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FAURE AND ANOTHER v JOUBERT AND ANOTHER NO

 

(APPELLATE DIVISION)

 

1979 May 17; August 24 RUMPFF CJ, JANSEN JA, KOTZE JA, JOUBERT JA and VILJOEN AJA

 

Sale-Of land-The contract-Construction of-Land sold by public auction-Provision in conditions of sale that "by bidding, the purchaser states that he is acquainted with all the facts concerning the property and that no guarantees ... representations implied or express were given or made which led to his purchasing thereof and the auctioneer can accordingly in no manner whatever be held responsible" -Misrepresentation by sellers before the auction in regard to number of vines on the land-No intention to release sellers from their common law obligations-Only the auctioneer released from liability by that provision-Expressio unius est exclusio alterius rule applied-Contra proferentem rule can also be applied.

 

Appellants had purchased a certain farm from the respondents at a public auction and had paid the deposit fixed by the .conditions of sale. Clause 8 of the conditions of sale provided that: ''By bidding, the purchaser states that he is acquainted with all the facts concerning the property and that no guarantees, undertakings or representations implied or express in respect of the property were given or made which led to his purchasing thereof and the auctioneer can accordingly in no manner whatever be held responsible''. In clause 6 of the conditions of sale the seller was expressly released from certain obligations and, in clause 7, the seller and the auctioneer were released from obligations. In advertising the sale by auction of the farm the representation was made that there was a certain number of vines thereon. In an action by respondents for payment of the balance of the purchase price appellants averred in a counterclaim that the representation in regard to the number of vines was false and they claimed a reduction of the purchase price. In an alternative counterclaim appellants also claimed a reduction of the purchase price and averred that they were entitled thereto even though the respondents had not deliberately made the misrepresentation. The alternative counterclaim was based on dicta et promissa which were not true. An exception to the alternative counterclaim on the ground that appellants, by virtue of clause 8 of the conditions of sale, could not rely on the misrepresentation was upheld by a Provincial Division. In an appeal,

 

Held (JOUBERT JA dissenting), that, although it could be argued that in clause 8 a general statement was made by the purchaser, whereby the seller was released (from liability) in respect of misrepresentations, in the present case, when the contract was read as a whole, it could not reasonably be said that both parties had the intention of releasing the sellers from their common law obligations: although a statement in general had been made, it was, expressly, the auctioneer alone who had been released from liability.

 

Held, further, that the generality of the statement in clause 8 was limited by the final sentence of the clause and reliance could, if necessary, be placed on the expressio unius est exclusio alterius rule: although this rule, even in contracts, had to be considered with the greatest circumspection, the application of the rule did not appear to be unreasonable when clauses 6, 7 and 8 were read together where the three parties were expressly mentioned which strongly emphasised the individual liability of each of the parties, especially when regard was had to the words ''the auctioneer can accordingly'' appearing in clause 8.

 

Held, further, in any event, that there were at least two meanings which could reasonably be given to the contract and that the present case was pre-eminently one wherein the contra proferentem rule ought to be applied in favour of the appellant. Appeal upheld.

 

The decision in the Cape Provincial Division in Joubert en 'n Ander NO v Faure en 'n Ander reversed.

 

Appeal against a decision in the Cape Provincial Division (BROEKSMA J). The nature of the pleadings appears from the judgment of RUMPFF CJ.

 

W G Burger SC (with him J van der Berg) for the appellants: The only question for decision is whether clause 8 of the conditions of sale of Boland Bank (the auctioneer) also protect the sellers themselves against the consequences of an innocent misrepresentation or a dictum et promissum. Upon a normal grammatical construction of clause 8 it unambiguously indicates for whose protection it was inserted, namely the auctioneer. This is the conclusion at which any reasonable reader or listener will arrive. Glyphis v Tuckers Land Holdings Ltd 1978 (1) SA at 536H-537D. If attention is paid to the context in which clause 8 appears, it is significant that the drafter of the conditions of sale experienced no difficulty to write in references to the seller or to the seller and/or the auctioneer when he deemed this necessary, such as in clauses 6 and 7. A further consideration which indicates that clause 8 was inserted for the auctioneer's protection only, is the words "by bidding". They strengthen the impression that only the relationship between the auctioneer and the bidders is relevant here. The drafter was apparently more mindful of things which the auctioneer might say before or during the auction and for which he may later be held liable.

