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[2015] ZAWCHC 77
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Varicor Nineteen (Pty) Ltd T/A BP Atlantic v Marais N.O and Others (7992/2012) [2015] ZAWCHC 77 (22 May 2015)
IN THE
HIGH COURT OF SOUTH AFRICA
WESTERN
CAPE DIVISION, CAPE TOWN
CASE NO:
7992/2012
DATE: 22
MAY 2015
In the
matter between:
VARICOR
NINETEEN (PTY) LTD t/a BP
ATLANTIC
.........................................................
Plaintiff
And
HENDRIK
CHRISTOFFEL MARAIS
N.O
.................................................................
First
Defendant
CHRISTINA
SUSANNA MULLER
N.O
..................................................................
Second
Defendant
CHRISTINA
SUSANNA
MULLER
............................................................................
Third
Defendant
JUDGMENT
DELIVERED
ON 22 MAY 2015
GAMBLE,
J:
INTRODUCTION
[1]
The Southern Cape town of Albertinia (which
lies about 60 kilometres to the west of Mossel Bay) is well known for
the cultivation
of aloes and the manufacture of aloe-related
products. In addition, it is one of the few places in the
Republic where the
building trade is able to source good quality
thatch for roofing. The abundance of
restio
grasses (locally called “
dekriet
”)
in the area has seen trade in thatch grow significantly over the
years.
[2]
The third defendant, Ms Susanna Muller
(“
Muller
”)
is evidently well-known in the town. Until 1994 she was the
Station Commander at the local police station and after
she resigned
from the SA Police Service began trading in thatch, initially as a
sole proprietor. The first defendant Mr Hendrik
Marais
(“
Marais
”)
and Muller cohabited from about 1994 before marrying in 2006.
[3]
Because thatch was sourced far and wide in
the district transportation was an issue. Both Muller and
Marais owned a number
of large trucks with which the harvested thatch
was collected and transported to its ultimate destination. Often this
involved
conveyance up to Gauteng and in such cases the otherwise
empty trucks were utilised to transport loads of coal back down to
the
coast.
[4]
Muller and Marais decided to pool their
resources in 1997 and formed a trust known as the Albertinia Dekriet
Trust (“
the Trust
”)
for purposes of conducting their joint endeavour. Muller
testified that they each effectively held a 50% interest
in the
Trust, of which they were both trustees and, in respect whereof there
was joint decision-making and management of the business.
The
decision to form a trust was evidently made on the basis of legal
advice from attorneys in Mossel Bay and was designed to provide
tax
efficiency. The Trust was also intended ultimately to be for
the benefit of Marais and Muller’s respective children
from
previous marriages.
[5]
The use of a fleet of trucks to transport
thatch of course necessitates the consumption of large quantities of
diesel. Prior
to the formation of the Trust Muller made use,
firstly, of a “
fleet card
”
for refuelling her fleet of trucks. This enabled the vehicles
to fill up anywhere in the Republic with any brand of
fuel.
[6]
The plaintiff company trades as BP Atlantic
(“
BPA
”)
from premises,
inter alia
,
in the industrial area at George. BPA has its head office in
Somerset West and was set up by Messrs Esbach senior and junior
to
distribute petroleum products (mainly diesel) on behalf of BP, a
large multi-national petroleum company which operates throughout
South Africa. BPA has seven depots in the Western Cape from
which bulk diesel is sold. It appears that a bulk user
can
purchase diesel at such a depot where vehicles’ tanks are
filled. In addition BPA will deliver bulk diesel to a
user’s
premises e.g. to a farmer who has installed a storage tank from which
vehicles and farm implements may be filled.
For the sake of
clarity, I should add that BPA is in no way related to BP South
Africa, but functions as an accredited distributor
of BP products.
[7]
Mr Cornelius Otto (“
Otto
”)
who testified on behalf of BPA told the court that he worked as a
sales representative for the plaintiff. Having been born
in
Albertinia he knew Muller well – for more than 40 years –
and had served under her as a police reservist for a number
of
years. At one stage they were also house friends.
[8]
In the process of looking for new customers
Otto approached Muller shortly after he joined BPA in August 2001. At
that stage there
was no diesel storage tank on the commercial
premises at 14 Nywerheidslaan in Albertinia – the premises at
which Muller had
for years conducted her sole proprietorship and from
which the Trust also later traded in thatch. Otto was looking
to expand
the business of BPA and suggested to Muller that she
purchase diesel in bulk from BPA so that she could refuel her
vehicles on
the premises. Muller was taken by the idea and Otto
agreed to arrange for the delivery of a supply tank.
[9]
The evidence reveals that initially Muller
was supplied with a 9 000 litre diesel supply tank so as to refuel
her vehicles.
It transpired that at a later stage BPA wanted to
open a fuel depot which would be open to the public for general
refuelling, for
Muller’s own vehicles and to other local
commercial clients. Such a commercial operation necessitated a
much larger
storage facility and two tanks holding 23 000 litres each
were referred to in evidence by Otto. A tank of that volume
would
ordinarily be installed with an electric pump similar to those
found at ordinary service stations, from which the metering of the
fuel could be verified.
[10]
Otto said that on 3 September 2001 he and
Muller concluded the deal for the supply of bulk diesel to the
Trust. It is that
agreement, and its subsequent implementation,
which forms the basis of this litigation and to which I shall return
later.
COMMENCEMENT OF
LITIGATION
[11]
From late 2001 onwards BPA delivered
petroleum products to the premises occupied by the Trust and BPA’s
account was paid by
way of direct payments from a bank account
controlled by Muller on behalf of the Trust. For reasons which
were not fully
explained, the Trust’s account with BPA later
fell into arrears with the outstanding balance increasing
progressively.
[12]
During the period July to October 2008, BPA
sold and delivered to the premises petroleum products, the balance
whereof after payments
totalled more than R7 million.
After its demand for payment in early March 2011 was ignored, BPA
issued summons on 13
April 2011 against the Trust for payment of the
sum of R7 million together with agreed interest at the rate of 2.5%
per month and
costs on the scale as between attorney and own client.
[13]
Similar claims were advanced against Muller
jointly and severally with the Trust, on the strength of a suretyship
which she had
executed in favour of BPA on behalf of the Trust on 3
September 2001.
[14]
The Trust’s initial response to the
summons was relatively uncomplicated. It contended, firstly,
that any and all amounts
due by the Trust to BPA had been settled
“
long ago
”
[1]
.
