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Rodgerson v SWE Power and Pumps (Pty) Ltd (SA 10/90) [1990] NASC 1 (12 November 1990)
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IN THE SUPREME COURT OF NAMIBIA
In the appeal of
CASE NO. SA 10 / 90
P.M. RODGERSON
Appellant
and
SWE POWER AND PUMPS (PTY) LTD. Respondent
CORAM: BERKER, C.J. et MAHOMED, A.J.A. et DUMBUTSHENA, A.J.A.
Delivered on: 1990/11/12
APPEAL JUDGMENT DUMBUTSHENA, A.J.A.: This is an appeal from the judgment of the High Court of Namibia. The respondent, then the plaintiff at the trial,
sued the appellant, the defendant in the magistrate's court, for Rl 831.20 being the amount of money charged for goods sold and delivered
and work and labour done during the month of May, 1985. Both the Invoice No.146919 and the letter sent to the appellant by the respondent
dated 6 August 1985 do not mention the place where the goods were delivered and where the work and labour were done. However, during
the trial it did transpire that the work was done at Plot 29, Campinski, near Aris. The place belonged to a Mrs Grace Jooste from
who the appellant and her husband once rented the place. They moved away at the beginning of February 1985. A certain Mr Engels then
became the next tenant at the plot.
By May 1985 when the good's were delivered and installed at
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the plot, the appellant was no longer living at the plot. In the summons the respondent's claim was put down as a "claim against
defendant ... for payment of the sum/balance of Rl 831.20 for work and labour done and goods sold in connection therewith during
May 1985". No mention is made of the person at whose instance the work was done.
When the appellant requested for further particulars, the respondent said "that Mr Engels acting on behalf of Defendant, instructed
the Plaintiff to do the alleged work and labour on behalf of Defendant". The appellant denied, in her Plea, that she had instructed
Engels to act as her agent. She informed the respondent that she had left the plot at the beginning of February 1985 and that Engels
was the person who occupied the place after she left.
In its replication the respondent stated that the appellant was estopped from denying that Engels had no authority to act for her
for the following reasons:
"2.2.1 The Defendant intentionally alternatively negligently represented to the Defendant that the said Mr Engels was her duly
authorised agent in respect of the work done and materials and goods supplied on the plot, in the following manner:
(a) She failed to inform the Plaintiff before the issue of summons
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herein that Mr Engels had no authority to act on her behalf or that she vacated the plot during February 1985 and could not be liable.
(b)
She provided the Plaintiff with her personal postal address to enable Plaintiff to post the account to her without questioning her
liability in respect of the account.
(c)
Defendant failed to inform Plain tiff that she was not liable to pay the account after it was sent to her.
(d)
Defendant admitted liability and agreed to pay the amount due after a discussion between herself and Mr Gronau who represented the Plaintiff.
(e)
Defendant failed to inform Plain
tiff that not she but the said Mr
Engels was liable to the
Plaintiff and at all times
material represented to the
Plaintiff that she accepts
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liability in this regard." This appeal will succeed or fail on the question of the agency of Engels. It was Engels who told Gronau that he was acting on behalf of the appellant. At no time did the appellant represent to the respondent by word or conduct that Engels was her
agent. At the time the respondent entered into the contract there was no evidence suggesting even remotely that Engels had authority
to conclude contracts on behalf of the appellant. Gronau did not inquire about the whereabouts of the owner of the property. He did
not ask Engels to show him his principal, the person who was going to pay for the material supplied and the work done.
There is nothing on the record to suggest that Gronau was convinced at the time he concluded the contract with Engels that the property
at which the alternator would be installed belonged to the appellant. He believed whatever Engels told him. "It is of course clear that the fact of an agency cannot be established from the declarations of the alleged agent." per Nicholas, J., in Rosebank Television and Appliances (Pty) Ltd. v Orbit Sales Corporation (Pty) Ltd., 1969 (1) S.A. 300 at 303 D.
Having acted on the word of Engels the respondent found it difficult to prove that the appellant was his principal. When the respondent tried belatedly to get hold of Engels they could not
find him-. He had disappeared. And what is more the alternator and the engine had gone. Engels was not called to give evidence of the agency the respondent had
5 -
relied upon. The respondent could not prove that Engels had actual authority to bind the appellant. On appeal the Court ’
quo found that there was actual authority. In this Court both counsel were agreed that actual authority could not be proved on the evidence adduced at the trial.
