Holtzhausen v Chetty
| Jurisdiction | South Africa |
| Judge | Gorven J |
| Judgment Date | 06 December 2013 |
| Docket Number | AR 256/2013 |
| Hearing Date | 02 December 2013 |
| Court | KwaZulu-Natal High Court, Pietermaritzburg |
Gorven J:
On 22 August 2011 the two respondents, who are married to each other in community of property, arrived at the office of the appellant. They arrived without forewarning, wishing to purchase immovable property. The appellant is an estate agent. With him at the time was a bond originator. The respondents there and then signed an offer to purchase an immovable property (the property) on a pro forma document produced to them by the appellant. The offer was accepted by the seller who signed the document signifying acceptance the following day (the first agreement). The first agreement reflects the sale price as R2.5m payable in cash.
2013 JDR 2771 p2
Gorven J
On 24 August 2012, the respondents and the seller concluded a virtually identical agreement (the agreement) by completing various places on a new copy of the same pro forma document. The only material difference was that the purchase price for the property was reduced to R1.5m and an addendum was concluded dealing with the sale of certain movable items on the property for the sum of R1m. It is common cause that the agreement has not been proceeded with. The respondents do not wish to enforce it. It appears that the seller holds the same view, although the seller did not give evidence at the trial and nothing in this judgment should be construed as a finding which is binding on him. The failure to proceed with the agreement gave rise to an action brought in the Newcastle Magistrate's Court. The action was for payment of commission in the sum of R100 000 arising from the agreement. The claim was dismissed with costs. This appeal is against that judgment.
The Particulars of Claim plead the term of the agreement relied upon as follows:
'[T]he Plaintiff would have the right to recover the commission from the First and the Second Defendant in the event of the First and the Second Defendant cancelling the agreement or in the event of the Seller cancelling the agreement as a result of the First and the Second Defendant's breach of the agreement'.
Paragraph 7 of the Particulars of Claim, which is relied upon to show that the commission is payable, reads as follows:
'The First and the Second Defendant did wrongfully and/or unlawfully cancel the agreement, alternatively the First and the Second Defendant failed and refused to carry out their obligations in terms of the agreement resulting in the Seller cancelling the agreement'.
2013 JDR 2771 p3
Gorven J
From the Particulars of Claim, it appeared that the claim was based on the provisions of clause 7.3.1, which formed part of the breach clause in the agreement. In argument Mr Joubert, who appeared for the appellant on appeal but not in the trial court, confirmed this to be the case and did not rely on the provisions of clause 10 or clause 7.3.2, both of which also deal with the question of commission. The former provides that the seller is liable to pay the commission if the transfer takes place and the latter that the purchaser and seller are jointly and severally liable for the commission if the agreement is consensually cancelled. Clause 7.3.1, corrected to exclude grammatical errors, reads as follows:
Notwithstanding anything to the contrary contained in Clause 13, if this agreement is cancelled at any time
as a result of fault on the part of either the Purchaser or the Seller, the Estate Agent will be entitled to payment of the commission from the party at fault…'
The reference to clause 13 is just one example of the poor drafting of the pro forma document. It appears that it should be a reference to clause 10.
The basis of the claim was therefore that the agreement was cancelled, in terms of clause 7.3.1., as a result of fault on the part of the respondents even though it was not pleaded as clearly as this.
The respondents raised a number of...
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