Secondly, it alleged that in terms of an oral agreement concluded in
2002 between BPA and Muller, all diesel delivered to
the premises
between 2002 and 2008 was delivered to Muller personally.
OVERVIEW OF THE
EVIDENCE
[15]
By agreement between counsel , Mr Maree for
BPA and Mr van Riet SC for only the Trust (not Muller), the quantum
of BPA’s claim
was to stand over for later determination.
The issue to be decided was with whom BPA contracted and what the
terms of that
contract in respect of the supply of diesel were.
Otto testified for BPA, while Muller was the sole witness for the
Trust.
In addition, BPA called Ms Esther Oosthuizen its former
head of administration and from December 2000 its area manager for
George.
It also called its financial manager, Mr Schalk van
Heerden, and Ms Agnes Hocky, the Trust’s erstwhile debtors’
clerk.
Finally it called two of the Trust’s former
employees – Ms Annatjie Conradie, an admin clerk employed by
the Trust
to attend to petroleum sales and Ms Drieka Harker, who
worked as a general clerk and administrative manager on the thatch
side.
[16]
The evidence is a matter of record and I do
not intend to recite or analyse the individual testimony. The
gist of the relevant
evidence will appear from the analysis and
discussion of the case.
THE PLAINTIFF’S
CAUSES OF ACTION
[17]
The particulars of claim were prepared by
BPA’s attorneys in George and are, to say the least, very
elementary. With the citation
of Marais and Muller as the first and
second defendants in their capacities as trustees, and Muller as the
third defendant in her
personal capacity, the following allegations
are made by the plaintiff.
“
6.
On or about 3 September 2001, the Defendant applied for credit
facilities from the Plaintiff for the purpose of purchasing petroleum
products from time to time on credit.
7.
The Plaintiff agreed to grant the Defendant credit facilities for
petroleum products, which the Defendant intended to purchase
from the
Plaintiff in accordance with the Plaintiff’s Terms and
Conditions.
8.
A copy of the Credit Application Form incorporating the Plaintiff’s
Terms and Conditions is annexed hereto marked annexure
“A”.
9. In terms of the Plaintiff’s Terms and Conditions –
9.1 the purchase price of all goods purchased are (sic) payable
strictly 30 (thirty) days from the date of the said purchase;
9.2
all overdue amounts shall bear interest at 2.5% per month or part
thereof;
9.3
all costs incurred in any action against the First Defendant shall be
paid by the First Defendant on an attorney and own client
scale and
(sic) collection commission
”
.
It immediately
strikes one that no specific allegation is made by BPA regarding the
conclusion of an agreement for the sale and
delivery of goods ,
whether oral or written, tacit or implied.
[18]
The suretyship executed by Muller is
introduced thus in the particulars of claim:
“
10.1
On 3 September 2001 the Third Defendant bound herself jointly and
severally as surety and co-principal debtor in solidium
with the
First and Second Defendant, unto and in favour of Plaintiff for the
due and punctual payment and performance by the First
and Second
Defendant of all debts and obligations of whatever nature and
howsoever arising which First and Second Defendant may
now or, in the
future owe to the Plaintiff
”
.
[19]
The supply and delivery of goods is alleged
as follows:
“
11.
During the period of (sic) July 2008 to October 2008, the Plaintiff
sold and delivered petroleum products to the Defendant at
the
latter’s special instance and request, the total outstanding
balance of which amounted to R7 million
”
.
[20]
The relief claimed is for judgment “
against
the First, Second and Third Defendants, jointly and severally, the
one paying the other to be absolved
”
.
[21]
The plea filed on behalf of the three
defendants by their attorney in Mossel Bay is no beacon of clarity
either.
21.1
In response to paragraph 6 of the
particulars of claim the following is alleged:
“
2.1 Die
Verweerders dra kennis van hierdie ooreenkoms.
2.2 Die
Verweerders voer aan dat hierdie ooreenkoms niks te doen het met
hierdie eis van die Eiser nie, en stel die Eiser tot die
bewys
daarvan.
2.3 Die
Verweerders voer verder aan dat alle aankope van petroleumprodukte
(diesel) gemaak deur die Albertinia Dekriet Trust in
terme van die
aansoek om kredietfasiliteite gemerk aanhangsel “A” reeds
lank gelede deur die Albertinia Dekriet Trust
ten volle vereffen is
”
.
21.2
There is no reply to the plaintiff’s
paragraph 7 which, in terms of rule 22(3) is deemed to be admitted by
the Trust. In respect
of paragraph 8 the defendants say the
following:
“
3. Die
Verweerders neem kennis hiervan
”.
21.3
Regarding the plaintiff’s paragraph
9, the defendant say:
“
4. Insover
dit betrekking het op aanhangsel “A” word dit erken
”
.
21.4
As to the execution of the suretyship
alleged by BPA in paragraph 10 of the particulars, the defendants
allege:
“
5.
Insover dit betrekking het op aanhangsel “A”, en die
aankope deur die Albertinia Dekriet Trust gemaak in terme van
die
kredietfasiliteite deur die Eiser’s (sic) verskaf, word dit
erken
”.
[22]
The defendants reply to the allegations
made by BPA in paragraph 11 regarding supply and delivery is somewhat
more involved:
“
6.1 Dit word ontken, en word die Eiser
tot die bewys daarvan gestel.
6.2 Die Verweerders voer aan dat die Eiser in terme van ‘n
mondelinge ooreenkoms aangegaan tussen die Eiser en ene Christina
Susanna Muller h/a Albertinia Diesel Depot gedurende 2002, diesel aan
gemelde Christina Susanna Muller gedurende the tydperk 2002
tot
Oktober 2008 verkoop en gelewer het.
6.3 Die Verweerders voer aan dat bogemelde mondelinge ooreenkoms
niks te doen het met die kredietaansoek gemerk aanhangsel “A”
nie, en stel die Eiser tot die bewys daarvan.
7. In die alternatief, sou die Agbare Hof bevind dat daar wel ‘n
ooreenkoms was tussen die Eiser en die Verweerders, soos beweer
word,
en wat nogsteeds ontken word, dan voer die Verweerders aan dat:
7.1 Dit ontken word dat die Eiser gedurende
Julie tot Oktober 2008 diesel ten bedrae van R7 miljoen aan die
Verweerders gelewer
het; en
7.2 Alle rekeningstate wat deur die Eiser aan
die Verweerders gelewer is alreeds vereffen is;
en word die Eiser tot die bewys hiervan gestel
.