In order to establish the existence of actual or ostensible authority the respondent sought to rely on what the appellant said long
after the respondent had completed the* work at the plot. The Court a_ quo, so it seems to me, used that evidence to come to the conclusion that there was actual authority. The learned Judge said in his judgment:
"When her evidence is weighed against the evidence of Lehnert and Gronau as to what she said at the meeting, the probabilities
are that she did acknowledge her liability and agree to pay. She would not have done this had Engels not been authorised to engage
plaintiff's services as alleged by Gronau."
If the evidence of the acknowledgement of liability had been well canvassed at the trial, the Court a_ quo would have, in my view, come to a different conclusion. This evidence might not have been well canvassed because the respondent realised
that the admission of liability was not its cause of action. This might account for the fact that the respondent did not apply to
amend the summons to include the admission of liability as an alternative cause
of action.
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Mr Frank did acknowledge that admission of liability does support a cause of action. Having pleaded it in its replication, the respondent
ought to have applied to amend the summons. Mr. Frank relied on Adams v S.A. Motor Industry Association, 1981(3) S.A. 1189(A) at 1198 B-D where Jansen, J.A., remarked as follows:
"There is ample authority to the effect that an acknowledgment of debt, provided it is coupled with an express or implied undertaking to pay that debt, gives rise to an obligation
in terms of that undertaking when it is accepted by the creditor; and it does not matter whether the acknowledgment is by way of an admission of the correctness of an account or otherwise. (Cf Divine Gates & Co Ltd v Beinkinstadt & Co 1932 AD 256; Somah Sachs (Wholesale) Ltd v Muller & Phipps SA (Pty) Ltd.,1945 TPD 284; Mahomed Adam (Edms) Bpk v Raubenheimer, 1966(3) SA 646 (T). In Christou v Christoudoulou, 1959(1) SA 586T there are dicta to the effect that an admission in respect of an existing debt cannot "found an independent cause of action" unless it amounts to a novation (at 587G-588A). This, with respect,
appears to rest on a misapprehension. There can be no objection in principle to a second obligation arising in respect of an existing
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debt, and this appears to have been recognized by this Court (smit v Rondalia Versekeringskorporasie van Suid-Afrika Bpk., 1964(3) SA 338 (A) at 364 G)."
As it happened the respondent did not amend the summons. It cannot now seek to rely on the admission of liability, which although
mentioned in the replication is not a cause of action. If the respondent wanted to rely on it the summons should have been amended.
In Broad v Bloom, 1903 TS 427, a case in which the plaintiff alleged in the declaration that there was a sale for cash, and that the amount of the
cash agreed to be paid was ’864 10s. 10^d. In the replication the plaintiff said that the amount of ’864
10s. 10^d was not agreed upon, but that it was agreed upon that the goods should be delivered over for an amount to be at the judgment
and discretion of Dyer. It was held that the cause of action differed from that laid down in the declaration. It should have been
set out in the declaration. The replication was ordered to be struck out. In Knightsbridge Investments (Pvt) Ltd. v Gurland, 1964(4) S.A. 273 (SR), a case in which the plaintiff in the summons claimed payment of an amount of money on an instrument of debt
not complying with the Usury Act, Chapter 228 (S.R.) and in his replication the new claim was founded on a condicto, the basis being one of unjust enrichment at the plaintiff's expense, Lewis J., as he then was, remarked as follows at 279 B - C:
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"It (the plaintiff) thus placed the reliance
upon a different cause of action from that
relied upon in the summons, and,
accordingly, it should have been introduced
by way of amendment to the summons and
particulars thereof and not by way of
amendment to the replication. See United
Dominions Corporation Limited v Van Eyssen,
1961(1) SA 53 (S.R.) at page 58."
Besides what I have said above a close examination of the evidence does not seem to me to prove on a balance of probabilities that
she accepted liability to pay. If she intended to pay she would have told Gronau and Lehnert that Engels was her agent. She would
have then agreed to pay. There was reluctance on her part to see Gronau and other members of the respondent company. She did not
unconditionally accept liability to pay. She did say if it were proved that it was through her fault that repairs were required to
be made, then she would pay. It had to be proved that she had done something wrong that had caused faults in the engine and alternator and only then would she pay. She did not categorically say: "Inspite of everything, I am going to pay". It must be remembered that she was once
a tenant at the plot. She might have thought that during the currency of her tenancy something wrong might have happened to the engine.
