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IN THE HIGH COURT OF SOUTH AFRICA

(TRANSVAAL PROVINCIAL DIVISION)

Date: 01/02/2008

Case number A665/2007

UNREPORTABLE

In the matter between:

CHRISTIAAN JOHANNES BISCHOFF Appellant (Defendant a quo)

and

MORNé MARTIN DU PLESSIS First Respondent (First Defendant a quo)

GERTRUIDA C DU PLESSIS Second Respondent ( Second Defendant

a quo)

JUDGMENT

BOTHA J:

This is an appeal against a judgment in the Magistrate’s Court, Pretoria. The magistrate upheld the claim of the plaintiffs in an amount of R8 807.98 and dismissed the defendant’s counterclaim. The defendant now appeals against the judgment.

I shall continue to refer to the parties as the plaintiffs and the defendant.

It is common cause that on 20 September 2004 the parties concluded a written deed of sale in terms of which the defendant bought an immovable property from the plaintiffs. It was a house situate at 250 Canna Street, Doornkloof. In terms of clause 4.1 the purchase price was R 500 000.00. In clause 7.1.1 it was recorded that the property was being leased and that occupation could only be given subject to the rights of the lessee. In clause 7.1.2 it was stated that occupation would be given on “soos ooreengekom”. Clause 7.3 provides for occupational interest or rental in an amount of R 4 000.00 per month to be paid by the party in occupation to the party in whose name the property is registered in the event of the date of transfer and the date of occupation not coinciding. Clause 8 provides that the purchaser shall pay the transfer costs. Clause 12 records that the document contains the whole agreement between the parties and provides that it can only be amended in writing signed by both parties. Clause 13 provides that estate agent’s commission of R 30 000,00 shall be payable by the seller out of the purchase price to Caesars Estates and Realty Elk 1 Annlin ( 9000) in the ratio of 70:30.

There apparently was an addendum to the deed of sale. The addendum was not produced during the trial. It was common cause, however, that the estate agent’s commission of R 30 000.00 and transfer costs and other costs to a maximum of R 40 000.00 had to be paid out of the purchase price.

The plaintiffs gave their tenant one calendar month’s notice and by 1 November 2004 the property was ready for occupation.

The property was registered in the name of the defendant on 3 February 2005.

The defendant only took occupation of the property on 7 February 2005 when he received the keys of the property from the plaintiffs’ attorney, Mr van Rensburg. On that day the defendant visited Mr van Rensburg and signed a document prepared by him. The document is titled “Agreement to pay debt in instalments”. In the document the defendant agreed to pay an amount of R 9 807.98 to the plaintiffs in monthly instalments of R 1 000.00. It is stated that the amount represented the capital of a debt arising out of “rental money”. The first instalment had to be paid before the end of March 2005. The parties referred to the document as an acknowledgment of debt. It stated that it was not a novation of an existing liability. It was signed by the defendant and the plaintiffs’ attorney. The defendant only paid the first instalment of R 1 000.00.

The original particulars of claim were based on the document dated 7 February 2005. It is stated that the amount claimed represented occupational interest. In additional further particulars a copy of the deed of sale was annexed.

The defendant pleaded that the he signed the document dated 7 February 2005 under the mistaken impression that it related to interest due to the mortgagor for the period between the approval of the bond and transfer. Then he pleaded that Mr van Rensburg had unduly influenced him in that he acted in an intimidating way and refused to hand over the keys of the property unless he signed the document. It was pleaded that the defendant was not given the opportunity of having the document drafted in the language of his choice. It is also alleged that the particulars of claim do not disclose a cause of action because occupational interest could not be payable where the deed of sale did not mention a date of occupation.

The defendant filed a counterclaim in which he claimed R 4 049.15 composed of three amounts:

1. an amount of R 2 477,73, which represents the difference between the amount of R 40 000,00 allowed for costs and R 37 522,27, which was the actual amount of the costs;

2. an amount of R 1 000,00 paid as the first instalment in terms of the document dated 7 February 2005; and

3. an amount of R 571,42 being occupational interest for the period between registration and transfer and occupation.

The plaintiffs then filed amended particulars of claim in which they relied on an oral agreement concluded on 20 September 2004 between the plaintiffs and the defendant represented by an agent called Renée. In the introductory paragraphs reference is made to the deed of sale, also concluded on 20 September 2004. It is alleged that the purchase price was R 500 000.00 which included estate agent’s commission of R 30 000,00 and an amount of R 430 000,00 to be paid to the plaintiffs. The balance of R 40 000.00 had to be used to pay various costs. It is alleged that those costs amounted to R 37 522.27, leaving a balance of R 2 477.73.

