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FORM A

FILING SHEET FOR EASTERN CAPE JUDGMENT

PARTIES:

JOSE MANUEL RODRIQUES DE FREITAS Appellant

and

RALPH HUMAN Respondent

• Case Number: CA 80/07

• High Court: EASTERN CAPE DIVISION

DATES HEARD: 03/08/07

DATE DELIVERED: 13/11/07

JUDGE(S): REVELAS J, EBRAHIM J

LEGAL REPRESENTATIVES -

Appearances:

• for the Appellant(s): Adv. Beard

• for the defendant(s): ADV. De La Harpe

Instructing attorneys:

• for the Appellant(s): Netteltons

• for the respondent(s): Dullabh & Co

CASE INFORMATION -

• Nature of proceedings : Appeal

IN THE HIGH COURT OF SOUTH AFRICA

(EASTERN CAPE DIVISION)

Case No: CA 80/07

Date Heard: 03/08/07

Date Delivered: 13/11/07

In the matter between

JOSE MANUEL RODRIQUES DE FREITAS Appellant

and

RALPH HUMAN Respondent

APPEAL JUDGMENT

REVELAS J:

[1] The appellant, (the defendant in the court a quo), unsuccessfully opposed an application for summary judgment brought by the respondent (the plaintiff in the court a quo) in respect of estate agent’s commission. The basis of the defendant’s opposition to the application was his assertion that he had a valid and bona fide counterclaim against the respondent for occupational rental. I shall refer to the parties as they were in the court a quo.

[2] The commission in question was payable to the plaintiff (an estate agent) who introduced the defendant to a willing and able buyer who purchased certain land which the defendant wished to sell, and for which purpose he appointed the plaintiff as agent. The contract of sale stipulated (in clause 13 thereof) that “the Estate Agent commission to Aida” would be payable in the amount of R50 000.00. This was the amount claimed in the plaintiff’s summons.

[3] The plaintiff worked under the Aida franchise and his name appears on the first page of the offer to purchase the property opposite the word “Agent”. The defendant does not dispute his indebtedness to the plaintiff in respect of the commission claimed in the summons, which eventually led to the application for summary judgment.

[4] Clause 11 of the contract specifically excluded the payment of occupational rental in the event of the transfer and occupation of the property not coinciding. According to the defendant, occupation was taken before the offer to purchase was signed by him, and the occupants commenced with renovations. When he attempted to prevent the renovations and tried to persuade the occupants to vacate the property, a Mr Olivier requested him not to interfere with the renovations, as this could adversely affect the sale of the property.

[5] The defendant contends that Mr Olivier (also of Aida) was the plaintiff’s agent or employee. In support of this contention the defendant attached to his answering affidavit a covering letter from the plaintiff (on an Aida letterhead) ostensibly for the offer to purchase the property in question.

[6] The defendant stated that because of his concerns regarding the delays in finalising the sale and transfer, Olivier and he had concluded a verbal agreement after the offer to purchase was signed. He stated that in terms of that agreement, occupational interest would be paid to him at the rate of R10 500.00 per month. The period for which such monthly interest would have been payable is not specified in the defendant’s counterclaim nor is the counterclaim quantified.

[7] In granting summary judgment in favour of the plaintiff, the magistrate relied on clause 14 of the contract, which requires any variation to the contract to be in writing and signed by both parties. Because this was not done, he held that there was no bona fide counterclaim. The defendant argued that the magistrate had erred in his findings. In my view, the summary judgment granted by the magistrate is not open to challenge.

[8] The purchaser, and not the agent, would be liable for payment of occupational interest if it was provided for by the terms of the agreement (which it was not), and the only basis upon which an agent might be liable for such unpaid occupational interest, would be in the form of damages based in delict. The defendant did not frame his counterclaim in delict. The Heads of Argument filed on behalf of the defendant contains submissions in respect of delictual damages but that was not however the case before the magistrate. In his opposing affidavit the defendant did not allege that his claim for damages emanated from a failure by the plaintiff or Olivier to discharge their mandate diligently. Their mandate was discharged when the offer to purchase, which expressly excluded occupational rental, was signed by the defendant.

[9] Insofar as the defendant attempts to rely on a new contract concluded with Olivier, one would have expected such a contract to be in writing, particularly since the existing offer to purchase excluded the payment of occupational rental. The defendant has also never demanded payment for occupational rental, prior to his counterclaim, and on his version the amount owing would have been more that the commission claimed from him by the plaintiff. The existence of such a new contract is inherently improbable in the context of the existing contract of sale which was successfully concluded.

[10] Furthermore, the defendant has failed to show why any agreement with Olivier (whom he did not cite as a party) would bind the plaintiff. The covering letter attached to his answering affidavit does not constitute any form of agency or an employment relationship between the plaintiff and Olivier. In the particulars of claim the plaintiff alleged that both he and Olivier were mandated to procure a willing and able purchaser for the defendant’s property and that he (the plaintiff) accepted the mandate. The defendant did not dispute this allegation and ex facie the “Offer to Purchase” which was signed by the defendant in respect of the property that was eventually sold, the plaintiff (and not Olivier) was the agent involved in the sale.

[11] There is no factual basis to support a finding that defendant has a bona fide counterclaim, as envisaged by Rule 14(3)(c), against the plaintiff. The magistrate therefore did not err in granting summary judgment against the plaintiff.

[12] In the result, the appeal falls to be dismissed with costs.

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E REVELAS

JUDGE OF THE HIGH COURT

Y EBRAHIM J: I agree and it is so ordered.

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Y EBRAHIM

JUDGE OF THE HIGH COURT

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