 

In the alternative it is at least reasonably possible to give the construction which favours them to clause 8 and this is in the circumstances of the case then also the construction which the honourable Court ought to give thereto. The conditions of sale concerned are not the result of reciprocal negotiations, but a contract which was drawn up unilaterally (by the auctioneer) and offered to the public without any negotiations. Consequently in the construction of such conditions of sale there is no room, or practically no room for evidence as to surrounding circumstances which might be helpful. The sale conditions ought therefore to be construed such as eg, an insurance policy would be construed, rather than, eg, a contract of sale between two individuals. In other words lacking admissible extrinsic evidence, the caveat issued in the Cairns case infra against the over-hasty use of the contra proferentem rule is not applicable in this case. See Cairns (Pty) Ltd v Playdon & Co Ltd 1948 (3) SA at 123. In the case of insurance policies the Courts do not hesitate to apply the contra proferentem rule in the case of uncertainty or ambiguity. See Kliptown Clothing Industries (Pty) Ltd v Marine & Trade Insurance Co of SA Ltd 1961 (1) SA at 106H-107F. For a recent application of the contra proferentum rule see: SAR & H v Cemafrique (Pty) Ltd 1978 (3) SA at 403G-H. For an earlier application of the rule, see Cohen v Rapido/ Ltd 1934 AD at 144, 146, 147-8. For the application of the rule in the case of a bank's printed form of deed of suretyship, see Kalil v Standard Bank of South Africa Ltd 1967 (4) SA at 556E-G.

 

W G Thring for the respondents: "………."

 

Burger SC in reply.

 

Cur adv vult.

 

Postea (August 24).

 

RUMPFF CJ: In this case the plaintiffs noted an exception in the Cape Provincial Division against an alternative counter-claim which the defendants instituted in answer to a claim of the plaintiffs. The exception was upheld with costs and the defendants are at present in this Court as appellants. From the pleadings it appears that the parties and Boland Bank signed a written contract. This contract reads as follows:

 

"Boland Bank Ltd

Conditions of sale by public auction

At which Boland Bank Ltd in their/its capacity as auctioneers for and on behalf of the estate of the late Willem Daniel Briers-Louw (born 17 February 1935) sold the following property: As per annexure

 

1.         The purchaser shall be the highest accepted bidder, but should any dispute arise between two or more bidders the auctioneer in his whole discretion may either offer the property again for sale or determine who the purchaser is in which case his decision shall be final. Should the auctioneer make a mistake, it shall be immediately remedied and not binding. The acceptance of a bid rests in the entire discretion of the auctioneer.

 

2.         The purchase price shall be paid by way of a deposit of 10 per cent thereof to the auctioneers against signature of these conditions of sale, which amount shall be kept in trust pending registration of transfer. For payment of the balance of the purchase price against registration of transfer and all other amounts owing in terms thereof, the purchaser shall furnish a bank or other approved guarantee.

 

3.         The purchaser shall on request pay:

 

(a)       all transfer fees including transfer duties and all costs and fees in order to have transfer registered in his name;

 

(b)       the costs in order to determine or to place the beacons of the property;

 

(c)        the survey costs if a subdivision, re-survey or consolidation be necessary;

 

(d)       the auctioneer's commission calculated at the rate of 5 per cent on the purchase price;

 

(e)       the amount of R15 being the costs of these conditions of sale.

