Van As v Kotze
| Jurisdiction | South Africa |
| Judge | Olivier J |
| Judgment Date | 05 April 2019 |
| Docket Number | 1646/2015 |
| Court | Northern Cape Division |
Olivier J:
INTRODUCTION
The farm Mamaghodi near Postmasburg was in the possession of the Van As family for 78 years. This case is about the tragic loss of the farm by the Van As family. More recently the farm belonged to the late Mr GC Van As [1] , who farmed and lived there since 1962, with his wife, Mrs JEW Van As, to whom he was married in community of property. Mr and Mrs Van As had four sons, Mr Jacques Van As, who is the plaintiff in the present matter, Mr Theo Van As, Mr Christo Van As and Mr Werner Van As.
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During and about the year 2009 negotiations took place between Mr and Mrs Van As on the one hand, and Sishen Iron Ore Company ("Sishen"), on the other. Sishen wanted to purchase the farm, as well as other farms in the area, in order to erect a railway line over the properties. The negotiations resulted in the conclusion, on 23 June 2009, of a sale agreement of which the salient terms, for present purposes, were as follows:
The farm was sold to Sishen.
The sellers, in other words Mr & Mrs Van As, could carry on occupying the farm for a period of five years in terms of a lease.
The sellers had the right to buy back the farm at a fixed price (for the sake of convenience this right will hereinafter where necessary be referred to as "the option") [2] .
It was agreed that the farm could be bought back after the completion of the railway line, but within a period of five years of the conclusion of the sale agreement, and that notice of the intention to exercise the option would have to be given to Sishen at least three months prior to the expiry of the five year period from the date of the conclusion of the contract.
Within 60 days of such notice the purchaser would have to furnish Sishen with a bank guarantee for the full amount of the purchase price and the value added tax thereon.
The sellers were entitled to cede the option, and in such event they would have to notify Sishen in writing of their intention to cede.
By that time the late Mr Van As was already of an advanced age, and he felt that he was no longer physically able to carry on the farming business alone. Of the four sons only the
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plaintiff was interested in taking over the farm. At the time he lived in Johannesburg, with his wife and two children, where he was permanently employed. He resigned from his position and he and his family relocated to the farm. The children were placed in a boarding school and the plaintiff's parents moved to an old age home in Postmasburg.
The plaintiff then effected significant improvements on the farm at his own expense. It is undisputed that the plan was for the option to be ceded to the plaintiff and for him to eventually exercise it, and to become the owner of the family farm. It is also undisputed that the intention of the plaintiff's parents was that the proceeds of a particular policy or investment would be made available to the plaintiff to enable him to pay the purchase price.
As will appear from what follows the defendant, Mr Nicolaas Johannes Kotze, who practises as an attorney for his own account under the name and style of Johan Kotze Attorneys in Postmasburg, drew up a cession agreement, which provided for the cession of the option to the plaintiff. There is a dispute about where and when the cession agreement was signed, to which I will revert.
The option lapsed late in March 2014, without having been exercised. The plaintiff's parents were notified of this in July 2014, and in August 2014 they were notified that the lease had also expired. The plaintiff eventually vacated the farm, and all movable assets were sold on auction. He moved to Postmasburg, where he now lives in a house that belonged to his parents, and where he has a shop. He and his wife got divorced; he believes as a result of these events. The loss of the farm has affected the plaintiff emotionally, and he has difficulty to sleep and has to take sedatives.
In August 2015 the plaintiff issued summons against the defendant, claiming damages in an amount of R5 618 545.90. The plaintiff's main cause of action is that the defendant failed to execute an instruction to take steps to ensure the exercise the option. In the alternative the plaintiff relies on a breach of an alleged duty of care on the part of the defendant. The quantum of the damages was settled, and only the liability of the defendant remained in dispute.
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The evidence of the plaintiff was presented, as well as the evidence of his mother and of Mr M Coetzee on his behalf. For the defence the defendant testified, and the evidence of Mrs Brits was presented on his behalf.
