Coppermoon Trading 13 (Pty) Ltd v Government, Eastern Cape Province and Another

• Jurisdiction: South Africa
• Citation: 2020 (3) SA 391 (ECB)

Coppermoon Trading 13 (Pty) Ltd v Government, Eastern Cape Province and Another
2020 (3) SA 391 (ECB)

2020 (3) SA p391

Citation	2020 (3) SA 391 (ECB)
Case No	1949/05
Court	Eastern Cape Local Division, Bhisho
Judge	Van Zyl DJP
Heard	June 18, 2019
Judgment	June 18, 2019
Counsel	RP Quinn SC for the plaintiff.; PJ de Bruyn SC (with MH Sishuba) for the defendants.

Flynote : Sleutelwoorde

Waiver — By conduct — Determination of intention — Conduct to be consistent with intention to waive or make election — Must be clear and unequivocal — Onus on party alleging waiver.

Waiver — Election — Two valid inconsistent rights required — Choosing between alternative remedies not amounting to election consistent with waiver.

Waiver — Mistake — Reliance on erroneous legal advice — Mistake, whether in fact or in law, excusable if just — No general principle that conduct based on faulty legal advice never constituting just mistake.

Headnote : Kopnota

In this application to introduce further evidence after the close of pleadings in an action, the issue for determination was whether the plaintiff (the present respondent) had, by electing to proceed on a deed of settlement, abandoned or waived its right to proceed with its action based on an earlier deed of sale. The defendants (the present applicants) argued — based on plaintiff's conduct — that this was the case, and sought to introduce waiver as an additional defence in the action. In the alternative they requested that the issue of waiver be referred for the hearing of oral evidence. In the meantime another court had ruled that the deed of settlement was void and unenforceable.

The plaintiff argued that its decision to abandon its action based on the deed of sale and instead enforce the deed of settlement was made on the recommendation of its legal advisors and was therefore an excusable mistake. The defendants submitted that such a mistake was no answer to a defence of waiver (see [33]).

The court, having emphasised that the defendants had circumvented the Uniform Rules of Court by raising the alleged waiver in the way they did (they should have sought an amendment of their plea or used rule 33(4) — see [15] – [20]), held that the exercise of its discretion to depart from the court rules depended on whether the issue of waiver could be determined on the pleadings (see [22]). The court set out the established principles of waiver and election. It pointed out that an election generally involved a waiver in that one right is waived by choosing to exercise another right inconsistent with the former, and that the onus of proof was always on the party who alleged that an election was made or a right waived. Clear proof was required. (See [23] – [27].)

The court proceeded to reason as follows: Since there was no inconsistency involved, the making of a choice between alternative remedies, like the plaintiff's choice to proceed on the settlement and not the sale, was not an election in law. And since another court had ruled the settlement void and unenforceable, there had in any event been no election to make. (See [31] – [32], [45].)

As to plaintiff's alleged mistake or ignorance of the law and the defendants' submission that it was no answer to the defence of waiver: An error of law

2020 (3) SA p392

or fact was excusable if it was just, and there was no general principle that conduct based on faulty legal advice could never constitute a just and probable mistake. The extent to which a reliance on legal advice would bind a party had to be determined in the context of the established requirements for election and waiver. The need to prove full knowledge of allegedly waived rights applied equally where the alleged waiver (or election) was performed by the party's agent (the legal advisor). (See [36] – [39].)

Where, as here, reliance was placed on a party's conduct, the question was whether it was consistent with an intention to waive, the onus, as always, being on the party alleging waiver. The conduct relied on had to show a clear and unequivocal intention to waive. (See [42] – [43], [46].)

The nature of the onus on the defendants and the factual nature of the enquiry needed to assess the plaintiff's intention did not allow the determination of the question of waiver in the manner proposed by the defendants. The plaintiff's statements in the settlement application did not amount to an unequivocal expression of an intention to fall back on the original action based on the deed of sale. Its evidence relating to its intention was relevant and had to be considered, in the interests of fairness, in proceedings in which the defence raised was properly pleaded. Nor was the present application an appropriate one to refer to oral evidence. The defendants therefore had to plead their defence in terms of the rules of court. Application to introduce further evidence dismissed. (See [47], [50] – [51].)

Cases cited

Absa Bank Ltd v The Master and Others NNO 1998 (4) SA 15 (N) ([1998] 3 All SA 189): dictum at 28G – J applied

Administrator, Orange Free State and Others v Mokopanele and Another 1990 (3) SA 780: compared

Administrator, Transvaal, and Ohers v Theletsane and Others 1991 (2) SA 192 (A) ([1990] ZASCA 156): dictum at 197A – B applied

African Bank Ltd v Covmark Marketing CC; African Bank Ltd v Soodhoo and Others 2008 (6) SA 46 (D): considered

Bekazaku Properties (Pty) Ltd v Pam Golding Properties (Pty) Ltd 1996 (2) SA 537 (C) ([1996] 1 All SA 509): dictum at 542F applied

Bikitsha v Eastern Cape Development Board and Another 1988 (3) SA 522 (E): compared

Borstlap v Spangenberg en Andere 1974 (3) SA 695 (A): dictum at 704 applied

Botha (now Griesel) and Another v Finanscredit (Pty) Ltd 1989 (3) SA 773 (A): dictum at 792B – D applied