 

4.         Transfer shall be registered by the seller's attorneys as soon as possible after compliance by the purchaser with his obligations in terms hereof.

 

5.         Possession of the dwelling house shall be given on 1 September 1976.

 

Possession of the property shall be given upon confirmation of sale, from which date the purchaser shall be responsible for:

 

(a)       interest at 10 per cent per annum until date of registration of transfer calculated on the balance of the purchase price; and

 

(b)       all taxes, other levies and insurance premiums in connection with the property

 

which amounts are payable on the date of registration of transfer. From the date of possession all risks connected to the property shall pass to the purchaser. Occupation is given subject to existing leases, if any.

 

6.         The seller sells the property according to the presently existing chart and transport thereof and subject to such conditions and servitudes as may bear reference to the property according to other transfers, previous documents or agreements. The seller is not responsible for any deficiency which might be found upon resurvey of the property and he also hereby waives in favour of the purchaser any surplus which might be found upon such resurvey.

 

7.         The property is sold voetstoots together with all buildings or improvements thereon (if any) and the seller and/or the auctioneer shall not be responsible for any defects whether patent or latent.

 

8.         By bidding, the purchaser states that he is acquainted with all the facts concerning the property and that no guarantees, undertakings or representations implied or expressed in respect of the property were given or made which led to his purchasing thereof and the auctioneer can accordingly in no manner whatsoever be held responsible.

 

9.         The sale is subject to the approval of the Master of the Supreme Court and the executors and until such approval is refused the purchaser remains bound to these conditions of sale.

 

10.       Should the purchaser fail to comply with any of these conditions, the seller shall have a right to:

 

(a)       again offer the property for sale by means of a public auction in which case the purchaser shall be liable for payment of all costs and commission determined herein as well as the difference in the purchase price then paid and the purchase price contained herein if such purchase price is less than provided herein and the costs of the advertisement as well as the re­ advertising of the property for sale;

 

(b)       or to cancel the sale in which case all amounts already paid by the purchaser in terms of this agreement shall fall due to the seller as predetermined damages as agreed to, which amount the auctioneers may pay over to the seller after deduction of their commission.

 

11.       If the purchaser acts as trustee or agent for a company already registered or still to be registered, he remains personally liable until the company has ratified the contract of sale and the purchase price has been fully paid and should the company for any reason whatsoever not take transfer, transfer shall be registered in the name of the purchaser personally.

 

After the above-mentioned conditions were read out in public, the above­mentioned property was offered per public auction and by means of public bidding at Ruitersvlei on this the 14^th day of July 1976.

 

Sold to: Johannes Albertus Faure and Jacobus Christiaan Faure, as trustees for a company still to be registered,

for R205 000.

As witnesses:

 

1.         (Sgnd)?

2.         (Sgnd)?

 

(Sgnd) J C Faure

(Sgnd) J A Faure

Purchaser

(Sgnd)?

Auctioneer

 

And confirmed by me on this the 14^th day of July 1976.

 

As witnesses:

1.         (Sgnd)?

2.         (Sgnd)?

 

(Sgnd) A P Joubert

(Sgnd) R S Briers-Louw

Purchaser

Executors Dative.''

 

It is unnecessary for the purpose of this judgment to reproduce the contents of the annexure. It refers to certain portions of a farm, Ruite Valley, held according to deed of transfer 19310/1959. In their particulars of claim the plaintiffs allege that the defendants only paid a deposit of R20 000 in respect of the purchase price and refused to pay the balance. They tender transfer against payment of the balance of the purchase price, interest and certain other amounts. In their plea the defendants refer to a counter-claim and in the counter-claim they aver inter alia the following:

 

"Before conclusion of the stated agreement and upon advertising the said property the plaintiffs under the heading 'improvements' made the following written representations in respect of the numbers of vines on the said property;

 

50 000 French grapes;

25 000 Green grapes (white);

7 000 Stein/Chenin Blanc;

5 000 Hanepoot (white);

173 000 Hermitage (red)."