The plaintiff bore the onus to prove the mandate agreement [3] . The same applies to the plaintiff's allegations of the breach of a legal duty [4] .
In considering the conflicting versions that will be dealt with in due course, regard will be had to, inter alia, the probabilities [5] .
BACKGROUND
In order to understand the relationship between the plaintiff and the defendant it is necessary to deal with the sequence of certain events that preceded the lapse of the option.
The consultation of 1 February 2012 and the debt collection
The plaintiff made an appointment to consult the defendant on 1 February 2012. This appointment is reflected in the office diary of the defendant, which was kept by his receptionist. The consultation was attended by the plaintiff and his father. The plaintiff completed a standard form, that is completed by clients who consult the defendant and the contents of which would then, once the defendant accepts the instructions given to him (presumably in the form), constitute an agreement between the client and the defendant. The plaintiff neglected to describe the defendant's instruction or mandate in the designated space in the form ("mandate form"). He did, however, record his identity number in it.
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During that consultation the defendant made certain notes, the contents whereof are not really relevant for present purposes. Suffice to say that they concerned instructions by both the plaintiff and his father about debts owed to them by Mr Theo Van As. There is a dispute about whether the defendant was on that occasion given an address for Mr Theo Van As, and for what purpose he was given the contact details of an employee of Absa Bank. This too is irrelevant for purposes of the issues to be decided in this matter. The same applies to whether the plaintiff asked the defendant, at that stage, not to take any steps whatsoever on his behalf yet, while he awaited payment of an amount that had apparently been agreed upon in settlement talks between the plaintiff and Mr Theo Van As, or whether the defendant was instructed to demand payment of that particular debt, but not to issue summons in respect of it yet.
A file was then opened in the defendant's office in the name of the plaintiff, but cross-references to the name and telephone number of his father were recorded on the cover of the file. The defendant's undisputed evidence was that this was done because the plaintiff's father lived in the town of Postmasburg and would be easier to reach than the plaintiff, who lived on the farm.
On 10 April 2012 the plaintiff called the defendant and told him not to take any action against Mr Theo Van As in respect of the debt owing to him, pending further instructions, as Mr Theo Van As had paid part of the debt owing to him. A note on the plaintiff's file confirms this call.
On the defendant's version he and the plaintiff did not, in the period between this telephone call and the expiry of the option, have any further contact at all, while on the plaintiff's version they did indeed have contact again, according to the plaintiff:
when the defendant was instructed to not only see to the cession of the option, but also its exercise; and, shortly thereafter,
when the cession was according to the plaintiff signed in the defendant's presence and in his office.
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These issues will be reverted to.
On 20 April 2012 the defendant sent a letter of demand to Mr Theo Van As, claiming payment of the money owing by him to his parents. The letter was sent to an address which turned out not to be the address of Mr Theo Van As.
At some time between 15 and 18 May 2012 notes, in the handwriting of the plaintiff's father, were left at the reception of the defendant's offices. One of the notes was dated 15 May 2012 and was addressed to the defendant, and the other to the plaintiff. The defendant was instructed to immediately proceed with legal steps against Mr Theo Van As for the recovery of the amount owing by him to his parents, and the defendant was furnished with an address for Mr Theo Van As [6] . In the note to the plaintiff he was requested to drop off the notes at the offices of the defendant and to remind the defendant of the money owing to the plaintiff himself. The plaintiff was requested to give the defendant a telephone number for Mr Theo Van As. For the sake of convenience these notes will be referred to as the "15 May notes".
On 21 May 2012, and clearly on the strength of the 15 May notes, letters of demand (dated 18 May 2012) were sent to Mr Theo Van As in respect of the debt owing to his parents and the balance still owing to the plaintiff. The defendant's evidence was that he demanded payment of the balance owing to the plaintiff despite the plaintiff's call of 10 April 2012, because he saw the 15 May notes as an instruction not only in respect of the debt owing to the parents, but also in respect of the balance owing to the plaintiff. Whether the defendant was correct in this...
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