CASE NO
‘Not
Reportable’
CASE NO.: I 634/2011
IN THE HIGH COURT OF
NAMIBIA
In the matter between:
STEFAN LOFTIE-EATON
t/a SLE PROPERTIES
…..........................................Plaintiff
and
ANDREW FORDRED N.O
…..................................................................First
Defendant
MASTER OF THE HIGH
COURT OF NAMIBIA …............................Second
Defendant
CORAM:
PARKER J
Heard on: 2012 May 28 –
30
Delivered on: 2012 June
20
_________________________________________________________________
JUDGMENT
_________________________________________________________________
PARKER J:
[1] This is a claim by the plaintiff, who carries on business as
estate agent, for payment of commission alleged to be due and payable
by the first defendant (hereinafter referred to simply as the
‘defendant’ because no relief is sought against the
second defendant) by reason of the sale of immovable property at No.
29 Eadie Street, Windhoek (‘the property’) which forms a
part of the deceased estate of the late Joan Agnes Fordred. Summons
was issued against the defendant in his capacity as the executor of
the said deceased estate. Ms Schneider represents the plaintiff and
the defendant appears in person.
[2] The plaintiff alleges
that by an oral mandate the defendant in February 2010 gave authority
to the plaintiff to find a buyer for the property. The oral mandate
was given by the defendant in his capacity as executor of the
deceased estate, as aforesaid, because the property was registered in
the name of the deceased. It is indisputable that in the same
February an estate agent working for the plaintiff, Simone Konings,
acting as the duly authorized agent of the plaintiff, introduced one
Jose de Azevedo Nogueira and his wife Tanya to the property. In this
regard I find that Simone did introduce the property to Tanya first
because Antonio, by the nature of the business he carried out (retail
business), left such matters in the competent hands of his dear wife
Tanya.
[3]
Thus, what is important in this proceeding is that the defendant does
not deny that it was Simone who introduced the eventual buyer of the
property, Antonio, to the property; and, significantly, the defendant
who appears per se
in this matter calls it –
unwittingly, perhaps – ‘initial introduction’ in
his closing submission. I note, with respect, that the epithet
‘initial’ adds no weight in this proceeding as will
become apparent shortly. What is weighty is that it is the selfsame
Antonio who became the eventual buyer of the selfsame property; and
this fact is critical and crucial in this proceeding. Be that as it
may, according to the defendant, ‘the plaintiff lost the effect
of his initial introduction’. And why does the defendant so
contend? The defendant says that the plaintiff’s mandate was
terminated for a reason and that is, the plaintiff and his agent or
the plaintiff’s agent ‘were simply not performing,
especially an agent of Konings’ (i.e. Simone’s)
experience thus there was an expectation that the customer receives
reliable service who is the seller who in this case was the first
defendant.’ (Quoted verbatim)
[4] As I have said
previously, by his own admission, the defendant states that it was
Simone who introduced the property to the eventual buyer. But,
according to the defendant, as I have said previously, ‘the
plaintiff lost the initial effect of his initial introduction’.
I proceed to consider against the backdrop of the law this averment,
certain indisputable facts and the common cause fact that the
property was sold to the selfsame buyer Antonio by a second estate
agent Senior.
[5] If an agent, e.g. an
estate agent, in order to find a buyer introduces a party with whom
the transaction desired by the principal goes through, it is a
question of fact whether or not the introduction constituted the
‘efficient cause’ of the completion of the transaction.
If it did, it makes no difference that the transaction was in fact
completed direct between the principal and third party; or that it
was completed after the agent’s employment or mandate had
terminated. And, furthermore, the onus lies throughout on the agent
to prove that he was the effective cause of the sale; and where
another agent or more other agents have taken part in the
negotiations, the onus is still on the plaintiff to prove that his or
her efforts operated right up to the completion of the transaction
and that those efforts were, despite the activities of the other
agent or agents, its effective cause. (Silke, The
Law of Agency in South Africa,
3rd
edn: pp 395-6, and the
cases there cited) And it has also been said also that at the very
least, the word ‘introduce’ in this regard means ‘to
direct the attention of a person who hitherto has not applied his or
her mind in that direction to the fact that a property is for sale or
to a material element of the sale not previously appreciated by him
or her. (D.C.
