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IN THE HIGH COURT OF SOUTH AFRICA

(CAPE OF GOOD HOPE PROVINCIAL DIVISION)

Case no: 6680/2008

In the matter between:

INDEPENDENT NEWSPAPERS (PTY) LIMITED ..........................................................................Plaintiff

And

BRITTANIA BAY DEVELOPERS (PTY) LIMITED .....................................................................Defendant

JUDGE P.A.L. GAMBLE

FOR THE PLAINTIFF Adv. R.G. Patrick

INSTRUCTED BY Messrs John Taylor and Associates Inc

FOR THE DEFENDANT Adv. M. Daling

INSTRUCTED BY Malherbe Hanekom Inc

DATES OF HEARINGS 29 February, 1 March and 19 March 2012

DATE OF JUDGMEN 17 April 2012

IN THE HIGH COURT OF SOUTH AFRICA

WESTERN CAPE HIGH COURT, CAPE TOWN

REPORTABLE

CASE NO: 6680/08

[13] Of greater importance, however, is a letter written to Joubert by Coetzer on 25 February 2008 in which she explained to him in great detail how the Plaintiff had relied on the say-so of van den Bergh when placing the advertisement. It is clear from this letter that Coetzer did not suggest to Joubert at that stage that there had been a prior telephonic discussion at the time that the advertisement was placed which had led the Plaintiff to believe that Joubert knew that van den Bergh had placed the advertisement on behalf of the Defendant and/or that the Defendant had authorised it. The gist of the letter is that the placing of the advertisement had occurred as a result of a mistaken belief on the part of the Plaintiff that van den Bergh had acted on the authority of the Defendant.

[14] Joubert was an equally unimpressive witness. His arrogant and bombastic nature (which is clear also from the wording of the article) shone through in the witness box. He was vague on crucial issues (as to whether he and Coetzer had spoken on the phone) and he seemed to make things up as he went along. For example, his eventual explanation of the rationale behind paying only for the Cape Times advertisement was that he had personally authorised the placement thereof with either of Ian Jeffreys or Tommy Moodley (both alleged erstwhile employees of the Plaintiff at that title) because they were the people with whom he customarily dealt at the Cape Times. The Court is not persuaded either that Joubert was a candid witness.

[15] But what Joubert’s performance in the witness box did show was that he is decidedly the “guiding mind' or alter ego of the Defendant and that no decisions are made by the company which do not cross his desk or meet with his approval. Indeed, Joubert’s inability to distinguish between personal liability and corporate liability was manifest: he is the Defendant, so he would believe, and nothing of importance happens at the Defendant without his direct involvement. This is particularly so in relation to advertising. Given that the advertisement was to portray his philosophical meanderings rather than the availability of a sea-side plot at some idyllic location, it is all the more likely that Joubert would have wanted to have been involved in issues relating to its placement. It is most unlikely that he would have left this function up to van den Bergh.

THE PLAINTIFF’S ARGUMENT

[16] No doubt realising that the Plaintiff had a mountain to climb on the authority issue, Mr Patrick limited his argument on behalf of the Plaintiff to two sharply focussed points.

[17] In the first place, it was argued that the Defendant was bound to pay the Plaintiff the outstanding amount as a consequence of Joubert’s part ratification of the entire transaction when Defendant paid for the Cape Times copy.

[18] Secondly, Mr. Patrick argued that during the alleged telephone discussion between Joubert and Coetzer, there had been a duty on Joubert to speak out and to draw Coetzer’s attention to the fact that his authorization, rather than that of van den Berg, was required before the advertisement could be placed. With reference to the authoritative English work by Spencer Bower ³. it was suggested that, where Joubert was under a duty to correct any mistaken belief on the part of Coetzer as to the existence of authorization by the Defendant for the placement of the advertisement, the Defendant was later estopped from denying such authority.

[19] It will immediately be noticed that neither of the points so astutely argued by Mr. Patrick are traversed in the pleadings. Undoubtedly they should have been, for both set up very specific defences which needed to be dealt with in the evidence. In addition, this is not a case where the points were covered by the evidence and could then be said to be there for the taking during argument.

[20] It is as well to reconsider the leading judgment of Innes CJ in Robinson v Randfontein Estates Gold Minina Company Limited ⁴ on the purpose of pleadings:

“The object of pleading is to define the issues; and parties will be kept strictly to their pleas where any departure would cause prejudice or would prevent full enquiry. But within those limits the Court has a wide discretion. For pleadings are made for the Court and not the Court for the pleadings. And where a party has every facility to place all the facts before the trial Court and the investigation into all the circumstances has been as thorough and as patient as in this instance, there is no justification for interference by an appellate tribunal, merely because the pleading of the opponent has not been as explicit as it might have been. We are therefore bound to give full effect to the failure of the appellant to establish the genuineness of the contract upon which he relies. ”

[21] And, more recently, in Imprefed (Ptv) Ltd v National Transport Commission ⁵ the Court stressed that the object of pleading is to obtain certainty regarding that which is at issue between the parties and this can only be achieved when the parties state their cases in the pleadings with the requisite degree of precision.