“
[23]
It
seems then that although the plaintiff did not state precisely which
of the defendants had applied for a credit facility in December
2001,
both the Trust and Muller understood the plaintiff to allege that it
was in fact the Trust that was initially BPA’s
debtor.
[24]
BPA sought trial particulars in relation to
the allegations made in the defendants’ plea by requesting
inter alia
the following:
24.1
Where, and by whom on behalf of BPA, the
oral agreement of 2002 pleaded in paragraph 6 of the plea was
concluded. The defendants
replied that the date originally
pleaded was incorrect and said that the agreement was in fact
concluded by Otto on behalf of BPA
in 2005. The defendant
thought (“
vermoed
”)
that the agreement was concluded at the Albertinia premises of the
Trust;
24.2
When the defendants alleged that BPA ceased
to deliver petroleum products to the Trust and why? The
defendants’ case
was that the Trust never traded in petroleum
products but that deliveries were made to a business called “
the Albertinia
Diesel Depot” ( hereinafter “the Depot”)
which was operated by Muller (presumably it intended to allege as a
sole proprietor);
24.3
Whether the Trust disposed of the business
and, if so, to whom? The defendants said that in October 2008
Muller sold the Depot
to a close corporation called Vanrob and that
she personally informed Esbach snr thereof;
24.4
Whether the defendants admitted that in
March 2002 the Trust concluded a written supply agreement (a copy
whereof was attached)
with BPA? This allegation was expressly
denied by the Trust;
24.5
In the event that the supply agreement was
not admitted, who purported to sign same on behalf of the Trust,
cited in the agreement
as “
the
User
”? The defendants said
that they did not know;
24.6
In respect of the allegation made in
paragraph 7 of the plea regarding payment, when and by whom same was
made? The defendants
said that this probably (“
waarskynlik
”)
was made by the Trust in 2005 but went on to allege that it could not
vouch for the accuracy of the allegation.
[2]
[25]
BPA then responded to the defendants’
allegations by way of a replication in which it said the following:
25.1
it denied that any agreement was entered
into with Otto in terms whereof diesel would be sold and supplied to
Muller;
25.2
in the alternative, that Otto was not
authorised by BPA to conclude such an agreement with Muller.
[26]
BPA went on in its replication to plead an
estoppel as follows. To the extent that it may be found, as
alleged by Muller,
that from 2005 (or whichever date she alleged) she
intended to purchase product from BPA, not on behalf of the Trust but
on behalf
of the Albertinia Diesel Depot of which she was the sole
proprietor, she was estopped from relying on such an allegation for
the
following reasons:
26.1
at all material times Muller misrepresented
to BPA that all of her purchases were made on behalf of the Trust and
not the Depot;
26.2
the misrepresentation occurred when Muller
failed to inform BPA that she was no longer purchasing product from
it on behalf of the
Trust but on behalf of her sole proprietorship,
the Depot;
26.3
Muller acted negligently in not disclosing
to BPA, as she was reasonably required to do, the alleged change in
the identity of the
purchaser;
26.4
BPA acted to its detriment by continuing to
supply product, whereas had it known it was no longer supplying to
the Trust, it would
have ceased supplying in light of the fact that
Muller was not as creditworthy as the Trust, which operated a
successful business.
[27]
There appeared to BPA to be some ambiguity
in the defendants’ earlier trial particulars and in November
2013 it sought further
and better trial particulars. These
elicited the following points of clarification from the defendants:
27.1
Muller purchased product from BPA from the
inception of the Depot by personally (or through her staff) placing
telephonic orders
with the plaintiff;
27.2
the Diesel Depot was established as a
separate business to make profit;
27.3
the Trust only ran a transport business;
27.4
the Trust did not sell its business but in
2008 Muller disposed of the Depot;
27.5
Muller informed Esbach snr and Otto of the
fact that the Depot was a sole proprietorship;
27.6
payment to BPA was made by, and in the name
of, Albertinia Diesel Depot;
27.7
Muller also traded in thatch;
27.8
the Trust was registered for VAT and,
allegedly on the advice of the SA Revenue Service, its VAT number was
used for transactions
by both the Trust and the Depot, the latter on
the basis that diesel is zero rated for VAT, and further because sale
of the Depot
business was considered imminent.
[28]
After the furnishing of these further trial
particulars the defendants delivered an amendment to their plea,
which sought to introduce
a first alternative to the allegations made
in response to paragraph 11 of the particulars of claim. The
Trust alleged that
as the sole trustees of the Trust, Marais and
Muller were required to consider and reach consensus on the agreement
to purchase
petroleum products from BPA. To the extent that
Marais allegedly never knew of the agreement and was not consulted in
relation
thereto, the Trust alleged that the agreement was invalid
and unenforceable against it.
[29]
In April 2014 BPA duly amended its
replication in response to the amended plea by denying that Marais
did not consent as alleged
and in reply to the Trust’s
allegation that the transactions were not consented to by Marais, BPA
pleaded a further estoppel,
claiming that at all material times (as
far as it was concerned) the business of the Trust was effectively
conducted by Muller.
It was said that Marais permitted Muller
to so conduct the business of the Trust with BPA and, accordingly,
Muller and/or Marais
negligently represented to the plaintiff that
she alone was authorised to act on behalf of the Trust. In
light of the fact
that it believed that this representation reflected
the true position, BPA said that it acted to its detriment in dealing
only
with Muller when entering into sales of petroleum products, and
accordingly pleaded that Muller was estopped from relying on any
lack
of authority.
[30]
But the pre-trial jousting was not over
yet. At the commencement of the trial on 6 October 2014, BPA
sought to bolster its
replication by referring to clause 3.1.5 of the
Credit Application Form referred to in paragraph 8 of the particulars
of claim
(and attached thereto as annexure “A”) which is
to the effect that the person signing the document on behalf of the
debtor warranted that he/she was duly authorised to act on behalf of
the debtor and, in the event that such authority was subsequently
challenged, the signatory accepted personal liability in terms of the
agreement.
[31]
BPA therefore sought that Muller (
qua
trustee) be held personally liable for the Trust’s debts to it,
such liability to be in addition to her personal liability
in terms
of the suretyship she put up on behalf of the Trust.
[32]
Evidence was heard from 6 to 8 October 2014
and, at the request of the parties, postponed to 14 November 2014 for
argument.
At the conclusion of argument, Mr Maree indicated
that a further amendment to the replication would be forthcoming and
on 25 November
2014 a further allegation was made by BPA in which it
sought, in addition, to rely on the principle of
quasi-mutual
assent
. It is preferable to deal
with these allegations in the replication after I have considered the
evidence, since there is
extensive reference therein to the facts
arising from the evidence.
