Sonday v Surrey Estate Modern Meat Market (Pty) Ltd

• Jurisdiction: South Africa
• Citation: 1983 (2) SA 521 (C)

Sonday v Surrey Estate Modern Meat Market (Pty) Ltd
1983 (2) SA 521 (C)

1983 (2) SA p521

Citation	1983 (2) SA 521 (C)
Court	Cape Provincial Division
Judge	Tebbutt J and Berman AJ
Heard	September 20, 1982
Judgment	February 18, 1983

Flynote : Sleutelwoorde

Estoppel — By representation — Whether fault a requirement — Not such a requirement in instances other than vindicatory actions — Accordingly not necessary to plead and B establish negligence where action not vindicatory.

Vindication — Defence of estoppel by representation — Fault, at least in the sense of culpa, a requirement.

Headnote : Kopnota

While, because of the high premium our law places upon the rights of ownership and the fact that their denial should not C be lightly granted, a requirement in any operation of estoppel by representation in regard thereto should be fault, at least in the sense of culpa; it would seem that no warrant exists in our law of estoppel, the basis of which appears to be the exceptio doli, for regarding fault as a requirement for the defence of estoppel in instances other than vindicatory actions. Accordingly, in a case which is not a vindicatory D action, it is not necessary for the party relying on estoppel to plead or establish negligence on the part of the other party.

Case Information

Appeal from a decision in a magistrate's court. The facts appear from the reasons for judgment.

J J Gauntlett for the appellant.

E Sakinofsky for the respondent. E

Cur adv vult.

Postea (February 18). F

Judgment

Tebbutt J:

The question for decision in this appeal is whether fault, in the sense of either dolus or culpa, is a requisite in a defence of estoppel in an action other than a vindicatory one.

The parties in the magistrate's court signed a statement of admitted facts in terms of Rule 29 (6) of the Magistrates' G Court Rules and asked the magistrate to determine as a question of law an issue of estoppel raised by one of the parties. Those facts, together with the relevant facts arising from the pleadings and the supporting documents, are the following. Plaintiff and first defendant in the magistrate's court action, to whom I shall refer as Samsodien, entered into H an agreement of lease for a period of three years in respect of certain premises, which tenancy commenced on 1 April 1980, at a monthly rental of R190 per month. A written agreement of lease was duly signed by Samsodien on 28 April 1980 and by plaintiff on 7 October 1980. It was a condition of the lease that second defendant, to whom I shall refer as Sonday, should bind himself as surety and co-principal debtor for the obligations of Samsodien under the lease, which suretyship was duly signed

1983 (2) SA p522

Tebbutt J

by Sonday. Occupation was taken by Samsodien of the leased premises, which are situated in a Coloured group area. Samsodien is, however, a member of the Indian group who is accordingly not entitled to occupy the leased premises. A Samsodien failed to pay the rental for September and October 1980, amounting to R380 and plaintiff, as it was entitled to do under the lease, cancelled the lease and claimed Samsodien's ejectment from the premises. It also claimed payment of the arrear R380 from Sonday who had renounced the benefit of B excussion. Sonday's defence was that he was relieved from any liability under the lease because it was invalid ab initio in that Samsodien, as an Indian, was by law precluded from occupying premises in a Coloured group area and that therefore his suretyship also was of no force and effect. It is an agreed fact, however, that, and I quote:

"On or about 16 April 1980 and at Athlone, Cape, Sonday orally C represented to one Bray acting for and on behalf of plaintiff that Samsodien was a member of the Coloured group and thus entitled to conclude the agreement of lease and occupy the premises in question. By so representing, Sonday induced plaintiff reasonably and bona fide to believe, and to act upon such belief to its prejudice, that Samsodien was in fact a member of the Coloured group".

D Plaintiff accordingly averred in a replication that Sonday was estopped from denying that Samsodien is a member of the Coloured group and from contending that the agreement is invalid.

The magistrate found that plaintiff's plea of estoppel succeeded and granted judgment in favour of plaintiff against Sonday in the amount of R380 with interest and costs. Sonday E now comes on appeal to this Court against that judgment.

I shall, for the sake of convenience, continue herein to refer to the appellant as Sonday and the respondent as plaintiff.

