In the high court of south africa (free state provincial division)



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IN THE HIGH COURT OF SOUTH AFRICA

(FREE STATE PROVINCIAL DIVISION)

 

 



      Case No. : 1386/2007

 

In the matter between:



 

OOSTHUYSEN BEATRIX                                                                                                                           First Applicant

OOSTHUYSEN YOLANDE                                                                                                             Second Applicant

 

versus

 

OOSTHUYSEN PETRUS JOHANNES                                                                               First Respondent

ROAD ACCIDENT FUND                                                                                                           Second Respondent

 

 



_____________________________________________________

CORAM: H.M. MUSI J

_____________________________________________________

HEARD ON: 30 AUGUST 2007

_____________________________________________________

DELIVERED ON: 13 SEPTEMBER 2007

_____________________________________________________

 

Summary: Application for transfer of action from one court to

another in terms of section 3 of the Interim

Rationalisation of Jurisdiction of High Courts Act, No.

41 of 2001 – respondent pleading the existence of a

contract prohibiting transfer – whether binding

agreement concluded and effect thereof on the

application.

 

_____________________________________________________



JUDGMENT

_____________________________________________________

H.M. MUSI, J

 

[1]         This is an application based on section 3 of the Interim Rationalisation of



 

Jurisdiction of High Courts Act, No. 41 of 2001, for transfer of the action

 

instituted by the applicants against the first respondent in this Court to the



 

Transvaal Provincial Division of the High Court. The background to the

 

matter is set out hereunder.



 

 

[2]         On 12 April 2002 the second applicant was a passenger in a motor vehicle



 

driven by the first respondent when the first respondent’s motor vehicle

 

became involved in a collision with another motor vehicle on the outskirts



 

of Bloemfontein. The second applicant sustained severe injuries in the

 

accident as a result of which she became a paraplegic. She and her



 

mother, the first applicant, who had apparently expended money on the

 

second applicant’s medical treatment, instituted action in the TPD against



 

the Road Accident Fund, the second respondent, for damages on the

 

basis of the alleged negligence of the driver of the motor vehicle that



 

collided with the first respondent’s motor vehicle and that of the driver of an

 

unidentified motor vehicle that allegedly caused the first respondent’s



 

motor vehicle to collide with the other motor vehicle. No negligence on the

 

part of the first respondent was averred and hence the first respondent



 

was not joined in that action.

 

 

[3]         Subsequently and apparently on advice of their attorneys, the applicants



 

instituted action in this Court against the first respondent for damages on

 

the basis that there had been negligence on the part of the first respondent



 

that causally contributed to the accident. The first respondent is defending

 

the action and has filed a plea, attributing the accident solely to the



 

negligence of the driver of the unidentified motor vehicle.

 

 

[4]         The applicants now seek to have the action instituted in this Court



 

transferred to the TPD to be consolidated with the action instituted there. I

 

shall henceforth refer to the first respondent simply as the respondent and



 

to the second respondent as the RAF.

 

 

[5]         A number of considerations have been given for the need to transfer and



 

consolidate the actions. It is contended inter alia that the convenience of

 

the parties demands that this be done, given that the applicants are



 

resident in Pretoria, the RAF has its principal place of business in Pretoria,

 

the attorneys of both the applicants and the RAF are all in Pretoria and that



 

the respondent is in fact represented by his insurer’s attorneys, who are

 

based in Johannesburg. It is also pointed out that there is a serious risk of



 

duplication where the same witnesses, who will testify in the TPD case,

 

may be required to again testify in this Court and that the costs would



 

escalate. In argument, counsel for the applicants cited authority on the

 

principles that would guide the court in considering this type of application.



 

See inter alia MPOTSHA v ROAD ACCIDENT FUND AND ANOTHER

 

2000 (4) SA 696 (C); NONGOVU NO v ROAD ACCIDENT FUND 2007 (1)



 

SA 59 (TPD).

 

 

[6]         In resisting the application the respondent denies that considerations of



 

convenience favour transfer of the action. He says that the nature of the

 

scene of the accident, which he has inspected, is such that the court



 

hearing the matter would need to conduct an inspection in loco and that,

 

coupled with the fact that he and the driver of the vehicle with which he



 

collided are all in Bloemfontein, militates against transfer. However, the

 

main ground upon which the respondent opposes the application is that



 

there is an agreement concluded by the applicants and himself through

 

their attorneys to the effect that the action in this Court would not be



 

proceeded with “until and unless the action against the second respondent

 

fails and that the action against the first respondent would be withdrawn



 

should the action against the second respondent succeed in its entirety”.

 

 

[7]         During argument I expressed the view that any attorney with experience in



 

third party litigation would know that you cannot risk excluding a party like

 

the respondent in an action based on the facts of this case and I wondered



 

why was the respondent not joined in the TPD case. The answer to this

 

question is to be found in the genesis of the agreement pleaded by the



 

respondent. In his answering affidavit the respondent produced a copy of a

 

letter written by the attorneys acting on behalf of the applicants to his



 

attorney, who deposed to the respondent’s answering affidavit. The

 

letter is dated 10 December 2004 and is marked annexure “EGL1”. It



 

explains why was the respondent not joined in the case against the RAF.