THE
ONUS
[33]
After various attempts at refinement of the
issues through the pleadings, the fundamental question is whether
diesel was delivered
at the Albertinia premises during the period
July to October 2008 in terms of an agreement with the Trust,
concluded between Otto
on behalf of BPA and Muller on behalf of the
Trust on 3 September 2001. The material terms of that alleged
agreement are
to be found in annexure “A” to the
particulars of claim.
[34]
Mr Maree accepted that BPA bore the onus to
establish that agreement. In the event that the Trust contended
for terms different
from those alleged by BPA in terms of that
agreement, the onus was on BPA to establish that the agreement did
not include those
terms as alleged by the Trust.
[3]
[35]
However, Mr Maree argued that the situation
under consideration did not fall into the
Topaz
Kitchens’
category. Rather,
he observed, the Trust contended that the agreement reflected in
annexure “A” had served its
purpose, i.e. the supply of
diesel to the business conducted by the Trust at the Albertinia
premises. To the extent that
Muller claims that diesel was
supplied to a different entity (her sole proprietorship called the
Albertinia Diesel Depot) on
different terms and conditions, it
was argued that she bears the onus of proof of establishing that
contract. To the extent
that Muller contends for an agreement
between other parties (a different debtor), she has set up a special
defence as contemplated
in
Pillay
[4]
,
and has attracted the onus of proof in respect of that agreement.
THE
EVIDENCE
[36]
Otto’s evidence established that
shortly after he started working for BPA (in September 2001), he was
looking for new business
for his employer. He approached his
life-long friend (and former police chief) to establish whether she
was interested in buying
quantities of bulk diesel with which to fuel
her trucks at Albertinia. Muller expressed an interest and she
was asked to
fill in a Credit Application Form, annexure “A”
to the particulars of claim.
[37]
The fact that Muller applied in that
document for credit in the amount of R20 000.00 in September 2001,
said Otto, demonstrated
that she contemplated needing relatively
limited quantities of fuel. In addition, he confirmed that
supply of a single 9000
litre storage tank to the Albertinia premises
in November 2001 (under the supply agreement) strongly supported the
fact that at
that stage the parties were
ad
idem
as to the precise nature of their
agreement – the supply of diesel with which to fuel the fleet
of trucks transporting thatch.
[38]
Otto was clear in his evidence that a depot
supplying diesel to both the fleet of the Trust’s trucks, other
customers and
the public in general would have required significantly
larger storage facilities than a 9 000 litre tank – of the
order
of 40000 litres or more.
[39]
Otto said that at a later stage BPA was
looking to expand its sales capability and that a depot in Albertinia
was its first venture
into the establishment of a number of privately
owned diesel depots which would supply its product to both existing
commercial
clients and to members of the public who wished to fill up
there. The witness was unable to fix a date for this expansion of the
Albertinia operation with any accuracy.
[40]
One fact is without doubt however –
the parties were
ad idem
that in September 2001 BPA concluded a supply agreement with the
Trust. Otto testified that he thereafter believed, at all material
times, that he (on behalf of BPA) was dealing only with the Trust.
“
HOF
:
… Die vraag was, soos ek dit verstaan, het julle ooit bulk
diesel aan Mevrou Muller in haar persoonlike hoedanigheid verkoop
of
was dit die heeltyd aan die Trust? Wat is u aantwoord?
- - - U Agbare,
dit was heeltyd aan Dekriet Trust
”
.
[41]
When the Albertinia depot was expanded to
accommodate the later sale of what I shall conveniently refer to as
“
bulk diesel
”,
Muller said the parties concluded a new agreement. In his
evidence in chief Otto was asked by counsel for the plaintiff
what
his comment was in regard to Muller’s claims of an oral
agreement concluded with her personally. He answered frankly
but inconclusively:
“
MNR
MAREE
: … die bewering oor
‘n mondelingse ooreenkoms waar u sou optree namens eiser vir
die verkoop van bulk diesel aan Muller
wat is u reaksie daarop?
Was daar so ‘n mondelingse ooreenkoms?
- - - Nie sover
ek weet nie. Ek is ontseker, dit is baie jare terug
”
.
[42]
Otto thereafter speculated as he attempted
to rationalise what had actually happened by referring to certain
probabilities:
·
“
As daar ‘n
mondelingse ooreenkoms was sou daar papierwerk ingevul gewees het …
”
;
·
“
Daar is geen mondelingse
ooreenkomste wat ek met hierdie kliënte aangegaan het nie …
”;
·
“
So ons sou, kon daaroor
gepraat het en ons kon daardeur besigheid doen …
”
.
[43]
Under cross-examination Otto’s
recollection regarding the conclusion of the bulk diesel agreement
appears to have improved
somewhat as he steadfastly clung to the
claim that there was one agreement with the Trust which lasted
forever and a day.
“
MNR
VAN RIET
: … nou dit in
aggenome verstaan ek u getuienis reg dat u net een kontrak vir die
lewering van diesel aan Mevrou Muller en/of
haar trust gesluit het en
dit was die aanvanklike November 2001 ooreenkoms met die Albertinia
Dekriet Trust soos deur haar verteenwoordig?-
-
Ja, u Edele.
En daardie
kontrak se terme het in plek gebly vir altyd daarna? - - -
Ja u Edele.
En die lewerings
ten opsigte waarvan die eiser nou eis gedurende Julie tot Oktober
2008 het ingevolge daardie kontrak met daardie
selfde terme geskied?-
- -
Ja, u Edele
”
.
[44]
And when given a reasonable opportunity by
counsel for the Trust to reflect on the correct position, Otto
waivered, then recanted,
and eventually demonstrated a complete lack
of certainty.
“
Nou gaan
ek vir u die kans gee om ‘n erkenning te maak. Die
erkenning is die volgende: Dat soos u daar staan weet
u dat
uself persoonlik later ‘n ander kontrak met haar aangegaan het
met heeltemal ander terme vir die lewering van bulk
diesel. U
weet dit soos u daar staan. Wat wil u daaromtrent s
ê
?
- - - Nee U Edele ek weet dit nie. So ek …
(tussenbeide).
U weet dit nie ?
- - - Ek weet dit nie. So as dit gebeur het dan is dit,
dan is dit baie jare terug. Ek weet dit
nie. Ek het nie
volgens my kennis het ek dit nie gedoen nie. Dit kan dalk wees,
ek weet nie. Dit is baie jare
terug.