[22] In argument Mr. Patrick submitted that it was not necessary for the Plaintiff to plead the partial ratification point since this was a conclusion of law to be drawn from the circumstances. I do not agree. In my view an issue such as ratification (or its half-brother, part-ratification) is a particular species of assertion (much like estoppel) which needs to be expressly pleaded (often by way of replication) so that the other party is alive to the point and can explore its applicability to the facts at hand by either the advancing of evidence or by cross-examination. ⁶ But if I am wrong on this aspect, I do not believe in any event that the limited evidence before the Court establishes, on a balance of probabilities (and the onus is of course on the Plaintiff), that Joubert purported to ratify the authority of van den Bergh to bind the Defendant to all of the Plaintiff’s titles when he paid for the advertisement in the Cape Times.

[23] in LAWSA (2^nd edition) Volume I at p199 para 201 the learned author Professor Wanda points out that ratification is a unilateral act which does not require the co-operation of the other party:

“Like any other expression of will ratification can be in words or conduct. Whether particular words or conduct signifies a particular intention is a question of fact. The answer to this question can be difficult especially when it has to be found by way of inference from conduct No hard and fast rules can be laid down regarding the inferences which can be made from such conduct” (footnotes omitted).

[24] When the Defendant received a letter of demand from the Plaintiff threatening listing with a credit bureau in the event of non-payment of the entire amount, Joubert’s reaction was explosive and culminated in a letter accusing the Plaintiff of, inter alia, criminal conduct. It was most decidedly not indicative of any act of approval or ratification. However, the circumstances relating to the subsequent decision to pay for the Cape Times advertisement were not fully canvassed at the trial; it seems that there may even have been without prejudice discussions which preceded it.

[25] Kerr, The Law of Agency (4^th edition) p92 refers to the judgment of Greenberg J in Theron v Leon ⁷ in which reliance was placed on a passage in Halsbury’s Laws of England to the following effect:

"a contract cannot be ratified in part and repudiated in part, if ratified, the whole contract must be ratified, and the agency accepted cum onere. Ratification of one of a series of acts constituting one transaction operates as a ratification of the entire transaction. ”

[26] And, as Kerr, loc cit, points out -

“it must be remembered that it is the true intent of the principal which must be considered and not merely the fact that he has used words which might be construed out of their context, as ratification of a part of a transaction. ”

[27] The learned author also quotes from the 2^nd edition of the American Restatement to the following effect:

“If the principal says he is willing to accept the benefits resulting from a transaction but is unwilling to be subjected to its obligations, it is a question of fact whether or not he affirms. If he manifests that he does not intend to affirm the transaction or to receive the benefits unless he can do so without assuming the obligation, he does not thereby ratify the transcation or any portion of it...”

[28] On the evidence placed before me I cannot conclude with any degree of certainty that by paying for the Cape Times advertisement Joubert purported to ratify the entire transaction concluded on behalf of the Defendant by van den Bergh. In fact, as I have pointed out above, the evidence seems to point the other way.

[29] Finally, as the judgment in the Broderick Motors Distributors case supra shows, it is open to a principal to ratify some, but not all, transactions in a series. So much then for the suggestion that there was part-ratification by the Defendant in the instant case.

[30] I turn finally to the estoppel argument. It will be seen from the passage in the pleadings quoted in para 7 above, that the estoppel raised in the replication was in relation to the alleged historical conduct of van den Bergh and Wilder and the impressions and/or representations created thereby. Yet, when the time came to argue the point, a completely different factual scenario was relied upon. Mr. Patrick argued, with reference to the allegedly analogous situation involving a negligent misrepresentation, that Joubert’s failure to correct any mistaken impression on the part of Coetzer during their alleged telephone conversation that his prior authorization was required for the placement of any advertisement, was sufficient to constitute a representation for purposes of raising an estoppel.

[31] It is trite that the defence of estoppel must be specifically pleaded, and then properly so. ⁸ But, the case as pleaded and the point as argued, bear no resemblance to each other, nor to the evidence: they are not even the most distant of cousins. I am accordingly not persuaded that the Plaintiff has discharged the onus in establishing the alleged estoppel either. The point may thus have been worthy of consideration if it had been pleaded and then traversed in the evidence.

CONCLUSION

[32] It follows then that the Plaintiff has failed to establish either of the issues

upon which it ultimately relied in argument at the conclusion of the trial. Its claim is therefore dismissed with costs.

GAMBLE J

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