Bitcon v Rosenberg

• Jurisdiction: South Africa
• Judge: Wessels CJ, Curlewis JA and Beyers JA
• Judgment Date: 14 April 1936
• Court: Appellate Division

Wessels, C.J.:

This is an appeal from a judgment on fact given by Mr. Justice TINDALL in the Witwatersrand Local Division. The question which the learned Judge had to decide was whether the appellant had agreed to share equally with respondent the profits derived from the sale of a lease to mine certain claims on the farm Turffontein. After hearing the evidence the learned Judge came to the conclusion that he did not believe the appellant's story but accepted the story of the respondent, though the evidence of the respondent and his witnesses was not quite satisfactory. From the view we take of the case it is unnecessary to go into minute details. The salient facts are as follows: In his

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declaration the plaintiff (respondent in this Court) alleged that the contract to share equally in the profits was made in February, 1934, at Johannesburg. On being asked for particulars the plaintiff stated that the contract was entered into in the early part of February, 1934. The defendant admitted that he had acquired a mining lease about 25th inlay, 1934, but denied that he had made any such contract as alleged by the plaintiff. Pleadings were closed, and on May 15th the trial started before GREENBERG, J. Mr. Brink, for the plaintiff, asked for an amendment of summons and declaration by striking out the words " in or about the month of February, 1934," and substituting the words "between the 4th November, 1933, and the 11th December, 1933." GREENBERG, J., after hearing witnesses and argument, granted the amendment. The trial then proceeded before TINDALL, J., on 22nd May, 1934.

The plaintiff's version of the contract is as follows. Somewhere about the first week in November, 1933, he heard from an inspector of mines, Mr. Joseph, that there were some claims which had belonged to the Village Main Reef G.M. Co. but had lapsed to the Government. After seeing the Government Mining Engineer he went back to his office and instructed his clerk, Frankel, to make full enquiries and get details of these claims from the Mining Leases Board. This Frankel did and made a report to the plaintiff Rosenberg. Thereupon Rosenberg telephoned to the defendant Bitcon and asked him to come and see him at his (plaintiff's) office.

The next morning Bitcon arrived at Rosenberg's office. Rosenberg has two offices, his own an inner office, and an outer office where his clerks are accommodated. The interview with Bitcon took place in the inner office. Rosenberg and Bitcon were alone. Rosenberg's own words are: "I said to him, 'Mr. Bitcon, I am anxious to go in for the claims of the Village Main, but I am informed you have already applied for the lease.' He said: 'That is right.'I said, 'I was further informed that if two or more applicants apply for the same claims the claims will of necessity have to be put up for public tender,' and I led him on to the whole position, and ultimately I awaited a suggestion from him, and we came to an agreement that we share 50-50 in his application and that I would refrain from making my application. We spent about half an hour in all in my office.

"(Question): Can you remember anything else that happened during that conversation?

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"We discussed the question of his application, as to how much he had tendered; he told me a little over £1,000. And with that he said, 'You know what Government offices are; this application of mine has been in some time and I have heard nothing. Is it not possible to expedite the matter?' I said, 'I will do my utmost to expedite the matter as I know (the late) Mr. Roos and I feel that he may assist.' His reply was, 'It is a good idea.'

"(Question): Was anything said about the expense side of the question at that interview?

"It was I who said, 'There is always a certain amount of expense attached to this, I suppose £500 to £600, my share, would cover the whole amount.' Having finished the conversation, and having come to an understanding I invited him to tea.

"(Question): Did he give you any idea of how he might deal with the lease?

"He said that if we got this he would band it over to his syndicate, and he mentioned the name Gipsy Syndicate."