U sê dit
kan dalk wees. U het dit twee maal ges
ê
in u getuienis in-hoof. Dit kan dalk wees. S
ê
(u) dat dit kan wees en u kan dit net nie onthou nie of s
ê
u dit het nie gebeur nie? … Ek het dit nie ges
ê
nie, u Edele. Ek het ges
ê
dit kan dalk wees. Dit is baie jare terug. Ek kan nie
alles onthou wat ek elke dag in my lewe gedoen het nie.
Ek doen
R400 miljoen se besigheid in ‘n jaar en ek kan nie elke oomblik
elke sent onthou nie
”
.
[45]
Mr van Riet SC debated with Otto the
discussions which led up to the decision to supply the Albertinia
premises with bulk diesel.
The witness explained the position
as follows:
“…
U
Edele, hierdie konsep van privaat depots was Mevrou Muller die eerste
persoon wat dit gedoen het vir ons maatskappy. Niemand
anders
het dit gedoen nie. En dit het gegaan oor Tuinroete Agri wat
nie dit, met ons die pad wou loop nie. Toe het
ons teen
Tuinroete Agri gegaan op daardie stadium en dit is die eerste persoon
met wie BP Atlantic dit gedoen het
”.
[46]
When asked whether the name “
Albertinia
Dekriet Trust
” was ever mentioned
in relation to the entity to be involved in the expansion of the
existing facility, the witness was,
once again, less than convincing.
“
MNR VAN
RIET
: Is ek nou reg, ek
het nou net vir u gevra, is die naam Albertinia Dekriet Trust of
enige komponent daarvan ooit gebruik
in die gesprek en u antwoord was
dit is 13 jaar gelede ek kan nie onthou nie. Is dit die regte
antwoord?- - - U Edele, as
dit ‘n ander naam was die dag dan
sou ek die dag gesê het maar daar moet die volgende papierwerk
gedoen word.
So het ek aanvaar dat dit Albertinia Dekriet Trust
is.
Vir die oomblik,
Mnr Otto, aanvaar ek dat u dit aanvaar het. My vraag is
heeltemal ‘n ander een. My vraag is nie
wat u gedink het
in u kop nie. My vraag is u loop in en u se hallo Sunet en u
maak van haar ‘n voorstel, is die woorde
Albertinia Dekriet
Trust of enige komponent daarvan ooit gebruik in daardie gesprek? - -
- Dit kan wees, U Edele. Dit
is 13 jaar terug.
Maar u kan nie
onthou nie en u kan nie sê dat dit gebruik is nie/ - - - Nee,
ek kan nie sê dit is gebruik nie
”
.
[47]
In fairness to Otto, Mr van Riet SC put it
to the witness that Muller herself could not recall whether she had
expressly said to
Otto at any time that the bulk diesel contract was
to be concluded with herself (as sole proprietor) rather than the
Trust.
[48]
This concession by counsel on behalf of
Muller
qua
trustee,
was directly at odds with the allegations made in paragraph 2.3(a)
and (b) of the Trust’s further trial particulars
(see paragraph
27.5 above). Whether Muller is, in view of this apparent change in
her version to be regarded as dishonest is one
thing. But, it
certainly is demonstrative of another concern. In light of the
fact that the witnesses were being asked
to recall events going back
10 years or more, their reliability was certainly a cause for
concern. The evidence on contentious
issues must therefore be
approached with the necessary caution.
[49]
In my view the evidence unequivocally
establishes the following:
49.1
From September/October 2001 until October
2008 BPA continuously delivered petroleum products (diesel and
lubricants) to the Albertinia
premises;
49.2
The parties were
ad
idem
that such diesel, as was initially
delivered by BPA at the premises with effect from late 2001, was to
be stored in a 9 000 litre
supply tank;
49.3
The diesel so delivered was for the account
of the Trust which was recorded as BPA’s debtor;
49.4
Some three or more years later BPA began to
deliver increased quantities of diesel to the premises. This required
the installation
of two larger storage tanks (23 000 litres each)
equipped with electric petrol pumps with metering devices;
49.5
The installation of the 23 000 litre tanks
could only take place after approval by the Western Cape Provincial
Environmental Affairs
Department had been obtained. A letter
placed before the court suggests that this process commenced around
January 2004;
49.6
BPA dealt throughout with Muller and her
staff members while Marais’ involvement in the business at the
premises was minimal;
49.7
BPA’s invoices and month-end
statements throughout the seven year period that products were
delivered in Albertinia reflect
the debtor as “
Albertinia
Dekriet Trust
”, or its shortened
form “
Albertinia Dekriet
”;
49.8
The only other documentation (aside from
the invoices and accounts) placed before the court relevant to the
parties’ contractual
arrangements (the application for credit,
the suretyship and the installation agreement), all reflect the Trust
as the debtor of
BPA;
49.9
When BPA started delivering bulk diesel in
Albertinia the monthly liability of the debtor increased
significantly due to the larger
quantities of fuel then being
despatched - from the R20 000 limit applied for by the Trust and
granted by BPA in 2001, to
amounts in excess of R3 million in 2006
and R6 million in 2007;
49.10
The purchase and/or terms relevant to the
increase in liability on the part of the debtor in respect of bulk
diesel delivery was
not recorded in writing at any time and it is
therefore impossible to establish exactly when the increase in supply
commenced.
Nevertheless, the documentation relevant to
delivery, billing and payment suggest that this was some time in the
first half of
2005;
49.11
All payments to BPA in respect of diesel
delivered in Albertinia from 2001 to 2007 were made from two bank
accounts (one with ABSA
in Albertinia and another with Standard Bank
in Mossel Bay) both of which were operated by the Trust;
49.12
From time to time during the period 2005 to
2007 faxes were sent to BPA in which the allocation of payments made
to it in respect
of the delivery of bulk diesel at Albertinia was
explained. The vast majority of these faxes were printed on the
letterhead
of “
Albertinia Diesel
Depot
”, whose telephone and fax
number were recorded as 082 735 1543. On one occasion such
an allocation was made on
the letterhead of the Trust whose telephone
number was said to be 028 735 1951 and the fax number recorded as 028
735 1543.
It is fair, therefore, to conclude that there were
two telephone lines and one fax machine on the premises.
Further it is
to be noted that on both letterheads the street address
and post office box number are identical.
[50]
In light of the aforegoing it is safe to
conclude that from 2001 to 2004 diesel was delivered by BPA for
consumtion by the Trust’s
trucks in the course of the
conveyance of thatch and coal. There is no issue that the Trust
was liable to BPA for these deliveries.