If someone had said she was responsible for the breakdown of the equipment that had been repaired, she would have paid. This is how
I understand her evidence. It is not an unequivocal
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acceptance of liality. Even if it were the unsatisfactory nature of the evidence which was not canvassed in depth and the fact that
there was no amendment to the summons would not have entitled the respondent to a judgment in her favour. She was no longer a tenant
at that place. She had left the plot in February 1985. The repairs were done in April 1985.
On the evidence she was not estopped from denying that Engels was not her agent. She did not conduct herself so "that a reasonable
man would believe that he was assenting to the terms proposed by the other party, and that other party upon that belief enters into
a contract with him, the man thus conducting himself would be equally bound as if he had intended to agree to the other party's terms".
Per Van Blerk, J.A., in Benjamin v Guarewitz, 1973(1) S.A. 418 (A) at 427 E.
See also Van Ryn Wine and Spirit Co. v Chandos Bar, 1928 T.P.D. 417.
In this case the respondent failed to show the words or conduct of the appellant which induced the respondent to enter into the contract
to service the engine and install the alternator. There is no evidence of the representation that was made to the respondent which
induced it to believe that Engels was appellant's agent with authority to bind the appellant. Failure to inform the respondent before
summons were issued that Engels had no authority or the fact that she gave her postal address to the respondent or
10 -
the fact that she failed to inform the respondent that she was not liable to pay or that she agreed to pay were all events or a series
of conduct that took place long after the contract was agreed upon and executed. The respondent had already delivered the goods and
completed the work. They cannot be remotely considered as representations that made the respondent to believe that Engels had authority
to deal with the respondent on behalf of the appellant. These acts or utterances of the appellant do not fall within the ambits of
the agency by estoppel so admirably described by Stratford, J.A., in Monzali v Smith, 1929 A.D. 382 (A) at 385 in these words:
"To establish agency by estoppel there are
two requisites: first, the principal sought
to be bound must represent by his words or
conduct that the person professing to bind
him has authority to do so, and secondly,
that the person to whom the profession is
made acts on the faith of the representation
to his prejudice. The rule is stated in
Bowstead on Agency (4th ed., art. 88) thus:
'Where any person by words or conduct,
represents or permits it to be represented
that another person has authority to act on
his behalf, he is bound by the acts of such
other person with respect to any one dealing
with him as an agent on the faith of any
such representation, to the same extent as
if such other person had the authority which
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he was so represented to have.' But the representation whether by words or conduct must be of such a nature that it could reasonably have been expected to mislead."
Can a representation made after the contract has been concluded and executed meet one of the essential elements of estoppel which
is, that the conduct or words or representation must be "of such a nature that it could reasonably have been expected to mislead,
or to induce in the representee a belief in the existence of a particular state of facts". Per Miller, J.A., in Union National South British Insurance v Padayachee, 1985(1) S.A. 551 (A) at 562 (A). The facts of this case fail to meet this essential element of estoppel for the reasons already
mentioned.
The respondent failed to show that it was misled by the appellant whom it seeks to hold liable as principal to believe that Engels
who purported to act on the appellant's behalf had authority to conclude the contract and that the respondent acted on that belief
to its prejudice. See LAWSA, Vol.1, par.137.
It is not necessary in this appeal to deal with the other issues raised by counsel in their written heads of arguments because it
became clear during oral argument that the respondent was not misled by the appellant to belief that Engels had authority to bind her. It also became clear that the respondent could not rely on appellant's alleged admission of liability as a cause of action because the
12 -
respondent did not apply to amend the summons to include admission of liability as an alternative cause of action.
Accordingly the appeal is allowed with costs.
DUMBUTSHENA, A.J.A
I concur:
BERKER, C.J.
I concur:
MAHOMED, A.J.A.
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Adv. T.J. Frank on behalf of Appellant Instructed by: A. Vaatz & Co.
Adv. G.H.Oosthuizen on behalf of Respondent Instructed by Engling, Stritter & Partners
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