 

It was further alleged that the plaintiffs were aware of the fact that only 158 495 vines were on the property sold and that the representations were consequently false and untrue. It was also alleged that the representations were made upon advertising the auction of 30 January 1976 and was confirmed by the auctioneer on the day of the auction. It was also alleged that the deficiency of 101 705 reduced the value of the property with R45 000, or, in the alternative, it was alleged that the defendants had suffered damage in the amount of R45 000.

 

Apart from the actual wording of the alternative counter-claim, it is common cause that the alternative claim claimed reduction of the purchase price owing to an averment that the defendants were entitled to such a reduction, although the plaintiffs had not knowingly made these representations, in other words the counter-claim was based on dicta et promissa which were not true. Exception was raised against this alternative claim which reads as follows:

 

"(d) In clause 8 of the said conditions of sale, annexure 'B' to the plaintiffs' particulars of claim, the defendants state that no guarantees, undertakings or representations implied or expressed in respect of the property were given or made which led to the purchasing thereof.

 

(e) In the light of the aforementioned, the defendants are not entitled to rely in their alternative counterclaim on the said misrepresentations, or to base the alternative counter-claim thereupon."

 

In his judgment the Court a quo considered the argument of counsel and inter alia stated as follows:

 

"As I understood them they were also agreed that, if I should find that the clause was ambiguous in the sense that the ambiguity can only be and must be cleared up by evidence of surrounding circumstances the point at issue cannot be decided on exception, but must be referred for trial. (See Delmas Milling Co Ltd v Du Plessis 1955 (3) SA 447 (A) at 455.)"

 

In this Court it was not contended that upon a finding of ambiguity the exception cannot succeed and that the case must be referred for trial. In this Court counsel for both parties relied on the wording of the contract, and on behalf of the defendants it was also contended that in the present case the contra proferentem rule can in fact be relied on, see Cairns (Ply) Ltd v Playdon & Co Ltd 1948 (3) SA 99 (A) at 123. After consideration of the arguments of the counsel, the Court a quo held that the generalness of the statements in clause 8 which preceded the conclusion:

 

"and the auctioneer can accordingly in no manner whatsoever be held responsible"

 

was so clearly stated that it must be accepted: "that the sellers thought that they were protected thereby". The Court a quo further held:

 

"It can also be readily accepted that a seller who read or heard the conditions of sale will have objected had the factual assumptions held therein not been true in respect of it."

 

Although it may in fact be argued that in clause 8 a general statement is made by the purchaser whereby the seller is freed in respect of misrepresentations, I still think that in the present case, when the contract is read in its entirety, it cannot reasonably be said that both parties had had the intention that the sellers relieved themselves of their common law obligations. I mention the contract in its entirety because in the first place, grammatically and literally, clause 8 does not bear reference to the sellers but only to the auctioneer. In essence the plaintiffs' case is that the defendants in clause 8 stated in general that no representations were made which led to the purchasing thereof, and that from this the inference must be drawn that the plaintiff was relieved of liability. If such a general statement was made without the specific conclusion which was attributed thereto, there would naturally be no problem, because then it would have been a statement towards the seller. The problem arises because, although a statement took place in general, in the present case it expressly released only the auctioneer from liability. On behalf of the plaintiffs it was argued, inter alia, that the defendants, as purchasers, in clause 8 made the statement which they made to the plaintiffs, the sellers. It was also contended that at law an auctioneer is not personally liable, owing to innocent misrepresentations, towards the purchaser and that the closing words of clause 8 were inserted ex abundante cautela or owing to ignorance as to what the position at law was. I cannot agree with this.