This accords with the
case as pleaded by both BPA and the Trust.
[51]
As already demonstrated, Otto’s
recollection about the change-over from the sale of diesel for the
Trust’s fleet of
trucks to the supply of bulk diesel is vague
and unreliable. What is however apparent therefrom, is that
around 2004/5 the
Trusts account with BPA was significantly beyond
the R20 000 limit agreed to in 2001. At that stage (2004/5)
Otto says he
handed the Trust’s account over to Esbach snr.
It appears that thereafter Otto had nothing more to do with the
management
of the account, which was entirely in the hands of Esbach
snr until May 2012 when he suddenly succumbed to a fatal heart
attack.
[52]
Muller testified that she recalled that the
23 000 litre tanks were installed towards the end of 2003 and
testified regarding the
necessity of having to obtain municipal
approval as her point of reference. Her recollection was
assisted by her referral
to the aforementioned documentation,
relevant to the procurement of environmental approvals dated January
2004. Muller went
on to say that Ms Annatjie Conradie, who
testified on behalf of BPA, was employed in February 2004 to assist
with the administration
of the bulk diesel Depot, and that a new bank
account with Standard Bank in Mossel Bay, which was to be used
exclusively for the
bulk diesel sales, was opened.
[53]
Muller also testified that the sale of bulk
diesel was conducted in the name of “
Albertinia
Diesel Depot
”. This fact is
corroborated by the documents bearing that description referred to
above in relation to payment allocations.
Muller also produced
financial statements prepared by a certain Johan Barnard, a tax
consultant and bookkeeper from Mossel Bay.
In respect of the
tax year 1 March 2002 – 28 February 2003, the financial
statements in the name of the Albertinia Dekriet
Trust appear to
record the Trust’s activities as the sale of thatch and the
conducting of a transport business, the total
turnover whereof
amounted to R5.9 million.
[54]
Barnard also prepared financial statements
for the tax year 1 June 2004 to 31 May 2005 in the name of
“
Albertinia Diesel Depot
”.
Those statements clearly demonstrate the business of the Depot as the
purchasing and supply of bulk diesel by an
entity with a turnover in
excess of R10.7 million.
[55]
All things considered then, there can be
little doubt that after the installation of the 23 000 litre tanks at
the Albertinia premises
in 2004, a business known as Albertinia
Diesel Depot was conducted on the Albertinia premises. For the
purposes of BPA’s
claim the question that logically arises is
whether the Depot was conducted by Muller as a sole proprietorship,
or whether it was
a distinct trading entity conducted by the Trust
alongside the established thatch and transport business?
[56]
In her evidence Muller testified that the
installation of the two larger tanks followed on discussions between
herself and Otto.
Her recollection was that this was towards
the end of 2003 or the beginning of 2004. As to ownership of
the Depot business,
Muller said the following in her evidence in
chief:
“
MNR VAN
RIET
: … Was daar enige
iets ges
ê
spesifiek uitdruklik oor wie die Depot sou bedryf?- - - U Edele,…
dit was absoluut Sunet Muller wat die Depot sou
bedryf.
Albertinia Dekriet Trust se naam was nie genoem nie en was nooit te
sprake gewees nie.
Maar,
en ek verstaan wat u sê, maar my verdere vraag is of iemand
ooit ges
ê
het onthou nou X
is die koper en Y nie? Is dit ooit so gestel of nie?- - - As u
bedoel of dit gestel is dat Albertinia Dekriet
Trust die koper is,
dit is nooit so gestel nie …
HOF
:
Nee, maar die vraag is anders. Het u spesifiek gesê
onthou Meneer Otto dit is nie meer ADT nie, dit is nou ADD? Dit
is
nou nie meer die Trust nie dit is ek in my persoonlikehoedanigheid
wat die depot gaan run? …. U Edele, Albertinia
Dekriet,
omdat Albertinia Dekriet Trust nooit te sprake was nie en ek ook
besigheid op my eie naam noem het ek aangeneem dit is
ek wat die
depot, omdat net met my gepraat is en nooit die Dekriet Trust se naam
genome is nie
”
.
[57]
It is noteworthy that Muller initially used
the verb “
aangeneem
”
(“
assumed
”)
in relation to her alleged proprietorship of the Depot, whereas later
in her evidence she stated in fairly unequivocal
terms that the Depot
was indeed run for her own account. Muller said that initially
she used an ABSA Bank account in Albertinia
in the name of the Trust
to conduct the business of the Depot: at that stage there was
no Standard Bank branch in Albertinia.
Later, she said, there
were two accounts: one at ABSA Bank in Albertinia in the name
of the Albertinia Dekriet Trust and
another at Standard Bank in
Mossel Bay in the name of Albertinia Diesel Depot. Copies of
bank statements of the latter reflect
that they were addressed to the
“partners”
[5]
of the business.
[58]
The witness demonstrated how payments were
made from the Trust’s ABSA account to the Standard Bank account
in settlement of
diesel supplied by the Depot to the Trust for use in
its vehicles. She was taken through Barnard’s financial
statements
and asked to explain certain types of expenses normally
associated with a trucking business. She also referred to
certain
correspondence on the Trust’s letterhead which
authorized certain of BPA’s other depots in the Western Cape to
supply
fuel to a limited number of the Trust’s trucks.
[59]
Muller pointed out that the Depot was sold
in late 2008 to a company known as “
Vanrob
(Pty) Limited
”. The statutory
notices relevant to this transaction were duly published and
reflected Muller as the owner of the business.
She also referred to a
number of documents relating to statutory approvals e.g. by the
Controller of Petroleum Products, all of
which reflected her as the
owner of the Depot.
[60]
When questioned as to the rationale for
conducting the business of the Depot as a sole proprietorship rather
than through the Trust,
Muller intimated that this was intended to be
conducted as her own business so as not to prejudice the interests of
the beneficiaries
of the Trust in the event that the Depot was not a
financial success. And, when asked why she did not raise with BPA the
fact that
all of its invoices after 2004 were incorrectly directed
for the attention of the Trust, rather than the Depot (as a sole
proprietor),
Muller claimed that she had on one occasion, fairly
early on in the Depot’s life, phoned an employee of BPA and
informed
her that the invoices and month-end statements incorrectly
reflected the Trust as its debtor whereas it should have been for her
account. When things were not corrected Muller said that she
decided to leave it at that.
