THE
HIGH COURT OF SWAZILAND
THEMBA
MAGAGULA
Plaintiff
And
MELODY
FRUHWIRTH
Defendant
Civil
Case No. 1215/2001
Coram S.B.
MAPHALALA - J
For
the Plaintiff MR. M. THWALA
For
the Defendant IN ABSENTIA
JUDGEMENT
(30/07/2002)
(a) Introduction
This
matter initially came under a certificate of urgency by way of motion
proceedings. The plaintiff (who was applicant then) applied for an
order inter alia interdicting the third respondent (The Registrar of
Deeds) from registering transfer of certain Lot 385 Coates Valley
Manzini district Swaziland until applicant has been paid his estate
agents' commission of E25, 000-00; directing the first respondent
(the defendant) to pay forthwith, the sum of E25, 000-00 being estate
agents' commission due and payable in terms of a mandate given by the
first respondent to the applicant; costs of the application and
further and/or alternative relief.
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The
matter appeared before Sapire CJ on the 17th August 2001, where he
converted the motion proceedings to trial proceedings as there was a
material dispute of fact which could not be resolved in motion
proceedings. The learned Chief Justice ordered as follows: "The
notice of motion to stand as summons. The applicant to file
declaration within 14 days. Rules of court to apply. Wasted costs to
be reserved for trial..."
Indeed
the plaintiff filed his declaration on the 28th August 2001, and the
defendant filed her declaration on the 4th October 2001. The matter
remained in abeyance until the attorneys for the parties convene a
pre-trial conference on the 24th May 2002 where it was recorded inter
alia in the pre-trial minute that:
"1 ...
2 Defendant
denied the existence of any agency agreement between the parties.
3 Plaintiff
persists that he was given a mandate to find defendant a house for
sale..."
The
matter was set down by the Registrar of this court for trial on the
19th June 2002. When the matter was called the plaintiff was present
and the defendant was not in attendance nor was her legal
representative. It emerged that the defendant's attorneys had filed a
notice of withdrawal dated the 10th June 2002 with the necessary
certificate of posting. I meru motu raised the issue with Mr. Thwala
for the plaintiff that the dies had not expired in terms of the
rules, that the defendant must within 10 (ten) days of receipt of
this notice, appoint and notify the plaintiff and the Registrar of
this court of its address where it may be served with all process in
the proceedings. Mr. Thwala conceded the point and the matter was
postponed to the 25th June 2002 to allow the dies to run its course.
On
the return date when the matter was called the defendant was not in
attendance and the plaintiff was in attendance nor was there any
indication that she had complied with the rule afore-mentioned. The
matter then proceeded on the basis that the defendant was in default.
It is trite law that if, when a trial is called, the plaintiff
appears and the defendant does not appear, the plaintiff may prove
his claim to the extent that the burden of proof lies upon him, and
judgment must be given accordingly, in so far as he has discharged
that burden (see Herbstein at al The Civil Practice of the Supreme
Court of South Africa (4th ED) at page 661 and the cases
3
cited
thereat). The court then heard the evidence of the plaintiff himself
and one Mr. Nkabinde who gave evidence on his behalf.
(b) The
cause of action
The
plaintiff avers in his declaration that in or around August 2002, at
Manzini plaintiff and defendant entered into a verbal mandate in
terms of which defendant mandated plaintiff to find a residential
property for sale. Plaintiff accepted the mandate.
It
was an express or implied term of the mandate that defendant was to
pay plaintiff, in the event of a sale being concluded as a result of
plaintiff s efforts, the usual and customary commission of five per
cent (5%) of the total purchase price.
In
pursuance of this mandate plaintiff introduced defendant to two
properties on Flamboyant Road, Coates Valley, Manzini. There were Lot
382 and Lot 385. In consequence of these introductions and as a
direct result thereof defendant on or about 27th September 2000,
bought Lot 385 for a sum of E500, 000-00.
Plaintiff
contends that, consequently he is entitled to his commission and/or a
reasonable remuneration of five percent. On that amount to wit, E25,
000-00. Notwithstanding due demand defendant has wrongfully and
unlawfully failed, refused and/or neglected to pay the aforesaid sum
of E25, 000-00. The plaintiff also claims interest thereon at 9% per
annum a tempore morae and costs of suit.
© The
defendant's defence
The
defendant pleaded in her declaration that the first time she ever saw
plaintiff was when the latter came to her house at Coates Valley
which she was renting from Swaziland Property Market. Plaintiff came
to show some people the house which was apparently up for sale.
Rentals were being paid to Swaziland Property Market by her.
Defendant never at any stage requested plaintiff to find a house to
purchase. The defendant is also not aware of a customary and/or usual
commission of 5% that she
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agreed
either expressly or impliedly to pay plaintiff upon the conclusion of
a sale on her behalf.
Defendant
avers that Lot 385 Coates Valley was advertised by a certain David
Boxhall - Smith for sale for sale in the Times of Swaziland newspaper
of the 14th September 2000. Upon seeing the advertisement defendant
contacted the aforesaid Mr. Boxhall - Smith with a view to seeing the
house after which negotiations commenced between defendant and Mr
Boxhall - Smith and it was finally agreed that the purchase price
shall be the price of E500, 000-00. A deed of sale was subsequently
prepared in respect of the sale by the offices of attorneys Samuel S.
Earnshaw and Partners. No- where in the agreement is there any
mention of the plaintiff's commission. Defendant denies that she is
in no way indebted to the plaintiff in the sum of E25, 000-00 or any
amount at all.