 

In the present case there are three parties, the sellers, their agent and the purchasers. It is common cause that the contract is a printed form which is used by the auctioneer and filled in by him. From the contract itself it appears that the agent played an important role in the whole transaction. He first reads the conditions of the contemplated contract to the public present at the auction and thereafter the contract is signed. In the first clause already it must be clear to a prospective purchaser that the auctioneer, also as far as he is concerned, is a person who in some respects plays an important role. Clause 2 refers to the deposit which is paid to the auctioneer and clause 3 provides what commission must be paid by the purchaser to the auctioneer. In clause 6 the seller is expressly released from certain obligations, after that, in clause 7 the seller and the auctioneer are expressly released from obligations and then, after that, the auctioneer alone is then expressly released from obligations in clause 8. In the contract itself I find no provisions which rebut the impression which is created by clause 8, viz that only the auctioneer is expressly mentioned and that only he is relieved from obligations. The other provisions of the contract confirm, in my view, the inference that, as regards the purchaser, he reasonably accepted that the section concerned the auctioneer and concerned possible guarantees or representations which were made by the auctioneer himself or somebody else, and that, as far as the auctioneer is concerned, he could "in no manner whatsoever be held responsible". The normal purchaser, in my opinion, after hearing or reading clause 8 would not have asked himself what the precise legal position of the auctioneer was. He hears and sees that by bidding he declares that no representations were made which led to the conclusion of the contract and that the auctioneer can "accordingly" in no manner whatsoever be held responsible. This will naturally create the impression, especially in the case of the purchaser, that reference is only made to the auctioneer, if the auctioneer himself has made any representations regarding the farm before the auction. And the word "accordingly" in the context of the clause is a catchword which emphasizes the auctioneer. In my opinion the argument on behalf of the plaintiffs cannot be accepted and the generalness of the statement in clause 8 is limited by the final sentence of the clause. In my opinion, if necessary, in this case reliance can be placed on the maxim expressio unius est exclusio alterius which may be applied in suitable cases in the construction of an Act, especially where other provisions in the Act do not rebut the maxim. I am aware thereof that this maxim, also in the case of contracts, must be considered with the greatest circumspection, cf Wessels Law of Contract in SA vol 1 para 1954, but, when clauses 6, 7 and 8 are read together, the fact that the three parties are expressly mentioned, must strongly emphasize the individual liability of each of the parties, and then the application of this rule would not appear to be unreasonable especially when regard is had to the words "the auctioneer can accordingly" appearing in clause 8.

 

If my interpretation is incorrect, it is still my conviction that clause 8 was drafted in such a manner that it constituted a trap and that, even applying the accepted means of interpretation, it is impossible to determine what the intention of the parties was. The contract was completed on a printed form of a contract which is used by the auctioneer as agent for the sellers. The agent prefers not to expressly provide in clause 8 that the sellers will not be responsible. He only refers to the auctioneer and therefore leaves one in doubt as to the true intention. The sellers failed in stating expressly, through their agent, that they would also not wish to be held liable. There are therefore, in my opinion, in the alternative, at least two meanings which can reasonably be given to the contract and then the present case, in my opinion, is pre-eminently a case where in the contra proferentem rule ought to be applied. In this regard I need merely to refer to the judgment of DAVIS AJA in Cairns (Pty) Ltd v Playdon & Co Ltd (supra at 121 et seq) where reference is made to our common law and various authors, and where also, in respect of a contract of sale, the following passage is cited with approval from an English decision at 123:

"………."

 

I am aware thereof that this method of construction ought only to be applied after an attempt has been made to determine the true meaning of the contract, but as I said supra, if my interpretation does not reflect the true meaning of the contract, it is in my opinion, at least just as reasonable an interpretation as the plaintiffs wished to give to the contract.

 

In my opinion the appeal ought to be upheld with costs, including that of two counsel.

 

JANSEN JA, KOTZE JA and VILJOEN AJA concurred.

 

JOUBERT JA: I have had the privilege of reading the judgment of the CHIEF JUSTICE but unfortunately I cannot associate myself with the interpretation which he attached to clause 8 of the written contract. Seeing that this is a minority judgment in which I reached the opposite conclusion, I state my reasons therefor as concisely as possible.

