
c) om nakoming van
die bepalings hiervan te eis insluitende betaling van die volle
balans van die koopprys uitstaande op datum van
die koper se versuim
soos bovermeld.
ALGEMENE
DISPUUTOPLOSSING
11. Indien enige
dispuut of klagte voortspruit uit of ten opsigte van hierdie aanbod
om te koop insluitende die geldigheid daarvan,
uitleg daarvan,
kontrakbreuk, beÏndiging of voorgestelde kanselasie daarvan, kom
alle partye hiertoe ooreen om deel te neem
aan mediasieverrigtinge
voor aanvangs van litigasie of die lê van ‘n klag by
enige regulerende liggaam. Dispute sal
insluit enige voorstelle
gemaak deur enige party ten opsigte van die verkoop, koop,
finansieringvoorwaardes of ander aspek van
die eiendom insluitende
enige aantuigings van versteking, wanvoorstelling of nalatigheid. Die
bemiddelaar sal ‘n persoon
wees soos ooreengekom tussen die
partye hiertoe of by gebrek aan sodanige ooreenkoms ‘n persoon
genomineer deur die Instituut
van Eiendomsagente van Suid-Afrika. Die
kostes van sodanige mediasie sal gedra word deur die partye in gelyke
dele.’
[4]
Clause 21 states that the commission shall
be R92 105,26 plus VAT of R12 894,74, totalling R105 000.
It appears likely
that, in order to clinch the sale at a figure
yielding R1,8 million net of commission for the Trust, CEH agreed to
limit its commission,
inclusive of VAT, to R105 000, which
generated an ex-VAT commission of R92 105,26. This was then
expressed in clause
9(a) as a percentage of the purchase price,
rounded down to two decimal points (4,83%).
[5]
On the last page of the deed of sale
provision is made for signature by the buyer, the seller and the
agent. Immediately above the
space for the agent’s signature
are the words:
‘
Die
voordele ten gunste van en wat toekom aan die agent in hierdie
ooreenkoms word hiermee aanvaar.’
The deed was duly
signed by Van der Merwe and on behalf of the Trust. There was no
signature on behalf of CEH.
[6]
CEH alleges that Van der Merwe paid the
deposit of R190 500 to Vorster, who was the conveyancer
nominated in the deed of sale.
On 14 November 2008 the Trust
cancelled the sale because of Van der Merwe’s failure to
perform. CEH requested Vorster to
pay CEH’s commission of
R105 000, to which it was entitled in terms of clause 9, from
the deposit. Van der Merwe gave
written authority for this to be done
and gave instructions that on no account should his deposit be paid
over to the Trust. By
letters dated 18 November 2008 and 2 December
2008 CEH’s attorneys requested an undertaking from Vorster that
he retain the
deposit pending further agreement or a court order. In
a letter dated 3 December 2008 Vorster stated that he would reply in
full
in due course, adding
‘
In
the meantime and probably for at least the next month or two, the
amount that your client lays claim to will be retained on investment
in trust as part of the deposit for the purpose as provided for in
the deed of sale and not at the instance of your client or in
terms
of the purchaser’s instructions’.
Without there
apparently having been any further developments, Vorster on 15
January 2009 notified CEH’s attorneys that he
had released the
full deposit to the Trust. CEH alleges that his conduct in so doing
was unlawful.
[7]
On these grounds CEH seeks payment from the
Trust and Vorster jointly and severally in the sum of R100 000.
(CEH abandoned
R5000 of its claim in order to bring the matter within
the jurisdiction of the magistrate’s court.)
[8]
Following
an unsuccessful application for summary judgment, requests for
further particulars and amendments to the particulars of
claim, the
Trust delivered its plea on 30 November 2011.
[2]
The two special pleas are in summary the following: (a) CEH does not
have locus standi because it failed to accept the benefits
conferred
on it by the deed of sale and thus did not become a party to the
agreement. CEH’s reliance on the agreement can
therefore not be
sustained. (b) Alternatively, CEH failed to refer the dispute to
mediation as required by clause 11 or to
invite the defendants to
mediation. Its action is thus premature. On these alternative bases
the Trust prayed for the dismissal
of CEH’s claim with costs.
[9]
The special pleas were argued on 29
November 2013. Why it took so long does not appear. The magistrate
delivered an ex tempore judgment
on 4 April 2014. After summarising
the two special pleas, the magistrate said that it was of cardinal
importance that before the
deed of sale was signed an oral agreement
of mandate was concluded between CEH and the Trust and that pursuant
to the oral agreement
CEH brought the Trust and Van Der Merwe
together. The oral mandate, he said, was partially incorporated into
the deed of sale.
The oral agreement and deed of sale were
nevertheless separate contracts. In terms of the oral mandate CEH was
entitled to commission
by bringing about a successful sale. The fact
that CEH did not sign the deed of sale did not have the effect of
depriving CEH of
its agreed commission. It also followed that CEH was
not bound by any of the terms of the deed of sale apart from the term
relating
to commission. The magistrate accordingly dismissed the
special pleas.
