THE REPUBLIC OF SOUTH AFRICA

WESTERN CAPE HIGH COURT, CAPE TOWN

CASE NO: 6327/2008

In the matter between:

and

JUDGMENT : 1 APRIL 2011

Koen, AJ

4. Not many of the facts were in dispute. It is common cause that a company called Fifth Season Investments 173 (Pty) Ltd ("Fifth Season") first decided to proceed with the Gordon Sands development. This company was the vehicle employed by a joint venture between Zen Q Properties (Pty) Ltd and the Crown Hill Properties CC One Welsh represented the former, and Dr Vlok represented the tatter. Welsh, however, was the person who managed the business of the joint venture.

8. In the meanwhile, for reasons which are not clear {or important) the joint venture floundered, and Fifth Season fell out of the picture. This turn of events came to the attention of the plaintiff. He made enquiries of Dr Vlok and was told that the defendant would be proceeding with the development in its own name and that it would be prepared to take over the development's professional team, including the estate agent, from the joint venture.

11. It will be apparent that the proposed rate of commission was lower than that which had been agreed with Welsh. Negotiations about the rate of commission ensued. After discussions, and on 14 August 2006, the defendant sent a telefax - again addressed to "Russel Glyn-Cuthbert" - in which the following was stated:

"Herewith a summary of our conversation earlier -
1 .[the defendant] will pay Rusking 4.5% commission plus VAT on the Gordon Sands soles (exclusive of VAT) made by Rusking if Rusking delivers the following before 16:00 Friday 18 August 2006:
	
	65 deposits of RIO 000 each with Lucille Geldenhuys Attorneys. Some people have paid deposits of R 1000 or R 5000 - we emphasize that every deposit needs to be R 10 000.
2. [the defendant] will pay Rusking 4,0% commission plus VAT (exclusive of VAT) made by Rusking if Rusking delivers anything less than stipulated above at 16:00 Friday 18 August 2006."
12. The request was complied with, and the defendant informed accordingly, by way of a letter written on a Rusking Real Estate letterhead, on 18 August 2006.

14. It is also necessary to mention that Midnight Storm had purchased certain of the units in the Golden Sands Development. The transfer duty declarations, prepared by the developer's attorney, which the plaintiff had signed during November 2007, reflected that estate agents commission was due to Little Swift.
15. The defendant argued that the draft agreement of mandate reflecting Little Swift to be the estate agent, the invoices issued in the name of Little Swift, the transfer duty declarations reflecting the estate agent to be Little Swift, and the attorney's letters written on behalf of Little Swift proved that it was Little Swift which had contracted with the defendant. It is therefore necessary to examine how these features of the case were explained by the plaintiff in his evidence.

17. In regard to the draft agreement of mandate the plaintiff testified that he had intended the agreement prepared during April 2006 reflecting the parties to be Fifth Season and Little Swift to serve as a precedent, or template, when he sent it to the defendant on 2 August 2006. He had not meant it to indicate that Little Swift was the estate agent, and not himself, or that Fifth Season was the developer, and not the defendant. The agreement could never have been intended by the parties to be signed in the form in which it was. It contained material and obvious errors. It reflected the developer to be Fifth Season, and contained a warranty given by Fifth Season to the effect that it was or would become the owner of the land to be developed. It is quite clear that the developer was not intended to be Fifth Season at that time, and Dr Vlok testified that at that stage it was never contemplated that Fifth Season would own the land. It is overwhelmingly probable, in my view, that the plaintiffs evidence that the draft agreement was intended to serve as a precedent is correct.
18. The plaintiff, in his evidence, testified that he ran a number of businesses and employed an administrative staff of 18 persons. He could not explain how the July 2007 pro forma invoice in the name of Little Swift came to be issued. He said that it was an error, which perpetuated itself when his accounts staff instructed the attorneys to send the letters of demand. He had no hand in it being sent.

21. In regard to the transfer duty declarations the plaintiff testified that he had been sent the documents by the defendant's conveyancers. Each document had been drafted by them. Pencil crosses were appended to the documents reflecting where his signature was required. He had not examined the documents carefully, but merely signed where the crosses appeared and returned them to the conveyancers.
22. The plaintiff was cross examined very capably and at some length about the transfer duty declarations. His evidence was not discredited in any significant respect during this process. I formed the impression that he was honest and forthright and I accept his explanations in regard to these issues outlined above.

25. In the circumstances I have come to the view that the plaintiff has proved that it was himself who contracted with the defendant.

26.1 need add only that the fact that the commission was due and payable by the defendant on date of registration of transfer of the sectional title units was not in dispute. This was 26 November 2007. In argument counsel for the plaintiff submitted that interest should thus run from the following day, 27 November 2007.

27. I therefore grant judgment in favour of the plaintiff against the defendant for:
a)	payment of the sum of R 1 475 603.88;
(b) interest on the amount referred to in paragraph (a) above at the legal rate from 27 November 2007 to date of payment;
(c) costs of suit.