[61]
Turning to the identity of the
representatives of BPA with whom she dealt, Muller maintained that
Otto was the person that she dealt
with throughout – from 2001
through to 2004. In particular, she said it was he who had
initiated discussions around
the expansion of the business to include
a depot of general sales of diesel. Muller acknowledged that
the opening of such
a depot necessitated new terms of supply and an
extension of credit limits and facilities, but she steadfastly
maintained that
she believed that Otto had the requisite authority to
negotiate these.
[62]
Muller said that in about 2006 the Depot’s
account with BPA was significantly in the red. She was
under pressure
to reduce it and was being let down by the clients of
the Depot who were paying late. There was clearly a severe cash-flow
crisis.
At that stage Muller said that she engaged directly
with Esbach snr for the first time, in an endeavour to resolve the
problem
which would have otherwise led to a shortage of supply from
BPA. Muller said that during those discussions she pertinently
informed Esbach snr of the fact that she was conducting the Depot
business as a sole proprietor but, it seems, Esbach snr did not
accept that to be the legal position.
[63]
However, the correspondence shows that as
early as 9 June 2005 Esbach snr wrote to “
Albertinia
Dekriet Trust
” regarding its
overdue account. In a letter addressed to Muller informally
[6]
,
Esbach snr put her to terms to clear all outstanding amounts at the
end of each successive month. The letter recorded that
he had
built up trust in Muller as a client to such an extent that he
expected her to confirm acceptance of the proposal by signing
the
letter.
[7]
[64]
This correspondence suggests that Esbach
snr regarded the Trust (and not Muller) as his company’s
debtor. Even though
he addressed Muller in terms suggestive of
sole proprietorship (“
jou as
kli
ë
nt
”),
I am of the view that this must refer to the leading role she played
on behalf of the Trust which was the entity which
had been supplied
by BPA up to then, and which had established its creditworthiness
over the years. It most certainly does
not sustain Muller’s
allegation under cross-examination that BPA knew through her earlier
discussion with Otto that it was
doing business with a sole
proprietor.
[65]
At a fairly advanced stage of her evidence
Muller sought to suggest that the supply of thatch was a business
always conducted by
her as a sole proprietor and that the business of
the Trust was that of transport. On the strength of this, she
said, BPA
should have realized that when Otto approached her in
regard to the setting up of the depot she was negotiating, not as a
representative
of the Trust, but on her own behalf. This
evidence flies in the face of Barnard’s financial statements
which reflect
that the Trust was responsible for the purchase and
sale of large amounts of thatch.
[66]
What is clear however from her evidence is
that Muller never pertinently said to either Otto or Esbach snr that
the Depot was to
be conducted as a sole proprietorship – it was
only at a later stage when the account with BPA moved into the red
and when
BPA became concerned about payment thereof, that Muller says
she spoke of the fact that she ran the Depot as a sole
proprietorship.
Her evidence is replete with passages in which
she suggests why they (Otto and Esbach snr) should (or could) have
realized from
the start of the supply of bulk diesel that they were
no longer dealing with the Trust , but she is unable to make any
positive
assertions which establish that they in fact knew.
[67]
This evidence creates a problem for
Muller. Assuming for the purposes of argument that the Depot
was indeed conducted as a
business entity distinct from the Trust, as
Muller claims, her version lays the very basis for an absence of
consensus
at the time that negotiations regarding the establishment of the
depot were taking place. Muller does not claim that, as
a fact,
BPA knew that it was negotiating with her as a sole proprietor, but
suggests that they ought to have realised this.
Otto (and later
Esbach snr) on the other hand thought that there was one contract
concluded in 2001 in terms whereof business with
the Trust would last
indefinitely. In such circumstances there could never have been
consensus between the parties as to
who was contracting with whom
after 2004 : rather there appears to have been an
error
in personam
which vitiated
consensus.
[8]
[68]
To the extent that Muller was saddled with
the onus of establishing that she was BPA’s debtor, I am of the
view that she has
failed to establish that the parties reached
consensus in that regard.
[69]
That finding leaves one with BPA’s
argument that it concluded a contract, partly written and partly
oral, with the Trust in
2001 for the supply of petroleum products and
that that agreement endured until 2008. While it was not
expressly pleaded
as such, Mr Maree argued that this was what the
evidence ultimately established. I did not understand Mr van
Riet SC to object
to this ultimate formulation of the Plaintiff’s
claim which, in broad terms, accorded with the evidence before the
court.
[70]
The Trust accepted that the delivery of
diesel initially was in terms of this agreement, and in particular,
with incorporation of
the conditions contained in annexure “A”.
The reason that the arrangement came to an end, said Muller, was
because
the bulk diesel contract was concluded with her as a sole
proprietor. I did not understand Muller to contend that
delivery
of the bulk fuel to the Depot was effected on any terms
other than those which had been in place for the previous two-three
years,
save that the debtor was a different party. The fact
that BPA was prepared to deliver significantly larger volumes of fuel
to the Albertinia premises without reviewing the existing credit
facilities does not mean that it no longer intended to deliver
fuel
to the Trust. On the contrary, as the letter of Esbach snr to
Muller on 9 June 2005 suggests, BPA was satisfied with
the
creditworthiness of the Trust up to that stage, and in particular
with Muller’s management thereof. That would provide
a logical
basis for continued business with the Trust.
[71]
Furthermore , there are no objectively
ascertainable facts which suggest that BPA was looking to supply
diesel to a different entity:
it had an established
modus
operandi
in place which was
commercially acceptable to it, and when the time came to increase the
volume of diesel to be delivered, it was
fully entitled to assume
that it was doing so in terms of its existing contractual
arrangement, i.e. the oral agreement as amplified
by annexure “A”.
Moreover, the fact that Muller says that she only mentioned the
alleged change in party sometime
after the new supply arrangements
were in place, strongly suggests that up until then BPA was entitled
to assume that it was “
business as
usual
”.
[72]
The evidence of Ms Annatjie Conradie on
behalf of BPA is important corroboration for BPA’s
understanding of the position.
She said that she was employed
in February 2004 to assist on the Depot side of the business.
She explained that the building
on the premises from which she worked
had been adapted to make provision for two offices – one for
the supply of thatch and
the other for diesel. Above the
respective doors the names “
Albertinia
Dekriet Trust
” and “
Albertinia
Diesel Depot
” were painted in
large letters. Conradie said that she worked in the latter
office.
[73]
Conradie testified that she performed an
administrative function, mainly the preparation of invoices for the
Depot’s clients.
She was shown the various faxes sent to
BPA in which the allocation of payments made to it were set out.