[10]
The special pleas were argued without any
evidence being led, presumably on the basis that the facts pleaded by
CEH had to be assumed
as correct for purposes of the special pleas. I
do not think that this was an altogether satisfactory process. The
question whether
CEH accepted the benefits of clause 9 is a factual
one. Although the deed of sale made provision for the agent to
indicate acceptance
by way of signature, I do not think the deed on a
proper interpretation stipulates that this is the only way in which
the benefits
of clause 9 could validly be accepted.
[11]
CEH did not expressly plead that it
accepted the benefits of clause 9. However, CEH’s invocation of
clause 9 of the deed of
sale necessarily implied that it had accepted
the benefits thereof. On 15 November 2010 the Trust requested further
particulars
to CEH’s particulars of claim for purposes of
pleading thereto. Although the Magistrates’ Court Rules were
substituted
with effect from 15 October 2010 in a manner which no
longer permits the requesting of such particulars (Rule 16 now
contains similar
provisions to Rule 21 of the Uniform Rules of Court
for the requesting of trial particulars), these further particulars
were requested
under the old regime, presumably on the assumption
that pre-pleading particulars could still be requested in terms of
the old rule
16 in respect of proceedings instituted before 15
October 2010. CEH furnished further particulars on 10 March 2011.
These further
particulars were, in accordance with the old regime,
part of CEH’s pleadings (
MacDonald
Forman & Co Ltd v Van Aswegen & Another
1963
(4) SA 735
(O) at 737A-B). Concerning para 10 of the particulars of
claim, which summarised the terms of clause 9 of the deed of sale,
the
Trust asked who the parties to the annexed deed of sale were. CEH
replied that the parties were CEH, the Trust and Van Der Merwe.
This
again necessarily implies that CEH accepted the benefits of clause 9.
[12]
If the first special plea had to be
adjudicated on CEH’s version, which included all allegations
necessarily implied by the
express allegations, the first special
plea was bound to fail. It strikes me as inherently probable that CEH
did by conduct accept
the benefits of clause 9. The deed of sale was
CEH’s standard contract. CEH was the agent which brought the
parties together
and obviously furnished them with the standard deed.
The handwritten alteration to the rate of commission in clause 9, and
the
insertion of the amount of commission in clause 21, must have
occurred after discussion between the Trust and CEH. CEH pleaded that
it requested Vorster (who was the nominated conveyancer) to deduct
the commission of R105 000, to which CEH was entitled in
terms
of clause 9, from the deposit and that on 10 July 2008 Vorster wrote
to CEH thanking it for the instruction to effect transfer
and stating
that he would make provision for the payment of CEH’s
commission of R105 000 on date of transfer. This letter
was
attached to the particulars of claim. Although the deferral of
payment to date of transfer was not strictly in accordance with
clause 9(b), the amount of the commission accorded with the
commission specified in clause 9(a) read with clause 21.
[13]
However, and even if one assumes that CEH
did not properly allege that it accepted the benefits of clause 9, or
if one assumes that
a positive finding in that regard could not be
made in the absence of evidence, the first special plea was
nevertheless in my opinion
correctly dismissed. What the Trust sought
by way of the first special plea was the dismissal of CEH’s
claim. This was not
an exception on the basis that the particulars of
claim were vague and embarrassing or lacked allegations to sustain a
cause of
action. Had an exception been taken and granted, CEH would
in the ordinary course have been granted leave to amend its
particulars
of claim so as to make specific allegations regarding the
acceptance of the benefits of clause 9 (see
Group
Five Building Limited v Government of the Republic of South Africa
(Minister of Public Works and Land Affairs)
[1993] ZASCA 4
;
1993
(2) SA 593
(A) at 602D-604A;
Constantaras
v BCF Foodservice Equipment (Pty)
Limited
2007 (6) SA 338
(SCA) paras
30-33).
The dismissal of CEH’s claim
could only have followed from the first special plea if CEH had no
right to claim commission
except by having accepted the benefits of
clause 9.
[14]
In
my view, CEH’s particulars of claim, as amplified by its
further particulars, sufficiently make out a case for the recovery
of
the commission even if one assumes in favour of the Trust that CEH at
no stage accepted the benefits of clause 9. CEH pleaded
the
conclusion of an oral mandate and the fulfilment of its mandate by
being the effective cause of the sale. The deed of sale
as annexed to
the particulars of claim was on its face unconditional. In reply to
various questions in the request for further
particulars, CEH alleged
that the mandate had required it to find a willing buyer, that Van
der Merwe was a willing and able buyer
and was able to pay the
purchase price, and that CEH had complied with all its obligations in
terms of the mandate.
