Spes Bona Bank Ltd v Portals Water Treatment South Africa (Pty) Ltd

• Jurisdiction: South Africa
• Judgment Date: 26 November 1982
• Citation: 1983 (1) SA 978 (A)

Spes Bona Bank Ltd v Portals Water Treatment South Africa (Pty) Ltd
1983 (1) SA 978 (A)

1983 (1) SA p978

Citation	1983 (1) SA 978 (A)
Court	Appellate Division
Judge	Trengove JA, Botha JA, Trollip AJA, Smuts AJA and Nicholas AJA
Heard	November 16, 1982
Judgment	November 26, 1982

Flynote : Sleutelwoorde

Contract — Tacit contract — Proof of — Onus — Nature of. B

Headnote : Kopnota

The onus of proof in respect of any factum probandum in a civil case can be discharged on a balance of probabilities. The instance of a tacit contract is no exception to the general rule. That such a contract needs to be proved by way of inference from circumstantial evidence does not render the criterion of proof on a balance of probabilities inapplicable, C for in a civil case that criterion applies also to the drawing of inferences from proved facts.

The decision in the Witwatersrand Local Division in Spes Bona Bank v Portals Water Treatment 1981 (1) SA 618 confirmed. D

Case Information

Appeal from a decision in the Witwatersrand Local Division (NESTADT J). Facts not material to this report have been omitted from the judgment of BOTHA JA.

René Kruger SC (with him JC Labuschagne) for the appellant: The main issues are: (i) whether a tacit agreement of purchase and sale was concluded between appellant and the respondent; (2) whether the respondent is estopped from denying that such E agreement was concluded; and (3) whether the failure to call Smith, who was working for Transterra, is to be held against the plaintiff or not. The Court a quo erred in finding that the invoice dated 17 November 1975 did not constitute an offer by respondent to sell the plant for the sum of R50 250 to appellant. The invoice was a document intended to be used to F raise money. See Trust Bank of South Africa Ltd v Maharaj 1961 (2) SA 770. The Court a quo erred in finding that, if the invoice was not an offer to sell, it could not contain the alleged representation and that the whole basis of the plea of estoppel must fail. To constitute Pape's negligence one must view the matter objectively. See Alfred McAlpine & Sons v Transvaal Provincial Administration 1977 (4) SA at 335; G Musgrove & Watson (Rhodesia) (Pvt) Ltd v Rotta 1978 (2) SA at 918; 1978 (4) SA 656. In order to found an estoppel the misrepresentation may be either wilful or negligent. See Van Blommenstein v Halliday 21 SC at 11; Conradie v Jones 1917 OPD 112.

J H Coetzee SC (with him M S Stegmann) for the respondent: The ordinary meaning of "invoice" is: "a list of the particular items of goods shipped or sent to a factor, consignee, or purchaser, with their value or prices, and charges". See Oxford English Dictionary sv "invoice"; W F Johnstone and Co Ltd v Minister of Labour and Another 1945 NPD at 262; Universal Shipping Co (Pty) Ltd v Weston Distributing Co 1946 NPD at 263. H

Depending on the surrounding circumstances, the issue of an invoice may, by implication, be found to constitute an offer (or counter-

1983 (1) SA p979

offer) by one person to another to contract on terms to be gathered from the invoice. See R v Kramer 1948 (3) SA at 53; R v Calamas 1949 (2) SA at 746 - 7; R v Frankel 1951 (2) SA at 274 A - E. On the other hand, where a contract has already been concluded before the issue of the invoice, the surrounding A circumstances may show that the invoice has no contractual significance whatever. Cf R v Pearson 1942 EDL at 124 - 126; R v Berghaus 1942 EDL at 190 - 191; R v Soller 1945 TPD at 78 - 82. See also R v Walker 1945 EDL at 16; R v Hasson 1953 (4) SA at 270H; Christie The Law of Contract in South Africa (1981) at 62 - 63. The mere fact that the document in the present case B is an invoice cannot serve as the basis for any reliable inference whatever. What must be looked to are (a) the contents thereof; and (b) the circumstances surrounding the issue thereof.

The first requirement of an estoppel is that the appellant should prove that the respondent made a representation of fact C to the appellant.

Kruger SC in reply.

Cur adv vult.

Postea (November 26). D

Judgment

Botha JA:

The appellant was the plaintiff and the respondent the defendant in an action in the Witwatersrand Local Division, which culminated in the trial Judge (NESTADT J) dismissing the E appellant's claims, with costs. The present appeal is against that order. The judgment of the trial Judge has been reported: see Spes Bona Bank v Portals Water Treatment 1981 (1) SA 618 (W). The reported judgment sets out in great detail the pleadings, the issues and the evidence in the case (see 619G - 630D). There is no need to traverse the same ground. In what follows I shall assume that the reader is familiar with the F contents of the reported judgment; reference will be made only to such features of the pleadings, issues and evidence as are pertinent to an understanding of the considerations which in my view are decisive of the outcome of this appeal.

The appellant's case was founded upon an alleged agreement G between the appellant and the respondent, in terms of which the former purchased from the latter certain mining equipment, described as a Stellar Clarification and Precipitation Plant, for the sum of R50 250. It is common cause that the appellant paid R50 250 to the respondent and that the latter refused to H deliver the equipment to the appellant. The appellant's main claim was for repayment of the sum of R50 250 on the ground that it had cancelled the agreement, as it was entitled to do; in the alternative it claimed delivery of the equipment. Despite its admission that the appellant had paid it R50 250 and that it refused to deliver the equipment, the respondent denied not only that it had entered into any agreement with the appellant but also that it was obliged to repay the R50 250 or to deliver the equipment to the appel-

1983 (1) SA p980

Botha JA

lant. The explanation for this seemingly strange state of affairs is to be found in the facts that gave rise to the...