When shown one such
document which was prepared on the letterhead of
the Trust (as opposed to the majority of the documents that were on
the letterhead
of the Depot) Conradie replied that she saw the Trust
and the Depot as one business run by Muller. She said that Muller had
authorised
the use of the Trust’s template on her computer for
that particular fax and described Muller as a strict employer who ran
an efficient office , the suggestion being that there was no mistake
on the part of Muller in relation to that instruction.
[74]
The significance of Conradie’s
evidence is that if she , as an employee intimately familiar with the
administration of the
Depot’s business , believed that it and
the Trust were one and the same trading entity, the belief by parties
more distant
to the business that they were still dealing with the
Trust becomes all the more understandable and credible.
[75]
In the circumstances I am satisfied, on a
balance of probabilities, that BPA supplied bulk diesel to the Depot
on the basis, and
in the firm belief, that it was still dealing with
the Trust and that it would be paid by the Trust , as indeed it was ,
first
from the ABSA account , and later from the Standard Bank
account. In the absence of actual
consensus
as to the underlying legal basis for
the supply by BPA of diesel, the question is whether there is a basis
other than a contractual
arrangement under which BPA may recover the
debt from the Trust?
QUASI-MUTUAL ASSENT
[76]
In the amendment introduced after
conclusion of argument , Mr Maree sought to rely on the the doctrine
of quasi-mutual assent. This
is an English law concept which was
received into our law more than a century ago
[9]
when the Appellate Division effectively accepted the import of the
the rule as expressed in
Smith v
Hughes
[10]
:
“
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 that
belief enters into a contract with him, and thus conducting
himself
would be equally bound as if he had intended to agree to the other
party’s terms.”
[77] As Prof.
Christie
[11]
observes the doctrine (or rule) has been adopted in numerous
subsequent cases in our courts and
“
(w)ithout
it our law would be in a sorry state, as it would be obliged to hold
that whenever there was no true subjective agreement
there was no
contract, even if the one party had given the other reasonably to
understand that they were in agreement. The conduct
of business, if
this were the law, would be so hazardous that the law would be
brought into disrepute.”
[78] Applying that
approach to the present case, Muller will be held to the existing
terms of the contract between the parties (i.e.
the agreement of
September 2001) by virtue of assumed consent because of the way in
which she conducted herself when the decision
was made to establish
the Depot , and subsequent thereto. There can be little doubt that
had BPA wanted to contract with Muller
in person (as opposed to the
Trust) it would have taken appropriate steps to do so. These may have
included new arrangements for
securing payment as against delivery of
increased quantities of diesel. Moreover, Muller’s conduct
personally, and the manner
in which she conducted the business of the
Depot, were consonant with an understanding on the part of Otto and
Esbach snr that
the Trust was the debtor.
[79] In the amended
replication BPA lists five grounds which it says support the claim
that its belief was reasonable that Muller
was consenting on behalf
of the Trust to be bound by BPA’s terms. They are as follows:
“
(i) Until
then, the visits by Plaintiff (Otto) to the premises, and to “Mrs
Muller”, involved “official”
or “business”
visits to Mrs Muller in her capacity as trustee of the said trust.
(ii) Until then, there
was only one “office” and one entrance at the relevant
premises in Albertinia.
(iii) there was no
indication in any manner that the discussions that day with Mrs
Muller were with her in any other capacity than
that of trustee of
the trust (i.e. any other capacity than the one that was involved
in/with all visits and/or discussions with
her until then).
(iv) All supplies of
diesel to the premises would thereafter continue as before.
(v) No written contract
or even paperwork of any sorts were involved in relation to such
discussion.”
[80] When these
circumstances are considered against the background of the facts set
out in paragraph 49 above, I believe that the
conclusion sought to be
drawn by BPA through the application of the doctrine of quasi-mutual
assent is sustainable. Accordingly,
I am satisfied that the plaintiff
has established that the Trust is liable to it for payment in respect
of the diesel delivered
to the Depot during the period July to
October 2008, and that the third defendant is jointly and severally
liable to the plaintiff
with the Trust under the suretyship executed
by her on behalf of the Trust on 3 September 2001. In light of this
finding it is
not necessary to deal with the plaintiff’s
further replication of estoppel.
ORDER OF COURT:
IN THE CIRCUMSTANCES THE
FOLLOWING ORDER IS MADE:
A.
The First and Second Defendants , in their
respective capacities as trustees of the Albertinia Dekriet Trust ,
are liable to the
Plaintiff for such amount as the Plaintiff may
prove is due to it in respect of pertroleum products delivered by it
to the Albertinia
Diesel Depot during the period July 2008 to October
2008.
B.
The First and Second Defendants , in their
representative capacities as aforesaid , are liable to the Plaintiff
for the payment
of interest on the aforesaid amount found to be due
to it at the rate of 2,5% per month from 31 October 2008 to date of
final payment.
C.
The First and Second Defendants, in their
representative capacities as aforesaid, shall pay the Plaintiff’s
costs of suit
on the scale as between attorney and own client.
D.
The Third Defendant is jointly and
severally liable with the First and Second Defendants as aforesaid
(the one paying the other
to be absolved) for the payment to the
Plaintiff of the capital, interest and costs due to it by the First
and Defendants in their
representative capacity as aforesaid.
GAMBLE, J
[1]
“Reeds lank gelede”.
[2]
“ ‘n presise antwoord is nie moontlik nie.”
[3]
Topaz Kitchens Pty Ltd v Naboom Spa (Edms) Bpk
1976 (3) SA
470
(A).
[4]
Pillay v Krishna & Another
1946 AD 946
at 952-3.
[5]
“
Die Vennote
”.
[6]
“
Beste Sunet
”.
[7]
“
Ek het genoeg respek vir jou as kli
ë
nt
om te verwag dat jy by hierdie onderneming sal bly deur dit met jou
handtekening onderaan hierdie brief te bevestig
”.
[8]
Van der Merwe
et al
Contract – General
Principles
4
th
Ed at 25;
Venter & Others
v Credit Guarantee Insurance Corporation of Africa Ltd
[1996] ZASCA 50
;
1996 (3)
SA 966
(A) at 974-6;
Lake & Others NNO v Caithness
1997
(1) SA 667
(E) at 672B.
[9]
Pieters & Co v Salomon
1911 AD 121
[10]
(1871) LR 6 QB 597
at 607
[11]
Christie and Bradfield
Christie’s
Law of Contract in South Africa (6
th
Ed) at 11