Wylde & Co v Sparg. 1972
(2) SA 75) Thus, an estate agent who has introduced the ultimate
purchaser of a house who claims commission must prove that the
effects of his or her introduction continued right up to the moment
of purchase and that they were the cause of the sale going through,
keeping in mind that it really matters not if, as is in the present
case, the transaction was completed after the estate agent’s
mandate had terminated. And it has been stated that once the estate
agent has proved that the person with whom the principal (in the
instate case, the defendant) has ultimately contracted was the person
introduced by the agent the estate agent (in the instant case,
Antonio), the estate agent has raised a prima facie case and it is
for the principal (i.e. the defendant) to produce sufficient evidence
to counter this. (Silke, The
Law of Agency in South Africa,
ibid.: p 397 and the cases there cited)
[6] As I have found
previously, it is not disputed that it was Simone who introduced the
ultimate purchaser to the property. She did not merely call Tanya to
tell her that the property is for sale. I accept the evidence that
Simone introduced Tanya to the property after arranging a viewing of
the property with the defendant and that Tanya asked for a second
viewing of the property to enable husband Antonio to also view the
property; whereupon Simone arranged a second viewing of the property
with Tanya and Antonio and a friend Ilona Erasmus. And during this
second viewing Simone introduced them to the defendant. It was she
Simone who took them through the property and showed them the
physical details of the property. Thereafter, Simone arranged a third
viewing of the property at which Tanya brought along her builder
(referred to as ‘engineer’ by Simone, but Tanya testified
that the person is her ‘builder’). For all this it is
absolutely of no moment whether the defendant called the plaintiff’s
offices and Simone showed up in response thereto and the defendant
gave Simone the mandate, as Simone testified, or Simone, upon her own
volition, showed up at the property and the defendant gave her the
mandate (as the defendant testified). It is also absolutely
inconsequential as to the submission by the defendant and testimonies
of Tanya and Antonio that Antonio and Tanya lived directly opposite
the property, and that from their residence Antonio ‘could look
into the yard of number 29’. Tanya and Antonio ‘lived
directly opposite the property’ and ‘Antonio could look
into the yard of number 29’; and yet the newspaper adverts by
the defendant did not elicit any response from Tanya and Antonio;
none at all, until Simone (the plaintiff) came on the scene and
introduced Tanya and Antonio to the property. That being the case I
find that it was Simone who introduced Tanya and Antonio to the
property in the sense that it was Simone who directed the attention
of Tanya and Antonio who hitherto had not applied their minds in that
direction to the fact that a property is for sale and also details of
the physical layout of the property not previously appreciated by
Tanya and Antonio (See D.C.
Wylde & Co v Sparg. 1972
(2) SA 75; and also Wakefields
Real Estate v Gavin Wayne Attree and
Others (666/10)
[2011] ZASCA 160 (28 September 2011).) It follows that, in my view,
the defendant’s averment and submission that Tanya and Antonio
‘lived directly opposite the property’ and ‘Antonio
could look into the yard of number 29’ tends to weaken, rather
than advance, the case of the defendant.
[7] It is not in dispute
that there was a cancellation of the contract of sale by Antonio
because the asking price for the property communicated to her by
Simone was higher than what his bankers were prepared to lend to him
via a bond. Thereafter, the defendant and the second estate agent
Senior completed the transaction in the absence and without the
knowledge of Simone who originally introduced Antonio and Tanya, as I
have already found. Accordingly, I find that Simone was the effective
cause of the transaction and in so finding I have taken into account
this important factor, namely, the degree of effort made by Simone
which I have set out previously, to which must be added Simone’s
preparing the contracts, the last of which was concluded between
Antonio and the defendant but which was cancelled. What is
significant is that after Simone had found a buyer in the person of
Antonio, a deed of sale (the Senior contract) was eventually entered
into. As I have reasoned previously, it matters not if the eventual
completion of the sale took place after Simone’s mandate had
terminated. It must be remembered Antonio testified that he never met
Senior throughout the transaction. I am satisfied that the plaintiff
has proved that Antonio with whom the defendant ultimately contracted
was the person introduced by Simone and so the plaintiff raised more
than a prima facie case; she raised an incontrovertible and strong
case, upon the authorities, and the defendant failed to produce
sufficient evidence to counter this.
[8] Furthermore,
initially Antonio could not, on the amount of money his bankers were
then prepared to lend him, buy the property and so he cancelled on
the basis that he had to raise the difference from another source.