(d) Synopsis
of the evidence
As
I have stated earlier on in this judgment that the defendant did not
appear, the plaintiff proceeded to prove his claim by giving viva
voce evidence and he also called the evidence of one Mr. Nkabinde.
The evidence of the plaintiff briefly put is as follows: The
defendant at the material time was renting the house which was
subsequently bought by Mr. Nkabinde. The defendant as she had to
vacate this house instructed him to look for a house for her in the
same area of Coates Valley in Manzini. The defendant was to pay him
the standard rate of 5% as commission.
In
pursuance to this verbal agreement plaintiff proceeded to look for
houses and ultimately secured a certain Mr. Smith who eventually sold
his house to the defendant for E500, 000-00.
Mr.
Nkabinde who was called by the plaintiff to testify on his behalf
confirmed that he bought the house which was then let out to the
defendant. He pressurised the plaintiff for the defendant to vacate
the house which he had purchased and needed to take occupation. There
were discussions that went on between the three parties viz, the
plaintiff, defendant and Mr. Nkabinde resulting in the latter giving
the defendant a grace period of two months on which to vacate the
house.
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As
the defendant has not given evidence in this matter there is nothing
to gainsay the evidence led by the plaintiff.
(e) The
applicable law
It
is a trite principle of law that a party who engages an estate agent
to find a purchaser of his property (the mandate usually given to an
estate agent) is, unless otherwise agreed, only obliged to pay the
agent his commission if the following requirements are met:
i) The
mandator has entered into a binding contract of sale with a person
who, at the time entering into the contract, was willing and able to
perform his obligations under it. A binding sale must be concluded.
The maxim in this regard is "no sale, no commission", (see
Robert Sharrock, Business Transaction Law 4th ED at page 284 and the
case of Brayshaw vs Schoeman en Andere 1960 (1) S.A. 625 (A)).
ii) The
estate agent's efforts were the "effective" cause of the
sale. It must be shown that the agent's actions were the decisive
factor in bringing about the transaction. Schreiner JA in the case of
Barnard's Parry Ltd vs Strydom 1946 A.D. 931 at 936 had this to say:
"Often
the first introduction of the seller's property to the purchaser will
be the decisive factor; this will be so in the ordinary case where
nothing intervenes to prevent the introduction from leading straight
on to the sale. But sometimes the purchaser does not act immediately
on the introduction; there may be lengthy negotiations and other
events may happen that may tend to promote the sale or discourage the
parties from entering into it. In such cases the decisive factor may
be some exercise of the art of persuasion, or the removal of
financial obstacles, or the like".
The
onus is on the plaintiff to prove the above-mentioned requirements.
i) The
law vis a vis the facts of this case
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The
first question is whether plaintiff had been given any mandate, on
the facts as they appear on the papers and plaintiff's viva voce
evidence it is clear that plaintiff relies on an express mandate
given by defendant. The evidence of the plaintiff has not been
controverted in casu that there was consensus between the defendant
and plaintiff and that the latter acted on behalf of the former. When
one look at the conduct of the defendant and all surrounding
circumstance such that she was under pressure to find alternative
accommodation; was about to purchase Mr and Mrs LeGrante's property
through plaintiff's introduction. The evidence of Mr. Nkabinde who
gave evidence on behalf of the plaintiff added more weight to the
plaintiff's version.
The
cumulative effect of all the evidence of plaintiff and the
circumstances of defendant leads one to conclude that a mandate to
find suitable accommodation was given. (see Michael V. Vermeulen and
another 1971 (1) S.A. 442 at 444H - 445A and also Karol vs Fiddel
1948 (4) S.A. 466 at 472).
Once
it is admitted that on the evidence before court that the services of
plaintiff were retained by the defendant (as it should), what remains
is for the plaintiff to prove that he was the "effective"
cause of the sale agreement. This part of the inquiry turns to be
decided on whether plaintiff was the one who first introduced the
defendant to the property. (see Munitz vs Steers Trust Co. (Pty) Ltd
1993 (2) S.A. 396 © at 391D and Barnard vs Parry (supra) at 936).
On
the defendant's version gleaned from her papers she asserts that she
saw the property being offered on the Times of Swaziland. Plaintiff
on the other hand contends that he is the one who saw the advert by
the seller, phoned him for an appointment and later introduced the
defendant to the property. The fact that the defendant came to view
the property with plaintiff has not been disputed. From the evidence
as a whole the balance of probability justifies the assertion that
plaintiff did introduce defendant to the property.
In
sum, I come to conclusion on the facts that the plaintiff has
discharged his onus of proving Firstly, that he was given a mandate
to find an immovable property suitable to
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the
tastes of the defendant and secondly, plaintiff was that effective
cause of the ultimate sale between the defendant and the seller.
As
to the amount payable to the plaintiff it is trite law that the
mandator must pay the mandatary the remuneration they have agreed
upon. Where the amount of the remuneration is not expressly or
tacitly fixed by agreement, it must be determined by reference to
custom or usage of the profession concerned. (see Robert Sharrock
(supra) at page 282). In casu, it is plaintiff uncontroverted
evidence that they agreed on the customary 5% in the estate agents'
trade. In the instant case it would be 5% of the purchase price of
E500, 000-00 which would be a sum of E25, 000-00.
i) The
Court Order.
In
the result, the following order is recorded, that judgement is
entered in favour of the plaintiff that defendant:
a. Pays
a sum of E25, 000-00;
b. Interest
thereon at 9% per annum a tempore morae;
c. Costs
of suit.
S.B.
MAPHALALA
JUDGE