They then left the inner office and went through the outer office where Rosenberg's clerk, Frankel, and Miss Garber, a typist, were sitting. Rosenberg states that he and Bitcon had been together in the inner office about half an hour, "then," in his own words, "we went out of my office into the main office where Mr. Frankel and Miss Garber sat at their respective desks. Mr. Frankel had been dealing with the matter prior to that, his instructions having been to get details, and when I came out of my office with Mr. Bitcon at my side we stood in front of Mr. Frankel's desk and I said to Mr. Frankel, 'Don't go on with this Village Main claims any further, I have reached an agreement with Mr. Bitcon to go 50-50 with him,'- words to that effect - and at the same time I said to Frankel, 'If at any time I am away Mr. Bitcon wants any money give him from £500 to £600.' Mr. Frankel has my general power of attorney and he also has the keys of my safe."

"(Question): Mr. Frankel is the man who, in your absence, would attend to a matter of that sort?

"Yes, where it concerned a payment he would take it, either cash or otherwise.

"(Question): When you came out of your office with Mr. Bitcon and you spoke to Mr. Frankel, could Mr. Bitcon hear what you said P

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"Yes, he was at my side.

"(Question): Did he raise any objection?

"None, whatever.

"(Question): What did he do then

"We then went out and had some tea, and that was the end of the bargain.

"(By TINDALL, J.): Where did you have tea?

"I think it was at the Royal cafe, just round the corner - I cannot remember with any exactitude, but we went out for some tea."

Bitcon's version of the interview is entirely different. He tells us that he ascertained that there were lapsed Village Main Reef claims, and on 14th August he tendered £1,050 for 140 of those claims. He admits an interview with Rosenberg in December, 1933. His words are: "About the first week in December - at the latter end of December as near as I can recollect." He had then already received verbal information from the Mines Department that his tender had been recommended for acceptance. The official intimation in writing he received on December 21st, - that a draft lease would be forwarded to him for his consideration after the survey. He was also sent a copy of the Executive Council resolution approving of a lease being granted to him, dd. 15th December, 1933 (exh. E). He fixes the meeting with Rosenberg as having taken place about two weeks before he received the official letter. Bitcon's own words as to the interview are: I was shown into his private office and he asked me to sit down. I sat down and he closed the door. I asked him what he wanted to see me about, and he said: 'I understand you have been successful in getting the tender for the Village Main Township Village Main claims.' I said 'Yes.' He said he intended to apply for them also. Then he asked me how much it was going to cost - if I had any idea how much it would cost to bring it to the producing stage. I told him I did not know but I considered it would cost about £100,000 to bring it to the producing stage to work it on a small scale, and he said, 'Well, that will be too much for me,' and he asked me what I was going to do with it. I told him I would most likely be handing it over to the company which I was running called the Gipsy. Then he wanted to know where he could come in. I told him it would be necessary for me to raise money for the venture and he could have a participation

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on the underwriting if he wished to. He said that would be quite all right as long as he could come in somewhere. That was practically the gist of the whole conversation which took place in his office more or less.

"(Question): You have heard Mr. Rosenberg's evidence that in the office you agreed to go into partnership, was any such agreement arrived at?

"None at all, there was no agreement at all.

"(Question): And he said he told you if he put in for a tender there would have to be a public tender?

"No, I was not afraid of anybody putting in a tender at that date.

"(Question): How long, do you think you were with Mr. Rosenberg ? - It may have been about 15 to 25 minutes, it was not long.

"(Question): And then you left? - I left.

"(Question): Did you 010 out with Mr. Rosenberg? - No.

"(Question): Mr. Rosenberg says that you left together with him? - That is not true.

"(Question): And he says that he spoke to Mr. Frankel in your presence going out, and said that he had come to an agreement with you on a 50-50 basis, and Mr. Frankel was to give you £500 to £600 when required. Any truth in that? - None at all.

"(Question): You say you did not leave with him? - I did not leave with Mr. Rosenberg at all.

"(Question): You heard no such conversation?

"No such conversation transpired then. The first I heard of it was when I got the message from Mr. Rosenberg later on - when I got Mr. Rosenberg's letter, in 1934 I think it was."

The two versions cannot be reconciled. There can be no mistake. One or other of these litigants is telling a wilful falsehood. That Rosenberg had information with regard to the lapsed Village Main Reef claims is clear from the evidence of Air. Joseph, an inspector of mines at Germiston. The exact date he got this information...