The alleged oral agreement was to the effect that the defendant would get occupation on 1 November 2004 and that he had to pay occupational rental in an amount of R 4 000.00 per month as provided in the deed of sale. It is alleged that the property was duly made available and that the defendant failed to take occupation. It is alleged that the defendant breached the oral agreement and that the plaintiffs suffered damage in an amount of R 12 285.71. That amount represented occupational rental at R 4 000.00 per month from 1 November 2004 until 2 February 2005. From the amount of R 12 285.71 the plaintiffs deducted the shortfall of R 2477.73 referred to above and the instalment of R 1 000.00 paid by the defendant, leaving a total of R 8 807.98. There was an alternative claim for R 5 736.55 based on the rental of R 3 000.00 per month paid by the tenant whom the plaintiffs had given notice in order to make the property available for occupation by the defendant.

In an amended plea the defendant in essence denied the alleged oral agreement.

The plaintiffs called two witnesses: the second plaintiff, Mrs du Plessis and their attorney Mr van Rensburg.

Mrs du Plessis testified that the deed of sale was presented to her and her husband by an agent in the employ of Caesars, one Renée Harmse. The defendant was not present. She never had dealings with the defendant. He must have signed the deed of sale after she and her husband had signed it. She confirmed that the property was subject to a lease. She told the agent that she would give the tenant one calendar month’s notice, making the property available for occupation by 1 November 2004. The agent undertook to communicate that to the defendant. She was given to understand that the defendant was keen to take occupation. They then gave their tenant notice and the property was available to be occupied. There was no occupation. She could not get hold of Mrs Harmse. She took the keys of the property to Mr van Rensburg. The next communication that she received was when Mr van Rensburg informed her of the acknowledgment of debt. She assumed that Mrs Harmse represented the defendant.

Mr van Rensburg testified that the allegation that the defendant was under the impression that the amount of R 9 807.00 represented interest on a bond made no sense. He denied that he intimidated the defendant. He had no impression that the defendant did not understand English. They spoke Afrikaans. They worked through the document. He could not remember whether he refused to hand over the keys unless the defendant signed the document. He could not remember why the keys were kept at his office. He could also not remember why occupation was not taken. He had no knowledge of the alleged oral contract. He only concentrates on what is in writing. He confirmed that he telephoned the defendant and told him that transfer had been registered. He agreed that he could have told the defendant that if he did not pay the occupational rental he would sue him. He could not remember what was said about a summons. As far as he was concerned the defendant signed the acknowledgment of debt because he admitted his indebtedness.

At the end of the plaintiffs’ case the defendant’s counsel asked for absolution from the instance. It was refused on the basis that the acknowledgment of debt could be indicative of the alleged oral agreement.

The defendant testified that he was approached by two estate agents. One was from Wizards and the other from Flash Bonds. Their names were Lilize and Heleen. He knew them from a restaurant of which he was the manager. Heleen took him to an attorney. He was waiting to move into the property. He and his wife were living in a garage at the home of his mother in law. In February 2005 Mr van Rensburg telephoned him and told him that if he paid R 9 800.00 he would get the keys of the house. He went to see him. Mr van Rensburg said that he would only hand over the keys if the money is paid. He told him that he did not have the money. He asked Mr van Rensburg whether they could not devise a way in which he could pay. Mr van Rensburg put a document on the table and said that he had to sign it before he could get the keys. He confirmed that his father was an attorney (actually his attorney of record). In October 2004 he had problems with his father. He denied that he knew the person called Renée. Nobody telephoned him to tell him that he could move in. Heleen worked for Splash Bonds and Lilize for Wizards. He was never told that the property was vacant. Mr van Rensburg was very brusque with him. Mr van Rensburg did not threaten him with violence. When Mr van Rensburg said that he would not get the keys unless he paid the money, he became scared. He asked what he had to do in order to get the keys. He said that he became reconciled with his father by Christmas 2005. He repeated that he signed the acknowledgment of debt because he had become scared. He was never told that he could take occupation on 1 November 2004.

That summarizes the evidence.

The magistrate remarked that there was nothing wrong with the evidence of the defendant. He was ingenuous. He described him as an uncomplicated person. He found, however, that the defendant corroborated the plaintiffs’ case. He observed that the defendant did not take occupation on 1 November 2004 because he could not remember. He described defendant as rash and considered the way in which he signed the acknowledgement of debt as typical of his rashness. He referred to the maxim caveat subscriptor and found that the defendant was liable.

It is important to take into account that the plaintiffs’ case is based on an alleged oral contract concluded on 20 September 2004 between the plaintiffs and Mrs Renée Harmse representing the defendant. The plaintiffs could have relied on the acknowledgment of debt as a fresh cause of action even if it did not novate the existing debt. See Mahomed Adam (Edms) Beperk v Raubenheimer 1966(3) SA 646 T. That is indeed what the plaintiffs did in the original particulars of claim. In the amended particulars of claim the plaintiffs relied on an oral agreement concluded on 20 September 2004. They claim damages resulting from a breach of that agreement. They do not rely on the acknowledgment of debt as a substantive cause of action. The acknowledgment of debt is only relevant to the extent that it is a factum probans from which the factum probandum, the alleged oral agreement, can be inferred.