 

The reason therefor is that the applicants’ attorneys were confident that



 

they would prove that the accident was due to the negligence of the driver

 

of the unidentified motor vehicle in respect of which the second applicant’s



 

claim is unlimited. It is acknowledged in the letter that if it should turn out

 

that the accident was due to the negligence of the respondent, then the



 

RAF would be liable only for R25 000,00, in which event the balance of the

 

Claim would have to be recovered from the respondent personally and



 

particulars of his short term insurance were requested for the purpose. The

 

letter makes it clear that summons would be issued against the respondent



 

as a precautionary measure and that it will be served purely in order to

 

forestall prescription. The proposal is then mooted that as soon as the



 

notice of intention to defend is served, further steps in the action could be

 

kept in abeyance to await the outcome of the case in the TPD and that



 

should the latter case succeed on an unlimited claim basis, then the action

 

against the respondent would be withdrawn.



 

 

[8]         Subsequent to the letter of 10 December 2004 a formal proposal was



 

communicated to the respondent’s attorneys proposing that the matter in

 

this Court be kept in abeyance on the basis set out above. It is contained



 

in a letter dated 18 April 2005 addressed to the respondent’s attorneys by

 

the Bloemfontein correspondents of the attorneys for the applicants. It



 

appears in the papers as annexure “Y03”. The attorneys for the

 

respondent responded by letter dated 10 May 2005 which is marked



 

annexure “EGL2” in the following terms: “Ons verwys na bostaande en wens u

 

mee te deel dat dit ons instruksies is dat ingestem word tot die voorgestelde reëling.”



 

They thereby accepted the proposal.

 

 

[9]         In argument I posed the question whether, if these correspondences



 

evidence a binding agreement, this Court could ignore such agreement

 

and grant the application if it is of the view that the interests of justice



 

would be better served by consolidating the actions in the TPD. Counsel

 

for the applicants was candid that such course is not open to this Court.



 

That means that if it is found that there was such a binding agreement that

 

would be the end of the application. On the other hand, the applicants,



 

whilst agreeing that they made the relevant proposal, which would

 

constitute an offer, aver that they never received annexure “EGL2”, which



 

would constitute an acceptance. They, therefore, contend that no

 

agreement came into being. Even then they contend that even if an



 

agreement had been reached, it is not a binding agreement.

 

 

[10]     In my view, the balance of convenience favours transfer of the action



 

against the respondent to the TPD. The real issues to be determined are:

 

(a)  whether the offer contained in annexure “Y03” was accepted in the



 

sense that the acceptance contained in annexure “EGL2” did reach the

applicants’ attorneys; and

 

(b)  whether a binding agreement came into being or whether this was



 

merely a gentleman’s agreement between attorneys, as counsel for the

 

applicants contended.



 

 

[11]     The first issue can be readily determined. These are motion proceedings



 

and where there are disputes of fact the rule stated in PLASCON-EVANS

 

PAINTS LTD v VAN RIEBEECK PAINTS (PTY) LTD 1984 (3) SA 623 (A)

 

applies. The question of whether annexure “EGL2” was received by the



 

attorneys for the applicants stands to be resolved on the basis of the

 

averments contained in the respondent’s answering affidavit together with



 

the averments made in the founding affidavit of the applicants which the

 

respondent admits. The version of the respondent is that the respective



 

firms of attorneys in Bloemfontein use Docex to exchange correspondence

 

and that the letter in question was properly delivered to Docex for



 

forwarding to the attorneys for the applicants. In this regard the respondent

 

has filed affidavits detailing all the steps normally taken in the process and



 

verifying that the letter was duly delivered to Docex on 10 May 2005. It is

 

trite that where an offer is communicated through the post a contract



 

comes into being upon posting of the letter of acceptance. See CAPE

 

EXPLOSIVES WORKS LTD v SOUTH AFRICAN OIL AND FAT

 

INDUSTRIES LTD (1) 1921 (CPD) 244; KERGEULEN SEALING AND

 

WHALING CO LTD v COMMISSIONER FOR INLAND REVENUE 1939

 

(AD) 487. In casu Docex had been appointed for exchange of



 

correspondences between the Bloemfontein attorneys of the parties herein

 

and the contract would have come into existence upon delivery of the letter



 

of acceptance to Docex.

 

 

[12]     Besides, the inference can be drawn that the letter was indeed received by



 

the attorneys for the applicants on the basis of the following. The letter was

 

posted on 10 May 2005 and if it had not been received, one would have



 

expected the applicants’ attorneys to have written a further letter or letters

 

seeking a response to their proposals. In the event, no enquiry whatsoever



 

was made and a period of some four months elapsed before the next letter

 

dated 9 September 2005 followed wherein the applicants’ attorneys



 

suddenly changed stance and soughs to withdraw the offer, admittedly on

 

advice of their senior counsel. Is it by chance that the applicants kept the



 

matter in abeyance for so long? In all probability the matter was kept in

 

abeyance precisely because the letter of acceptance had been received.