Before the magistrate a number of issues were raised by Sonday in respect of all of which the magistrate found in plaintiff's F favour. Two of these were that no prejudice or potential prejudice had on the facts been established by plaintiff and that there was no indication that Bray was a director of plaintiff's company or had by resolution been authorised to act on plaintiff's behalf so that no representation had been made to plaintiff personally. Neither of these were raised or G persisted in on appeal. Nor was the third and major issue raised before the magistrate persisted in on appeal, viz that because the lease between plaintiff and Samsodien was invalid, Sonday's suretyship was invalid and plaintiff could not, regard being had to the mischief sought to be remedied by the Group Areas Act, in the public interest be allowed to plead an estoppel.

H It is quite clear that, having regard to the provisions of the Group Areas Act, the lease between plaintiff and Samsodien was invalid ab initio. It is also clear, generally speaking, that, where in a suretyship agreement the principal obligation is void or unenforceable, the accessory suretyship is also void (see Caney Suretyship 3rd ed at 37). In this instance the suretyship agreement is accessory to the main agreement of lease. Plaintiff was not therefore able to rely on the suretyship agreement per se to succeed in its claim against Sonday. It

1983 (2) SA p523

Tebbutt J

had to rely on Sonday's being estopped from asserting that the lease did not legally permit Samsodien's occupation of the leased premises as the latter is an Indian and not a Coloured person and that his suretyship is therefore invalid, in the light of Sonday's representation to the plaintiff that A Samsodien was a member of the Coloured group, which representation, according to the agreed facts, induced plaintiff reasonably and bona fide to believe and to act upon such belief to its prejudice. In other words, plaintiff was not seeking to rely on an invalid agreement, but on the equitable remedy of estopping Sonday from relying on such invalidity. It has, I think, now been clearly held that a plaintiff can in such circumstances plead and rely upon an estoppel - B provided all the necessary elements of such an estoppel are present - even where the suretyship concerned is accessory to an invalid principal obligation (see Trust Bank van Afrika Bpk v Eksteen 1964 (3) SA 402 (A) at 412, 416; Trust Bank of Africa Ltd v Appletime Engineering (Pty) Ltd and Others C 1981 (1) SA 374 (D)). It was on this basis that the magistrate found, quite correctly in my view, for the plaintiff.

As I have said, Sonday on appeal to this Court did not seek to attack the magistrate's finding in this regard. He, however, raised before us an entirely new point and one not taken in the magistrate's court, viz that, for a defence of estoppel to succeed, fault on the part of Sonday had to be established on D the facts. This, it was contended on his behalf, was a necessary element in the defence of estoppel. It was, however, neither pleaded nor established. The only elements of estoppel established by the admitted facts, so the contention went, were (a) a material misrepresentation by Sonday to the plaintiff; (b) which induced plaintiff reasonably and bona fide to believe in its truth and to act thereon; (c) to plaintiff's prejudice, E and it was not pleaded or proved that Sonday had in making the misrepresentation acted either with the intention to deceive the plaintiff (dolus ) or negligently (culpa ). Unless either dolus or culpa were present, it was argued, estoppel did not arise.

It is now clear law both in English law and in our law that F dolus is not an essential element of estoppel (see De Wet "Estoppel by Representation" in die Suid-Afrikaanse Reg at 38 - 39; per Rabie in Joubert The Law of South Africa vol 9 para 381 at 202; Hoffmann and Zeffertt South African Law of Evidence 3rd ed at 270; Connock's (SA) Motor Co Ltd v Sentraal Westelike Ko-operatiewe Maatskappy Bpk 1964 (2) SA 47 (T) at 49F - H). G It would, therefore, not be necessary to plead or establish that the representation upon which a defence of estoppel is based was made with the intention to deceive.

As to the question whether fault in the form of culpa, or negligence, is a prerequisite to the operation of estoppel, our law would not appear to be in a settled state and there has as H yet been no clear definition of the areas in which culpa is or is not a requisite. As Rabie in Joubert (loc cit ) says, there has as yet been no clear and simple answer to the question that would hold good in all situations and in all types of cases. It has for example been decided by the Appellate Division per STEYN CJ, with VAN BLERK, WESSELS and JANSEN JJA concurring, RUMPFF JA (as he then was) dissenting, that, save in certain exceptional circumstances, it is necessary to prove negligence on the part of

1983 (2) SA p524

Tebbutt J

the person whom it is sought to estop from vindicating his property (see Johaadien v Stanley Porter (Paarl) (Pty) Ltd 1970 (1) SA 394 (A); Grosvenor Motors (Potchefstroom) Ltd v Douglas 1956 (3) SA 420 (A) at 427B - E). STEYN CJ, however, stated A that it did not follow that the law...