Mano et Mano Ltd v Nationwide Airlines (Pty) Ltd and Others

• Jurisdiction: South Africa
• Citation: 2007 (2) SA 512 (SCA)

Mano et Mano Ltd v Nationwide Airlines (Pty) Ltd and Others
2007 (2) SA 512 (SCA)

2007 (2) SA p512

Citation	2007 (2) SA 512 (SCA)
Case No	606/05
Court	Supreme Court of Appeal
Judge	Zulman JA, Farlam JA, Conradie JA, Maya JA and Theron AJA
Heard	November 20, 2006
Judgment	November 30, 2006
Counsel	B Berridge for the appellant.; E A Matthis for the respondents.

Flynote : Sleutelwoorde E

Principal and agent — Agent's claim for commission — Effective cause — What constitutes — First sale falling through because item (aircraft) sold to rival purchaser — Purchaser itself F sourcing and purchasing substitute aircraft — Sale to rival purchaser falling through — Aircraft again put on market — Subsequent imminent change in aviation regulations dictating new need for aircraft purchases — Purchaser observing advertisement for same aircraft in trade journal and negotiating sale directly with seller — Whether agent being effective cause of second sale — Sufficiently weighty intervening G cause — What constitutes.

Principal and agent — Agent's claim for commission — When entitled to — Effective cause sale — What constitutes — Criteria for determining whether agent's endeavours being effective cause or causa causans of sale — Intervening cause — Sufficiently weighty intervening cause — What constitutes — Whether breaking chain of causation between efforts of agent and eventual conclusion of H sale.

Aviation — Sale of aircraft — Claim by agent introducing purchaser for commission — Effective cause — Such not proved — Unlike case of sale of immovable property, when aircraft sold some time after being introduced to buyer, not being same res. I

Headnote : Kopnota

The appellant instituted action in the High Court for payment of agent's commission on the sale of two aircraft to one of the first respondent's associated companies. The respondent denied liability on the basis that the appellant had not been the effective cause of the sale. The trial Court gave judgment in favour of the appellant but that decision was reversed on J

2007 (2) SA p513

appeal to the Full Bench. The facts were that, while the appellant had still been brokering A negotiations between the respondent and the vendor for the purchase of the two aircraft, the vendor had sold the aircraft to a rival purchaser. The respondent thereafter itself found and bought two aircraft from a different seller. Some months later, new aviation regulations were introduced which made the first respondent's fleet economically obsolete so that for the sake of profitability the respondent had to replace them as a matter of urgency. By that B stage, the sale of the aircraft by the vendor to the rival purchaser had fallen through and the aircraft were back on the market. Being on the lookout for aircraft, the CEO of the first respondent noticed an advert for the sale of the aircraft and recognised in the advert the name of the vendor representative (to whom he had previously been introduced by the appellant), approached the representative directly, and ultimately purchased the aircraft. C

Held, as to the effective cause of the second sale, that the only event that would be regarded as breaking the chain of causation between an agent's endeavours and the eventual conclusion of the sale was a sufficiently weighty intervening cause. What such an intervening cause might be or when it would be weighty enough depended on the facts of each case. In general, the question resolved itself into whether, on D balance, it had been the agent's exertions or the intervening cause which had motivated the purchaser to buy. (Paragraph [21] at 519C - D.)

Held, further, that, in the present case, the respondent's decision to re-enter the market for aeroplanes was motivated, not by any earlier requirements or negotiations, but by the new aviation regulations which unexpectedly rendered its fleet E economically obsolete and in need of urgent replacement. The decision arose from unforeseen developments and was, moreover, separated from the appellant's failed endeavours by a lapse of several months. (Paragraph [23] at 519F - G.)

Held, accordingly, that the appellant was not the effective cause of the second sale and was not entitled to commission. Appeal dismissed. (Paragraphs [25] and [26] at 520A and 520C.) F

The decision of the Full Bench (Claassen J, Makhanya J and Jajbhay J) in the Witwatersrand Local Division, in Nationwide Airlines (Pty) Ltd and Others v Mano Et Mano Ltd on 14 July 2005, confirmed.

