LT Real Estate CC v Venketsamy

• Jurisdiction: South Africa
• Judge: Chetty J and Vahed J
• Judgment Date: 09 October 2020
• Court: KwaZulu-Natal Local Division, Durban
• Hearing Date: 19 June 2020
• Docket Number: 42/2018

Chetty J (Vahed J concurring):

[1]

This is an appeal against the whole of the decision of the Magistrates' Court, Verulam delivered on 13 April 2016. The appellant, the plaintiff in the court a quo, instituted action against the respondent claiming estate agent's commission owing to it, following the sale of the respondent's immovable property in circumstances where

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the appellant contends that its introduction of a purchaser constituted the effective cause of the sale of the property.

[2]

A brief background is that the appellant, who carries on business as an estate agent, secured from the respondent a sole mandate to sell her residential property in La Mercy, KwaZulu-Natal. The respondent required a price of R1,5 million for the property and in turn granted the appellant a mandate from 9 October 2008 to 9 November 2008 to secure a purchaser. It was agreed that if the appellant secured a successful purchaser, the respondent would pay a commission calculated at 7.5 percent on the purchase price. The appellant failed to secure a purchaser within the period of the sole mandate and thereafter entered in an agreement with the respondent pursuant to an 'open' mandate, during which time other agents were also mandated to sell the property.

[3]

The appellant contends that it introduced the respondent to Mr and Mrs Govender as potential purchasers of the property. Their offer of R1,1 million however was refused by the respondent. The appellant contends that in June 2009 it became aware that the respondent concluded a private sale of the property with Mr and Mrs Govender in circumstances where it was the effective cause of the sale, thereby entitling it to damages based on its commission of 7.5 percent of the selling price, amounting to R89 775.

[4]

The respondent contended otherwise, denying that the purchasers made an offer pursuant to an introduction by the appellant and denied that the latter was the effective cause of the sale. The version of the respondent was that the purchasers met her via a private listing of the property, and independently of the appellant. Consequently, the respondent denied any liability for estate agent's commission.

[5]

In total, the court a quo heard the evidence of five witnesses and considered several bundles of exhibits. The principal agent of the appellant, Mr G Reddy, testified that apart from the sole mandate concluded with the respondent, an oral agreement was reached after the expiry of the sole mandate, for the appellant to continue marketing the property. An agent in the employ of the appellant, Mr T Pillay, introduced Mr Govender to the respondent and showed Mr Govender the property in March 2009.

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An offer presented by Govender was rejected by the respondent. The respondent testified that she marketed the property privately on the internet in July 2008. She confirmed that she entered into an agreement with the appellant to market and sell the property, but no suitable offers had been forthcoming. After attempts by the estate agents, including the appellant, had been unsuccessful, the respondent contacted Mrs Govender (a joint purchaser along with her husband) and concluded an agreement of sale in June 2009. The respondent was some time later contacted by the appellant's Mr Lazarus who contended that she owed them a commission based on the sale of her property. Mr Govender, the joint purchaser of the property, testified that he had initially seen the property being advertised for sale on the internet. He confirmed having later viewed the property through Mr T Pillay of the appellant in February 2009, after which he made an unsuccessful offer to purchase.

[6]

It is common cause that the property was eventually purchased by Mr and Mrs Govender for an amount less than originally offered. The issue before the court was whether the property was sold pursuant to a mandate given to the appellant, and if so, whether the respondent was liable for the estate agent's commission.

[7]

The court a quo found in favour of the respondent on a balance of probabilities, holding that the appellant failed to adduce sufficient evidence to show that the sale of the property took place during the period of its mandate or that it was the effective cause of the sale. The appellant's claim was dismissed with costs.

