Howard & Decker Witkoppen Agencies and Fourways Estates (Pty) Ltd v De Sousa

• Judge: Human J and Moll J
• Judgment Date: 25 June 1971
• Citation: 1971 (3) SA 937 (T)
• Hearing Date: 04 June 1971
• Court: Transvaal Provincial Division

Human, J.:

This is an appeal against a decision of an additional magistrate of Johannesburg where at the end of the plaintiff's case he decreed absolution from the instance with costs. Defendant did not close his case but applied for absolution which was granted.

Appellant is hereinafter referred to as plaintiff and the respondent as defendant.

B The plaintiff company carries on business as estate agents and claimed commission from defendant arising out of the sale of a house owned by defendant.

Particulars of the claim are set out in the summons as follows:

"Plaintiff's claim against defendant is for payment of the sum C of R1 000 representing agent's commission owing to plaintiff by defendant arising from the sale of fixed property situate in Bryanston by agency of plaintiff under commission so to act for defendant."

The cause of action became clearer when in reply to a request for further particulars, plaintiff stated, inter alia, that the mandate given by defendant to sell the fixed property was D verbal and that defendant's instruction was to sell or be the effective cause of sale of a dwelling situate at 1495 Bryanston Drive, Bryanston.

It is common cause that the dwelling in question was eventually sold to a Mr. Weehuizen but defendant in his plea denied that the plaintiff was the effective cause of the salt and he therefore stated that plaintiff was not entitled to claim agency commission.

E Mrs. Hartley, employed by plaintiff company during the relevant time, was the sole witness called on behalf of the plaintiff.

According to her testimony she met defendant during September, 1969 when he was busy working in the said dwelling which was at that stage nearing completion.

She introduced herself and gave him a business card similar to F the exhibit produced in the Court below which indicated that she was a representative of the plaintiff company.

Defendant entrusted her with the sale of this property for R45 000, which sum included agency commission.

Thereafter she advertised that the property was for sale in the G Star newspaper and on 29th September, 1969 a Mrs. Weehuizen of Venterspost telephoned her and they met the same afternoon at the house of a Mrs. Lawson who happened to be an old acquaintance of the witness and the sister-in-law of Mrs. Weehuizen.

H The witness accompanied Mrs. Weehuizen to the property in question. Mrs. Weehuizen inspected the property extensively and displayed a keen interest in buying.

It is clear from the evidence that Mrs. Weehuizen had not been to or seen the house before.

When told that the property was for sale at R45 000 Mrs. Weehuizen indicated that this figure was perhaps higher than their financial resources permitted, but that the ultimate decision had to be made by her husband. It was there and then arranged that Mr. Weehuizen would

Human J

inspect the property the next day at approximately 6 p.m. Mrs. Hartley thereafter made arrangements with defendant to have somebody available on the premises at that hour to unlock the house. When the Weehuizens and the witness arrived there late the following evening nobody was available to unlock the A premises and, with the aid of a torch, the inspection was carried out by viewing the interior through the windows.

The Weehuizens made various suggestions about the property, items which had to be completed, and discussed the financial aspects. Weehuizen was prepared to purchase the house for R43 000, subject to satisfactory answers being given to various questions.

Mrs...