Cases Considered

Annotations G

Reported cases

Aida Real Estate Ltd v Lipschitz 1971 (3) SA 871 (W): dictum at 874A - B applied

Barnard & Parry Ltd v Strydom 1946 AD 931: dictum at 938 applied

Basil Elk Estates (Pty) Ltd v Curzon 1990 (2) SA 1 (T): referred to H

Doyle v Gibbon 1919 TPD 220: compared

Eschini v Jones 1929 CPD 18: referred to

Gordon v Slotar 1973 (3) SA 765 (A): referred to

Howard & Decker Witkoppen Agencies and Fourways Estates (Pty) Ltd v De Sousa 1971 (3) SA 937 (T): referred to

Le Grange v Metter 1925 OPD 76: dictum at 80 applied I

Lotz v Davidson 1928 CPD 514: applied

Machonochie's Executrix v Bidewell-Edwards (1892) 9 SC 204: applied

Munitz v Steer's Trust Co (Pty) Ltd 1993 (2) SA 369 (C): referred to

Schollum & Co v Lloyd 1916 TPD 291: dictum at 298 applied

Wakefield & Sons (Pty) Ltd v Anderson 1965 (4) SA 453 (N): referred to

Webranchek v L K Jacobs & Co Ltd 1948 (4) SA 671 (A): referred to. J

2007 (2) SA p514

Case Information

Appeal from a decision of the Full Bench (Claassen J, Makhanya A J and Jajbhay J) in the Witwatersrand Local Division overturning the order granted by the Court of first instance in the appellant's favour in an action to recover agent's commission. The facts appear from the reasons for judgment.

B Berridge for the appellant. B

E A Matthis for the respondents.

In addition to the authorities cited by the Court, counsel for the parties referred to the following:

Administrateur, Natal v Trust Bank van Afrika Bpk 1979 (3) SA 824 (A) at 833A C

Aucamp and Others v University of Stellenbosch 2002 (4) SA 544 (C) in para [68] at 567I - 568F

Beazley v Magnum Estate Agents (Pty) Ltd and Another 1976 (4) SA 94 (W) at 96H and 97H

BOE Bank Ltd v Ries 2002 (2) SA 39 (SCA) in paras [12] - [13] at 46E - 47B D

Brayshaw v Schoeman and Another 1960 (1) SA 625 (A) at 630C - D

Goddard v Arnold 1922 TPD 167 at 171 - 2

Gouda Boerdery BK v Transnet 2005 (5) SA 490 (SCA) at 498G - H

Indac Electronics (Pty) Ltd v Volkskas Bank Ltd 1992 (1) SA 783 (A) at 797F - 798C E

JMYK Investments CC v 600 SA Holdings (Pty) Ltd 2003 (3) SA 470 (W) in para [7] at 472F - G

Lillicrap, Wassenaar and Partners v Pilkington Brothers (SA) (Pty) Ltd 1985 (1) SA 475 (A) at 501G - H

Lombard v Katz Bros 1935 EDL 460 F

Luxor Ltd v Cooper [1941] 1 All ER 33 at 40

Minister of Safety and Security v Van Duivenboden 2002 (6) SA 431 (SCA) in para [12] at 441E - 442B

Nach Investments (Pty) Ltd v Knight Frank SA (Pty) Ltd [2001] 3 All SA 295 (SCA)

Protea Assurance Co Ltd v Casey 1970 (2) SA 643 (A) at 648D - E G

R v Dhlumayo and Another 1948 (2) SA 677 (A)

Telematrix (Pty) Ltd t/a Matrix Vehicle Tracking v Advertising Standards Authority 2006 (1) SA 461 (SCA) in para [13] at 486C - E

Trustees, Two Oceans Aquarium Trust v Kantey & Templer (Pty) Ltd 2006 (3) SA 138 (SCA) at 143J - 144A H

Union Spinning Mills (Pty) Ltd v Paltex Dye House (Pty) Ltd and Another 2002 (4) SA 408 (SCA) in para [24] at 416F - H.

Cur adv vult.

Postea (November 30). I

Judgment

Conradie JA:

[1] The...