In my view the magistrate lost account of the basis of the plaintiffs’ claim when he referred to the maxim caveat subscriptor ( pasop wat jy teken). He also erred when he found that the defendant must have forgotten that he could take occupation on 1 November 2004. There was no basis for such a finding. It is highly unlikely that the defendant, in his circumstances, living in a garage with a pregnant wife and looking forward to move into his first house, would have let the date of occupation slip out of his mind. The defendant denies that he was ever told that he could occupy the property on 1 November 2004. There is no reason to doubt his evidence. His evidence is the only evidence on this issue. The only person who could dispute his evidence in this regard, is Mrs Harmse who was never called.

The evidence of Mrs du Plessis does not really prove the conclusion of an oral agreement. She merely testified about what she told Mrs Harmse. She also simply assumed that Mrs Harmse was acting on behalf of the defendant. She made certain communications to Mrs Harmse but there is no proof that they were conveyed to the defendant. In the normal run estate agents do not have authority to conclude contracts on behalf of the parties between whom they act as an intermediaries. They are conduit pipes. See Bird v Summerville and Another 1961(3) SA194 AD at 202 B-G. The defendant denied that he ever had any dealings with Mrs Harmse or a person called Renée. There is no reason to question his evidence in this regard. Having regard to the fact that two agents were involved, even to the extent that they shared the commission, it is very likely that Mrs du Plessis dealt with one agent and the defendant with another. That Mrs Harmse did not complete her work is not unlikely if one has regard to the way in which she surrendered the keys of the property and vanished from the scene. There is also evidence that Caesars came to an end.

If all this is taken into account the situation is not only that the plaintiffs have not proved an oral agreement, but that the probabilities are that no such agreement came into being. The evidence of Mr van Rensburg takes the matter no further because he was not aware of any oral agreement. The fact that he could extract a written undertaking from the defendant does not in itself prove that that there was an underlying liability. It can never prove that the defendant met with Mrs Harmse and concluded an agreement with her. The defendant has given an explanation of why he signed the acknowledgment of debt. Mr van Rensburg could not deny defendant’s evidence that he insisted on the acknowledgment being signed before releasing the keys. I accept the evidence of the defendant to that effect. Even if the pressure exerted by Mr van Rensburg may not qualify as duress (see Medscheme Holdings (Pty) Ltd and Another v Bhamjee 2005(5) SA 339 SCA at 346A-D) the fact is that the defendant has furnished an acceptable explanation for having signed the acknowledgment of debt. The defendant was, as the magistrate charitably put it, an uncomplicated person. He was overawed and wanted to take occupation of his house without being dragged to court. In the circumstances I accept that his signature on the acknowledgment of debt did not betoken an admission that he and Mrs Harmse had concluded an oral agreement as alleged.

There is another reason why I am of the view that the plaintiffs cannot recover the lost occupational interest which, in essence, they claim. The deed of sale did not specify the date of occupation. The reason appears from the deed of sale itself. The property was subject to an existing lease. If the words “soos ooreengekom” meant that there was an existing oral agreement in respect of the date of occupation, it would make no sense, because then it should have been possible to enter the date in the appropriate space. In any event such an agreement would have been invalid, because in clause 12 it is stated that the deed of sale constituted the entire agreement between the parties. It makes more sense to interpret the words”soos ooreengekom” in clause 7.1 to mean “soos ooreengekom te word”. That would make sense in view of the fact that the existing tenant had not yet received notice and had not yet vacated the property or indicated that he would vacate it. That is also an interpretation that would, in the circumstances render validity to the clause. Whatever the position, as the deed of sale stood, it contained no date of occupation, and any attempt to rely on an extraneous oral agreement to fix the date of occupation offends the parol evidence rule and the non-variation clause, not to mention the Alienation of Land Act, 1984. Therefore, even if there was an oral agreement as alleged, the plaintiffs would not be entitled to rely on it.

For all these reasons I am of the view that the magistrate should have dismissed the plaintiffs’ claim.

The first two components of the defendant’s counterclaim were not in dispute. The plaintiffs in fact deducted those amounts from their claim. The defendant is not pursuing the counterclaim for occupational interest after the date of transfer. In view of the fact that there was no agreement on the date of occupation, there cannot be such a claim.

In the result the following order is made:

1. The appeal succeeds with costs.

2. The order made by the magistrate is set aside and the following order is substituted for it :

2.1 “The plaintiffs’ claim is dismissed with costs.

2.2 Judgment is given in favour of the defendant on his counterclaim in an amount of R 3 477.73 with costs.”

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C BOTHA

JUDGE OF THE HIGH COURT

I agree

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JNM POSWA

JUDGE OF THE HIGH COURT

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