 

As counsel for the respondent submitted, the version of the applicants

 

does not exclude the possibility that the letter was received but was



 

somehow mislaid.

 

 

[13]     The cardinal question is whether the agreement reached is a binding



 

contract. The applicants contend that it could not have been the intention

 

of the parties to be bound by what was merely an arrangement. Counsel



 

for the appellants referred inter alia to ROBINSON v RANDFONTEIN

 

ESTATES GOLD MINING CO. LTD 1921 (AD) 168 for an example of an

 

agreement which was not intended to be legally binding, because of the



 

absence of animus contrahendi. Counsel also contended that this was

 

merely a gentleman’s arrangement between attorneys that was not



 

intended to be binding on the parties. Counsel also submitted that since it

 

is the respondent who is relying on the agreement, he bears the onus of



 

proving it. In dealing with the latter point, counsel for the respondent

 

submitted that annexures “Y03” and “EGL2” constitute a complete



 

memorial of the terms of the agreement and that therefore the parole

 

evidence rule applies. He submitted that there was a clear and



 

unambiguous offer which was accepted and that a binding agreement has

 

been shown.



 

 

[14]     I have given the background to the agreement purely in order to put the



 

agreement in its proper setting. From this it is clear that the proposal

 

emanates from two sources. Firstly, the applicants did not want to sue the



 

respondent (the second applicant’s brother) and the summons against him

 

was issued on the advice of their attorneys as a precautionary measure in



 

case the claim against the RAF did not succeed on an unlimited claim

 

basis. That explains why it was proposed that the case against the



 

respondent should not be proceeded with until the claim against the RAF

 

was finalised. Secondly, the applicants’ attorneys were confident that they



 

had a good case against the RAF and believed that the case against the

 

respondent would ultimately fall off. The letter containing the proposal is



 

evidence of this and contains a clear and unambiguous proposal that

 

should the case against the RAF succeed as envisaged “... sal die aksie



 

onder saaknommer 773/2005 teruggetrek word.” Only if the case against the

 

RAF failed “... sal die aksie onder saaknommer 773/2005 voortgesit word.” The



 

letter incorporates clear terms, which if accepted would leave no doubt as

 

to what was agreed upon. It is a firm offer that fits comfortably with the



 

description of an offer given by Levy J in the following terms in WASMUTH

 

v JACOBS 1987 (3) SA 629 (SWA) at 633 E: “It is fundamental to the nature

 

of any offer that it should be certain and definite in its terms. It must be firm, that is,



 

made with the intention that when it is accepted it will bind the offeror.” The instant

 

matter is clearly distinguishable from the offers alleged in matters like



 

ROBINSON v RANDFONTEIN ESTATES GOLD MINING CO. LTD,

 

supra.

 

[15]     I have already indicated that the offer emanates from the reluctance of the



 

applicants to sue the respondent and it can be inferred from its language

 

and background facts that they intended it to be binding and indeed



 

implemented it for some time until advised of the risk of sticking to it. In her

 

replying affidavit the second applicant concedes as much when she says



 

“Nowhere in my founding affidavit did I suggest that the intention was initially

 

otherwise than to stay the FS action pending the outcome of the TPD action.” This



 

was not a gentleman’s agreement between attorneys.

 

The attorneys were merely implementing the mandates of their respective



 

clients when they concluded the agreement.

 

 

[16]     Counsel for the applicants also argued that for a contract to be valid and



 

binding the parties must intend it to have legal consequences. He

 

suggested that the contract would have had no legal consequences since



 

the respondent could not be able to recover damages in the event of it

 

being breached. The answer to this is that recovery of damages is not the



 

only remedy available to the innocent party upon breach of contract. One

 

of the remedies is to refuse to accept repudiation and to insist on holding



 

the defaulting party to the contract (specific performance) or he/she can

 

obtain an interdict to prevent a breach or threatened breach of the



 

contract. See generally R H Christie, The Law of Contract in South

 

Africa, 5th Edition page 330 – 334.

 

 



[17]     As to the proof of the contract, I agree with counsel for the respondent, that

 

the annexures “Y03” and “EGL2” constitute a complete written memorial of



 

the terms agreed upon. The language used is plain and unambiguous and

 

there can be no doubt as to what the parties intended. Therefore the



integration rule applies and no further evidence was needed to establish

 

the contract.



 

 

[18]     I conclude that the agreement concluded by the parties herein is a binding



 

contract. In the premises, the applicants are not entitled to a order sought

 

and the application is dismissed with costs.



 

 

 



 

___________



H.M. MUSI, J

On behalf of appellants: Adv. J.F. Mullins S.C.

Instructed by:

Honey Attorneys

BLOEMFONTEIN

 

On behalf of first respondent: Adv. Nic van der Walt S.C.



Instructed by:

Roderick & Lowe Attorneys



BLOEMFONTEIN

/sp


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