[8]

The appellant delivered a notice of appeal of considerable length, some eight pages in extent, contending that the magistrate erred in a number of respects in holding that the appellant failed to prove its case. It is significant that nowhere in either the appellant's notice of appeal or in its heads of argument does the appellant point to any misdirection of the part of the court a quo in dismissing its claim. In doing so, it is pertinent to note that it is an established principle that the trial court's evaluation of the evidence and acceptance thereof, in the absence of material misdirection, is presumed to be correct. As such, an appeal court will not lightly interfere with those factual findings, particularly where credibility findings have been made. The trial court has had the advantage of seeing the witnesses in person and being able to observe their demeanour. An appeal court will interfere with such findings only when it is

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evident that there are demonstrable and material misdirections by the trial court. [1] Even on a generous interpretation of the word 'erred' to the exclusion of any reference to 'misdirection' in the notice of appeal, the heads of argument of the appellant fail to deal in any manner with the shortcomings of the court a quo in assessing the evidence of the various witnesses.

[9]

Against the backdrop of the magistrate's reasons for judgment handed down on 13 April 2016, the appellant delivered a notice of appeal on 26 October 2017. Magistrates' court rule 51(3) provides that:

'An appeal may be noted within 20 days after the date of a judgment appealed against or within 20 days after the registrar or clerk of the court has supplied a copy of the judgment in writing to the party applying therefor, whichever period shall be the longer.' (my italics)

[10]

The notice of appeal ought to have been delivered on 27 June 2016. [2] Consequently, the notice of appeal was delivered 18 months out of time. Additionally, there is no indication on the record that the appellant complied with the provisions of Magistrates' court rule 51(4) by proving security for costs at the time of noting its appeal. On 7 November 2017 the respondent's attorneys delivered a notice objecting to the notice of appeal. Uniform rule 50(4)(a) further requires that within 40 days of noting an appeal, an appellant must apply to the registrar for the assignment of a date for the hearing of the appeal. This period expired on 21 December 2017. There is nothing on the record to indicate compliance with this provision. A notice applying for a date for hearing by the appellant's attorney of record at the time, Rajespree Naidoo and Associates, is dated 22 January 2018. The respondent's attorney has no recollection of having received such a notice, albeit out of time. The notice, which forms part of the record, bears no indication of service on the respondent's attorneys. Uniform rule 50(4)(c) clearly contemplates that it is only after compliance with the provision of Uniform rule 50 in all its respects that an appellant can consider the appeal to have been 'duly prosecuted'. To the extent that the appellant was required in terms

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of Uniform rule 50(7)(a) to lodge two copies of the record simultaneously when applying for a date for hearing of the appeal, the respondent contends that the record was only served on her attorneys on 5 February 2018. Even if the record was delivered on 30 January 2018, being the date stamp of the registrar on the record, the record was still lodged out of time. On multiple scores, the appellant has flouted the rules.

[11]

In light of the above, the respondent contends that the appeal has lapsed in terms of Uniform rule 50(4)(a), 50(4)(c) and 50(7)(a) read with Magistrates' courts rule 51(9) which provides that:

'a party noting an appeal or a cross-appeal shall prosecute the same within such time as may be prescribed by rule of the court of appeal and, in default of such prosecution, the appeal or cross-appeal shall be deemed to have lapsed, unless the court of appeal shall see fit to make an order to the contrary' (my italics)

In Nawa & others v Marakala & another 2008 (5) SA 275 (BH) the court held that although the registrar had issued a date for the hearing of the appeal, this did not constitute condonation of non-compliance with the rules. This is a function for the court alone. Similarly, in terms of Uniform rule 50(1) an appeal against the decision of a magistrate in a civil matter shall be prosecuted within 60 days after the noting of an appeal. Failure to do so results in the appeal not being prosecuted, in which event it 'shall be deemed to have lapsed'.

[12]

The matter was set down for hearing on 1 March 2019. Despite the respondent's counsel having mounted an attack in his heads of argument dated 29 March 2018 against the appeal as having lapsed for failure to comply with the time limits prescribed in the rules, six days before the appeal could be heard, the appellant delivered an application for condonation in the following terms:

'That the late delivery of the Applicant/Appellant's Notice of Appeal and, in so far as may be necessary, its late delivery/prosecution of its appeal and for any late delivery of Volume SA and the Amended Master Index of the Appeal Record is condoned and/or the relevant time periods are extended, under section 84 of the Magistrate's Court Act, 32 of 1944.'

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