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

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      Case No. : 1386/2007


In the matter between:


OOSTHUYSEN BEATRIX                                                                                                                           First Applicant

OOSTHUYSEN YOLANDE                                                                                                             Second Applicant




OOSTHUYSEN PETRUS JOHANNES                                                                               First Respondent

ROAD ACCIDENT FUND                                                                                                           Second Respondent











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








[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.




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




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








(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






[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.







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

Instructed by:

Honey Attorneys



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

Instructed by:

Roderick & Lowe Attorneys



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