 

The relevant facts, including the written contract, are set out in the judgment of the CHIEF JUSTICE in detail and therefore I need not repeat them. It appears from the written contract that it was a trilateral agreement with three parties, to wit, the sellers (respondents), their agents Boland Bank as auctioneer and the purchasers (appellants). This written contract is in a printed form and it was completed and signed by the parties thereto. It appears from the written contract that it was originally read out in its uncompleted form at the commencement of the auction to make known the terms according to which the auction and the sale would take place to prospective bidders and purchasers. This also explains why the first three words with which clause 8 commences referred to the bidding, namely "by bidding". For convenience' sake I cite clause 8 in its entirety because the interpretation thereof is at issue. It reads as follows:

 

"8. By bidding, the purchaser states that he is acquainted with all the facts concerning the property and that no guarantees, undertakings or representations implied or expressed in respect of the property were given or made which led to his purchasing thereof and the auctioneer can accordingly in no manner whatsoever be held responsible.''

 

I am thoroughly aware of the fact that upon the construction of clause 8 it must not be read in isolation, but it must be read in the context of the written contract as a whole. Clause 1 bears reference to the auction. It explains that the highest accepted bidder shall be the purchaser and that the auctioneer has a complete discretion in the acceptance of a bid. It explains also how the auctioneer may act when a dispute between two or more bidders arises. Clause 2 provides that upon signature of the written contract the purchaser must pay a deposit consisting of 10 per cent of the purchase price to the auctioneer.to be held by him in trust pending the registration of transfer when the balance of the purchase price is payable. Clause 3 mentions certain items which must be paid by the purchaser, such as inter alia transfer fees, the auctioneer's commission calculated at 5 per cent on the purchase price and R15 in respect of the costs of documents in which the written contract is embodied. Clause 4 provides that the seller's attorneys shall register transfer of the property sold, while clause 5 deals with granting of possession of the property sold to the purchaser on 1 September 1976 as well as the passing of all risks in connection with the property sold to the purchaser. According to clause 6 the property sold is sold according to its existing chart and deed of transfer as regards the size and registered servitudes and conditions. In terms of clause 7 the property sold is sold voetstoots together with all improvements thereon (if any) so that neither the seller nor the auctioneer shall be responsible for any defects, whether patent or latent in respect of the property sold. Clause 10 explains what rights the seller will have if the purchaser fails to comply with the conditions stated in the written contract. Clauses 9 and 11 are irrelevant. I find that upon reading the written contract as a whole the other clauses thereof cast no light on the interpretation of clause 8.

 

In my opinion the wording of clause 8 is clear and it entails a factual statement as well as an inference. It is necessary to pay attention to the factual statement and the inference.

 

The factual statement to which clause 8 refers, is confirmed by a bidder as soon as he commences to bid at the auction because he thereby states that

 

"he is acquainted with all the facts concerning the property and that no guarantees, undertakings or representations implied or expressed in respect of the property were given or made which led to his purchasing thereof''.

 

This factual statement refers to a bidder's statement which is very widely worded as appears from the use of the words: "all facts ... " and "no guarantees, undertaking or representations ... " The source of the bidder's facts is not specified or limited. It is irrelevant whether he himself or the seller or the auctioneer is the source or sources thereof. The objectively fixed factual statement is inter alia that the bidder is acquainted with all facts regarding the property. The bidder states and confirms this objectively fixed factual statement by making a bid at the auction. Similarly the bidder states and confirms, as soon as he bids at the auction "that no guarantees, undertakings or representations implied or expressed in respect of the property were given or made which led to his purchasing thereof''. Also here we have to do with an objectively fixed factual statement that there were no guarantees, undertakings or representations whatsoever given or made to him in respect of the property, whether implied, whether expressed, which led to his purchasing thereof. No person gave or made any such guarantees, undertakings or representations to him.