[3]
In
accordance with ordinary principles, these allegations are sufficient
to sustain a claim for commission, regardless of the subsequent
cancellation of the sale (
Brayshaw
v Schoeman & Andere
1960
(1) SA 625
(A) at 630C-D;
Commercial
Business Brokers v Hassen
1985
(3) SA 583
(N) at 585G-H;
Vesta
Estate Agency v Schlom
1991
(1) SA 593
(C) at 597H-J
;
The
Law of South Africa
2
nd
Ed Vol 9 para 580). As to the amount of commission, it is clearly
CEH’s case that the rate inserted into clause 9(a) and
the
amount inserted in clause 21 were agreed with the Trust. The fact
that CEH did not accept the benefits of clause 9 does not
entitle one
to close one’s eyes to the obvious fact that the amount of
commission recorded in the deed of sale corresponded
with what had
been agreed between CEH and the Trust. (Of course, whether Van der
Merwe was in truth a willing and able buyer, and
thus whether CEH
fulfilled its mandate, is an issue to be decided when the merits are
tried.)
[15]
When the matters set out in the preceding
paragraph were put to Mr Ulyate he conceded their force and proceeded
to deal with the
second plea.
[16]
The second plea presupposes that as a fact
CEH accepted the benefits of clause 9. From this premise, the Trust
argues (i) that
clause 11, which requires pre-litigation
mediation, is not limited to disputes between buyer and seller but
includes disputes between
the agent and one or both of the other
parties and (ii) that because CEH did not invite the Trust to
participate in mediation,
the summons was premature.
[17]
As already explained, the first special
plea can be decided against the Trust without finally determining
whether or not CEH accepted
the benefits of clause 9. It might thus
be said that the premise for the alternative plea has not been
established. However, I
think it preferable to deal with the matter
on the assumption that CEH indeed accepted the benefits of clause 9.
[18]
There is force in Mr Ulyate’s
submission that clause 11 is wide enough to encompass disputes
between CEH and the Trust regarding
the implementation of clauses 9
and 10. The words ‘
alle partye’
in clause 11 are on their face unlimited in scope
and could include an agent to the extent that the latter has acquired
rights under
the agreement. However it is unnecessary finally to
decide this question of construction. I shall assume in favour of the
Trust
that clause 11 would in the ordinary course have required CEH
to propose mediation before instituting action against the Trust.
[19]
On this assumption, the question is whether
on the facts of this particular case CEH should be non-suited because
it failed to act
in accordance with clause 11. In my view the answer
is no. Prior to the institution of action the Trust and Vorster
already adopted
the position that CEH had not accepted the benefits
of clause 9 and therefore had not become a party to the deed of sale.
This
was stated in a letter of 12 August 2009 which Vorster attached
to his affidavit in opposition to the application for summary
judgment
and which he wrote in response to letters of demand written
by CEH’s attorneys to the Trust and Vorster on 31 July 2009.
[20]
The position is thus that the Trust was
denying that CEH was a party to the very contract which called for
mediation. This was a
position which the Trust maintained when it
filed its plea. In the circumstances, can the Trust be heard to say
that CEH should
nevertheless have invited the Trust to participate in
mediation as a precondition for issuing summons? I think not. When
one of
the parties to a contract repudiates, the other is not obliged
to do things under the repudiated contract which would amount to
an
exercise in futility or an idle gesture (
Moodley
& Another v Moodley
1990 (1) SA 427
(D) at 431C-I;
Comwezi Security Services
(Pty) Ltd & Others v Cape Empowerment Trust Ltd
[2014]
ZASCA 22
paras 11-12). Thus, for example, a party who has repudiated
a contract cannot, once proceedings have been instituted, take the
point that the contract required, as a precondition for the taking of
some further step, that a notice to remedy the default should
have
been given (
Taggart v Green
1991
(4) SA 121
(W) at 124D-126G;
South
African Forestry Co Ltd v York Timbers Ltd
2005
(3) SA 323
(SCA) para 37). It would have been an exercise in futility
for CEH to have invited the Trust to participate in a mediation
procedure
prescribed in an agreement in circumstances where the Trust
denied that CEH was a party to the agreement.
[21]
The magistrate was thus right to dismiss
the special pleas. The appeal is dismissed with costs.
ERASMUS
J
ROGERS
J
APPEARANCES
For
Appellant Mr VH Ulyate
Vaughan
Ulyate & Associates
Unit
5, Canal Edge 4
Tyger
Waterfront
Bellville
For
Respondent Mr AM Heunis
Instructed
by Heunis Law Group
10
Huising Street
Somerset
West
[1]
The
standard contract made provision for 7,5%. In the signed deed of sale
this was scratched out and replaced first with 5% and
then with
4,83%. The final handwritten figure is partially cut off in the copy
attached to the particulars of claim and was thus
thought to be
4,85%. It appears, however, from clause 21 that the figure must be
4,83%.
[2]
Vorster
as second defendant delivered his plea in June 2011. He did not
advance any special pleas.
[3]
See
the paras 3.4, 5.1, 5.2, 5.3, 5.8 and 5.9.1 of the request and the
corresponding replies.