For this reason, in his submission, the defendant asks rhetorically,
‘Does the plaintiff honestly want this court to believe that
every time a purchaser merely phones up and say the bank evaluation
is lower than the asking price they (i.e. the plaintiff) accept it on
such face value and allow the purchaser to walk away from the
agreement?’ The defendant asks rhetorically further, ‘Does
the plaintiff merely rest back in these situations and does nothing
to facilitate alternative financing or pricing for purchasers?’
These questions add no weight. In considering them, I cannot do any
better than to adopt that which Marais J said in Aida
Real Estate Ltd v Lipschitz 1971
(3) SA 871 (W) at 875E-H in such insightful words:
‘As
regards the financial difficulties, it must be pointed out that
almost every transaction brought about by an estate agent is preceded
by protracted negotiations of a financial nature – namely, as
regards the amount of the price as well as to the method and time of
payment. Often success is only achieved through the intervention of
third parties, and quite often the agent himself is not a participant
in these negotiations. It
would, however, be a mistake to say the occurrence of these financial
obstacles and their removal without the assistance of the agent
necessarily go to show that the agent’s introduction was not
effective in bringing about the ultimate sale.
Obstacles
in the way of the sale and the fact that one or other or both of the
parties by independent effort overcome them may indeed support the
very opposite view. It may be the measure of the wisdom and business
acumen of the agent in introducing to each other a seller who is so
keen to sell and/or a purchaser who is so keen to buy that even
formidable obstacles in the way of a sale were overcome; or, to put
it more crudely, the willingness and ability of the purchaser
introduced by the agent were so great that nothing could prevent the
sale taking place. In such a case the agent would be entitled to
remuneration, no matter whether he selected the potential purchaser
by chance or by foresight. A commission agent is paid by results and
not by good intentions or even hard work.’
[9]
For all the aforegoing reasoning and conclusions I have no difficulty
in holding that the plaintiff’s introduction of Antonio and
Tanya was the effective cause of the sale which subsequently took
place and so the plaintiff is entitled to its commission (Key
Properties (Pty) Ltd v Lamprecht and Another 1996
NR 197 (HC)). Thus, there was indubitably established a causal
relationship between the introduction of the purchaser and the
ultimate transaction of the sale, and that is sufficient to found the
plaintiff’s legal claim for commission. (See Toulmin
v Miller, 58 L.T.R. 96.)
And it behoves me to add that the second estate agent Senior did
enter the transaction; it matters tuppence how Senior entered the
transaction (as Tanya testified as to how Senior did). What is
significant, in my view, is that Senior did come into the scene after
Simone had done all the donkey work, to use a pedestrian language,
just to pick up the fruits that have dropped on the ground, through
Simone’s effective work; that is to say, Simone had already
done the most effective part of the work, which I have described
previously (see Burchell v
Gowrie & Blockhouse Collieries Ltd (1910,
A.C. 614 at 625, cited with approval in Webranchek
v L K Jacobs & Co Ltd (1948)
(4) SA 671 (AD)). I conclude, therefore, that Simone’s efforts
override by a very large margin Senior’s efforts.
[10] In my view it is
clear from the evidence that Simone (for the plaintiff) did all that
according to the authorities justifies the plaintiff’s claim
for the commission set out in the pleadings. Besides, for the
reasoning and conclusions I have set out previously, I accept Ms
Schneider’s submission that the defendant did not discharge the
burden of proving his unliquidated counterclaim for damages and so
his claim in reconvention fails.
[11] It follows that the
plaintiff’s claim succeeds and it must have its costs, and the
defendant’s counterclaim fails. In the result, I make the
following orders:
Judgement for the
plaintiff in the amount of N$120,000.00, plus interest thereon at
the rate of 20% per annum calculated from 6 February 2010 to date of
payment.
The first defendant must
pay the plaintiff its costs on the scale as between party and party,
and such costs shall include costs occasioned by the employment of
one instructing counsel and one instructed counsel.
The first defendant’s
counterclaim is dismissed, and there is no order as to costs in that
behalf.
________________
PARKER J
COUNSEL
ON BEHALF OF THE APPLICANT: Adv
H Schneider
Instructed
by: Francois Erasmus &
Partners
ON
BEHALF OF THE FIRST RESPONDENT: Mr
A Fordred
In person
Stefan Loftie-Eaton t/a SLE Properties v Fordred NO and Another (I 634/2011) [2012] NAHC 151 (20 June 2012);