Collen v Rietfontein Engineering Works 1948 (1) SA 413 (A): dictum at 436 applied

Combrinck v Strasburger 1914 CPD 15: applied

Denel (Edms) Bpk v Vorster 2004 (4) SA 481 (SCA) ((2004) 25 ILJ 659; [2005] 4 BLLR 313; [2004] ZASCA 4): dictum in para [3] applied

Ellis and Others v Laubscher 1956 (4) SA 692 (A): dictum at 702A – E applied

Ex parte Sussens 1941 TPD 15: dictum at 20 applied

Fehr v Gordon and Rennie NNO and Another 1988 (1) SA 125 (A): discussed and distinguished

Feinstein v Niggli and Another 1981 (2) SA 684 (A): dictum at 698A – 699B applied

Flemmer v Ainsworth 1910 TPD 81: applied

Frenkel, Wise and Co Ltd v Cuthbert 1947 (4) SA 715 (C): applied

Gollach & Gomperts (1967) (Pty) Ltd v Universal Mills & Produce Co (Pty) Ltd and Others 1978 (1) SA 914 (A): dictum at 928D applied

2020 (3) SA p393

Hepner v Roodepoort-Maraisburg Town Council 1962 (4) SA 772 (A): dictum at 778H – 779A applied

Independent Municipal and Allied Trade Union and Others v MEC: Environmental Affairs, Developmental Social Welfare and Health, Northern Cape Province, and Others 1999 (4) SA 267 (NC): dictum at 281J applied

Internatio (Pty) Ltd v Lovemore Brothers Transport CC 2000 (2) SA 408 (SE): dictum at 411B – D applied

Laws v Rutherfurd 1924 AD 261: dictum at 263 applied

Logan v Beit (1890) 7 SC 197: dictum at 216 applied

Mgoqi v City of Cape Town and Another; City of Cape Town v Mgoqi and Another 2006 (4) SA 355 (C): compared

Minister of Agriculture v Tongaat Group Ltd 1976 (2) SA 357 (D): dictum at 364H applied

Minister van die Suid-Afrikaanse Polisie en 'n Ander v Kraatz en 'n Ander 1973 (3) SA 490 (A): dictum at 512E – H applied

Montesse Township and Investment Corporation (Pty) Ltd and Another v Gouws NO and Another 1965 (4) SA 373 (A): dictum at 381B – D applied

Moulded Components and Rotomoulding South Africa (Pty) Ltd v Coucourakis and Another 1979 (2) SA 457 (W): dictum at 462F – 463B applied

Moyce v Estate Taylor 1948 (3) SA 822 (A): dictum at 829 applied

Mthanti v Netherlands Insurance Co of SA Ltd 1971 (2) SA 305 (N): distinguished

Multilateral Motor Vehicle Accidents Fund v Meyerowitz 1995 (1) SA 23 (C): dictum at 27D – G applied

Mutual Life Insurance Co of New York v Ingle 1910 TPD 540: dictum at 550 applied

Neal v Neal 1959 (1) SA 828 (N): dictum at 832F – 833C applied

Netlon Ltd and Another v Pacnet (Pty) Ltd 1977 (3) SA 840 (A): dictum at 873A – B applied

North Vaal Mineral Co Ltd v Lovasz 1961 (3) SA 604 (T): dictum at 611F – H applied

Palmer v Poulter 1983 (4) SA 11 (T): dictum at 21A applied

Pretorius v Greyling 1947 (1) SA 171 (W): dictum at 177 applied

Privest Employee Solutions (Pty) Ltd v Vital Distribution Solutions (Pty) Ltd 2005 (5) SA 276 (SCA) ([2005] ZASCA 52): dictum in para [27] applied

Road Accident Fund v Mothupi 2000 (4) SA 38 (SCA): dicta in paras [15] – [19] applied

Segal v Mazzur 1920 CPD 634: dicta at 644 – 645 applied

South African Police Service v Solidarity obo Barnard (Popcru as Amicus Curiae) 2014 (6) SA 123 (CC) (2014 (10) BCLR 1195; [2014] ZACC 23): dictum in para [202] applied

South African Post Office v De Lacy 2009 (5) SA 255 (SCA) ([2009] 3 All SA 437; [2009] ZASCA 45): dictum in para [35] applied

Stoltz v Ho Kee 1975 (1) SA 100 (E): referred to

Thomas v Henry and Another 1985 (3) SA 889 (A): dictum at 897B – D applied

Total South Africa (Pty) Ltd v Bekker NO 1992 (1) SA 617 (A): dictum at 627B applied

Transalloys v Mineral-Loy [2017] ZASCA 95: referred to

Umhlebi v Estate Umhlebi and Fina Umhlebi (1905) 19 EDC 237: dictum at 249 applied

Van Zyl and Others v Government of the Republic of South Africa and Others 2008 (3) SA 294 (SCA) ([2007] ZASCA 109): compared

Van Zyl v Niemann 1964 (4) SA 661 (A): dictum at 669H – 670A applied

2020 (3) SA p394

Willis Faber Enthoven (Pty) Ltd v Receiver of Revenue and Another 1992 (4) SA 202 (A): applied

Case Information

RP Quinn SC for the plaintiff.

PJ de Bruyn SC (with MH Sishuba) for the defendants.

An application to introduce further evidence after close of pleadings. The application was dismissed with costs (see [51]...