 

In other words neither the seller nor the auctioneer nor anybody else gave or made such guarantees, undertakings or representations to him. Objectively speaking there is an absence of such guarantees, undertakings or representations because they were never given or made to him. What is more, where the highest accepted bidder is the purchaser, we also find the position that the purchaser qua purchaser is contractually bound to the contents of clause 8 by the insertion of clause 8 in the written contract. That is why clause 8 then also mentions: "By bidding the purchaser states ..." The statement which the purchaser makes in clause 8 in respect of the factual statement mentioned, is therefore contractually binding upon him qua purchaser. Towards whom is the purchaser qua purchaser contractually bound with regard to the factual statement mentioned? It is in fact trite law that where an agent who has authority on behalf of his principal to conclude a contract with a third party, the contract comes into existence between the principal and the third party. The agent is as a rule not entitled to anything or liable towards the third party unless an agreement has otherwise been made. Vide the judgment of INNES CJ in Blower v Van Noorden 1909 TS 890, where he states this as follows at 899: "………."

 

The answer to the question which I put above, is therefore that the purchaser qua purchaser with regard to the factual statement in clause 8 contractually binds himself towards the seller unless it appears from the written contract itself that the purchaser only wished to bind himself in this respect against the auctioneer as agent. To determine this, it is necessary to pay attention to clause 8 as a whole, as well as to the contents of the written contract as a whole.

 

The inference of which mention is made in clause 8, is introduced by "and" as conjunction which is followed by a main sentence, namely: "and the auctioneer can accordingly in no manner whatsoever be held responsible''. I find nothing in this final sentence which indicates that the purchaser wished to bind himself towards the auctioneer as agent in respect of the factual statement in the aforementioned portion of clause 8. What this final sentence in fact does, is by way of inference to release the auctioneer contractually from liability as an agent towards the purchaser. This is however done ex abundante cautela because if the auctioneer as agent in fact gave or made guarantees, undertakings or representations implied or express in respect of the property sold which led to the purchaser purchasing it, then the purchaser could act against the seller ex contractu on the grounds thereof. Vide Wille and Mill in Mercantile Law of SA 16^th ed at 372.

 

I have already pointed out that the written contract is a tri-lateral agreement with three parties, namely the sellers (respondents), the auctioneer as their agent and the purchasers (appellants). As regards the position of the auctioneer as a party to the written contract, it appears that clause 1 forms part of his power, namely to accept the highest bidder as purchaser and also to grant a complete discretion to the auctioneer where a dispute arises between two or more bidders at an auction. Clause 2 burdens the auctioneer with the task of keeping the deposit on the purchase price in trust pending registration of transfer of the property sold. In terms of clause 3 (d) and (e) the auctioneer obtains the right to claim his commission and the costs of the written contract from the purchaser. In clause 7 the seller and/or the auctioneer are not held liable towards the purchaser owing to latent defects which the property sold might have. I however find no provision anywhere in the written contract in terms of which the purchaser wished to bind himself against the auctioneer as agent with regard to the stated factual statements in clause 8. In my opinion it is clear that the purchaser qua purchaser, with regard to the stated factual statement in clause 8, in fact wished to contractually bind himself towards the seller and that he in fact did so. Consequently the appellants as purchasers cannot make the challenged allegation in para 3 (b) of their counter-claim (against which the respondents in the Court a quo raised an exception) that the respondents as sellers had made an innocent misrepresentation with regard to the number of vines on the property sold shortly before the auctioning thereof to them.

 

In my opinion the appeal ought to be dismissed with costs.

 

Appellants' Attorneys: D P de Klerk & Van Gend, Cape Town; McIntyre & Van der Post, Bloemfontein. Respondents' Attorneys: Van der Spuy & Partners, Cape Town; Symington & De Kok, Bloemfontein.

 

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