IN THE HIGH COURT OF SOUTH AFRICA 
(CAPE OF GOOD HOPE PROVINCIAL DIVISION)

Case no: 6680/2008
In the matter between:

and

IN THE HIGH COURT OF SOUTH AFRICA WESTERN CAPE HIGH COURT, CAPE TOWN
REPORTABLE

CASE NO: 6680/08

In the matter between:

and

JUDGMENT: 17 APRIL 2012

GAMBLE, J
INTRODUCTION

advertisement in the Business Report section of four of its titles viz the Cape Times, the Star, the Pretorian News and the Mercury. The advertisement contains an ambitious message by one Gert Leopold Joubert ("Joubert") to his fellow citizens on the issue of poverty alleviation and suggests, in fairly simplistic terms, his perception of the panacea to South Africa's economic woes.

sales representative in Johannesburg, Sonja Coetzer, concluded a contract for the placement of the advertisement with the Defendant represented by one Elize van den Bergh and a certain Ryan Wilder. It is alleged that van den Bergh placed the advertisement while Wilder supplied the advertising material to the Plaintiff. The Plaintiff claims that these two individuals were duly authorised to act on behalf of the Defendant.

case by alleging that:
6.1. Wilder had on occasion prepared advertising material for it and delivered same to Plaintiff for publication;
6.2. it was unable to say who delivered the advertisement in question to the Plaintiff but suggested that it was possible that Wilder had done so;

6.4. the Defendant could not recollect who represented the Plaintiff in regard to the placing of the Cape Times advertisement.

The Defendant declined to furnish any further particularity regarding the terms of the oral agreement pursuant whereto it was alleged that the Cape Times advertisement was placed, saying that this was a matter for evidence.

persisted in its allegation that van den Bergh and Wilder were duly authorised In the alternative, the Plaintiff alleged that the Defendant was estopped from denying the authority of van den Bergh and Wilder on the following basis.

"1.2.1. The Defendant placed adverts with the Plaintiff historically through the agency of Elize van den Bergh, and Ryan Wilder historically had provided advertising material to the Plaintiff from the Defendant;

1.2.2. At no time did the Defendant advise the Plaintiff that the mandate afforded by the Defendant to Elize van den Bergh and Ryan Wilder was terminated or limited;

the Defendant accordingly represented to the Plaintiff that Elize van den Bergh and Ryan Wilder were duly authorised without limitation to place adverts and provide advertising material on its behalf in newspapers published throughout South Africa;

THE EVIDENCE

regard to her dealings with van den Bergh. It appeared that van den Bergh worked for Beeld newspaper in Johannesburg where Coetzer had also worked until the end of September 2007 when she joined the Plaintiff. Coetzer knew that van den Bergh had regularly placed advertisements for the Defendant in Beeld and that she and Joubert therefore had a working relationship.

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.

THE PLAINTIFF'S ARGUMENT

"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 hasevery 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."

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).

"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."

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..."

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.

CONCLUSION

GAMBLE J