Raven Estates v Miller

• Jurisdiction: South Africa
• Judge: Leveson AJ
• Judgment Date: 10 June 1983
• Court: Witwatersrand Local Division

Leveson AJ:

In this action, the plaintiff, a firm which carries D on business as an estate agent, claims payment of the sum of R2 600 as commission for the performance of its mandate in bringing about the sale of what was described by the parties as a "sectional title unit". I express doubt as to the correctness of this term for the reason that at the time of the transaction E no register had been opened in terms of the provisions of the Sectional Title Act 66 of 1971. The plaintiff alleges that during 1980 it was engaged by the owner of a block of townhouses, known as "Salonica", then in the course of construction on stand 227, Fairland, Johannesburg, to find buyers for units in the block. The owner of the property was a F company, Zotos Brothers (Pty) Ltd. Pursuant to its mandate the plaintiff aroused the interest of the defendant in unit 5 of the building and, on 16 October 1981, the defendant signed a document in which she was reflected as the purchaser of the unit. The owner signed the document two days later on 18 October 1981. In terms of the agreement the plaintiff's remuneration, in the form of commission, was fixed in the sum G of R2 600. Clause 6.1 of the agreement provided that:

"The commission is payable by the seller to the agent when this contract is signed, the deposit paid, and all suspensive conditions are fulfilled."

Clause 6.3 provided that:

"If the contract is cancelled by agreement or as a result of the purchaser's breach of contract, the purchaser will be H liable jointly and severally with the seller for the payment of the commission."

These provisions constituted stipulations for the benefit of the plaintiff and the benefit thus conferred was accepted by the plaintiff when its representative put his signature to the agreement in the space provided on 16 October 1981. The plaintiff, I was informed, has elected to look to the defendant for payment. The contract having been cancelled by mutual agreement between the owner and the defendant.

For the sake of avoiding confusion it must be mentioned that particulars

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of claim (not signed by counsel) were annexed to the summons. When the matter came to be defended a declaration containing similar (but not identical particulars) was filed. It was agreed between counsel that the particulars of claim were to prevail and that the declaration was to be ignored. Furthermore A when the trial commenced an amendment to the particulars of claim was moved on behalf of the plaintiff. The amendment was to the effect that the benefits (as above set out) conferred upon the plaintiff as agent had been accepted by the plaintiff on or about 16 October 1980. The amendment was allowed and, in lieu of filing a further plea, defendant's counsel informed me B that the allegation was denied.

The first defence pleaded to the above claim was that at the time of signature of the document, it was incomplete in that all the material terms thereof had not been recorded therein. It was contended therefore that by reason of the provisions of s 1 (1) of the Formalities in respect of Contracts of Sale of C Land Act 71 of 1969, the agreement was void.

The document signed by the parties was a printed form. Blank spaces therein for insertion of details peculiar to the transaction had been filled in.

Clauses 1 to 1.17 of the document contain various particulars D in regard to the transaction. These include the names of the parties, the price, the amount of the deposit, a description of the property, the date upon which occupation was to be given, the amount of interest payable in respect of the outstanding balance of the purchase price and other similar matters. Various of these clauses were initialled by one Zotos, a E director of Zotos Brothers (Pty) Ltd, as well as the defendant and one Regnani, an agent in the employ of the plaintiff, who had negotiated the transaction. The defendant stated that all these clauses, save clause 1.2 which contained her personal particulars such as her marital status and date of birth, were blank when she signed the document. Some of the particulars in F these clauses have been typed in; others are in writing. According to the defendant even the typed clauses were blank at the time when she signed the document. Zotos initially stated that when he received the document all details had been inserted therein but, under cross-examination, said that at that time the date by which the deposit was payable was still blank. He then inserted the date, signed the document and G handed it back to the agent. The agent then went back to the defendant and the document was returned, signed by her. Regnani - as already mentioned, the agent who had negotiated the transaction - stated that the only details left in blank when the defendant signed the document were the section number H and dimensions of the stand (clause 1.4) and the amount of the deposit and the date upon which it was payable (clause 1.10). Although the section number was omitted at that time, the flat number had already been inserted and this, it would seem, according to Clements v Simpson 1971 (3) SA 1 (A), is a sufficient identification of the property purchased. Regnani said that after he had returned from the defendant's place of employment where she had signed the document, he checked the section number and dimensions with Zotos

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and the appropriate details were inserted by the latter. As regards the deposit the defendant had informed him that she was raising a loan on the security of a mortgage bond over property owned by her in Durban. According to him she had authorised him A to find out from the building society from which the loan had been sought when the funds would become available. When he ascertained the date he telephoned the defendant and informed her when the funds could be expected. As they would be forthcoming...