9
REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG LOCAL DIVISION, JOHANNESBURG
(1) REPORTABLE: NO (2) OF INTEREST TO OTHER JUDGES: NO (3) REVISED
_26-9- 2022__ ____________ DATE SIGNATURE
|
CASE NUMBER: 2021/59399
In the matter between:
MARTHINUS JOHANNES WOLMARANS Applicant
and
TANIA DAVEY-SMITH Respondent
_________________________________________________________________
JUDGMENT
_________________________________________________________________
DOSIO J:
INTRODUCTION
[1] This is an application whereby the applicant seeks an order to declare an oral
agreement entered into between the applicant and the respondent to be a binding agreement,
as well as specific performance.
[2] The applicant, is the owner of a male Hungarian Vizla dog known as ‘Cody’.
The respondent is a breeder of Hungarian Vizla dogs and the owner of the Roxstar Hungarian
Vizla Kennel. She also owns a female Hungarian Vizla dog known as ‘Charlie’.
[3] Cody, would be used to breed a litter of puppies with Charlie. A puppy called ‘Ocean’
was born as a result of the breeding.
[4] The applicant contends that in terms of the oral agreement it is entitled to delivery of
Ocean, whereas the respondent contends that the applicant is not entitled to delivery of Ocean.
[5] The application is accordingly opposed and the respondent has raised a point in limine,
submitting that there is a clear substantial dispute of fact which should have been anticipated
by the applicant.
BACKGROUND
[6] Both parties agree that Cody would be used to mate with Charlie and that this was by
way of an oral agreement. It is common cause that the communication between the parties was
by way of WhatsApp messages. It appears there were also telephonic discussions.
[7] On 17 July 2021, Cody was transported to the respondent’s kennel by the applicant’s
son. The applicant enquired from the respondent when he could collect the puppy and the
respondent stated that it would be best if the puppy be collected at six weeks of age
[8] Only one puppy was born, namely Ocean, which is a male puppy.
APPLICANT’S VERSION
[9] The applicant contends that it would receive compensation for the use of Cody by the
respondent in the form of one puppy born from the litter. However, despite the terms of the oral
agreement and subsequent demands, the respondent has failed to deliver the puppy to the
applicant.
[10] The applicant maintains that from the outset, the parties never discussed a situation
that if only one puppy was born and it was male, that in such an event the puppy would remain
with the respondent. Accordingly, the applicant contends that the respondent reneged from the
terms of the agreement. Accordingly, the applicant contends that the respondent has
repudiated the agreement, which repudiation the applicant does not accept. The applicant
requests that the oral agreement between the applicant and the respondent be declared a
binding agreement and seeks specific performance in terms of the agreement by delivery of
Ocean as agreed.
[11] The applicant contends that the case advanced by the respondent in the answering
affidavit consists of bald or un-creditworthy denials and raises fictitious disputes of fact.
Furthermore, it is palpably implausible, farfetched, and clearly untenable. The applicant
maintains that it pursued the relief sought by way of application procedure, as opposed to the
action procedure, as no dispute of fact was reasonably anticipated or evident.
[12] The applicant contends that neither the applicant, nor the respondent had foreseen that
only one puppy would be born from the litter. Notwithstanding this fact, the applicant
contends that it does not change the agreement, as the agreement needs to be interpreted on
the understanding and intention of both parties as and when the agreement was reached.
[13] The applicant contends that the application of industry customs or business practices,
as alluded to by the respondent, are unknown to the applicant and were not represented to the
applicant, or made a condition of the agreement. Therefore, it is without merit, unfounded and
untrue.
[14] The applicant contends that he has proven the agreement and performed his part. The
applicant contends it has a clear right to enforce the oral agreement and that the respondent be
compelled to comply with her obligations arising from the agreement.
[15] The applicant contends that the parties are bound to the oral agreement entered into
and with reference to the interpretation of contracts, the Court having regard to all the evidence
contained in the affidavits can decide this matter.
[16] The applicant contends that as a starting point, the wording of the oral contract and the
portions in the WhatsApp messages clearly record that the applicant would deliver Cody
for breeding and would receive a puppy from the litter.
RESPONDENT’S VERSION
[17] The respondent contends that when Cody first arrived at Roxstar Kennel, she posted
his arrival on her website and also created a WhatsApp group consisting of people who would
be interested in puppies with Cody and Charlie’s bloodline.
[18] The respondent contends that she sent the applicant a WhatsApp on 12 July 2021
and called him on 15 July 2021 to do a mating with Cody and Charlie. She states that this
agreement was initiated by her and that she specifically told the applicant that she wanted a
male puppy from the litter and that she would have first choice over the said litter.
[19] The respondent contends that upon the birth of Ocean, she informed the applicant that
Ocean was male, and if certain tests conducted confirmed that Cody was the father, then
Ocean would be staying with Roxstar Kennel as per the agreement.
[20] During the conversation of 15 July 2021, the respondent contends she also informed
the applicant that she would only proceed with the mating arrangement on condition that the
applicant transfer ownership of Cody to the respondent which would entail that the respondent
be registered as Cody’s owner with the Kennel Union of South Africa (‘KUSA’). It appears that
the purpose of this condition was not to take physical ownership of Cody, but to ensure that the
Roxstar Kennel would acquire all rights with regard to Cody’s progeny from the litter and that
the pups born from the litter would be registered as Roxstar Kennel Hungarian Vizlas.
According to the respondent, the applicant agreed and the respondent was duly registered as
Cody’s owner with KUSA.
[21] On 13 November 2021, the respondent received confirmation that Cody is Ocean’s
father and she communicated this to the applicant via WhatsApp. According to the respondent,
she enquired from the applicant on 13 November 2021 whether he would want for Cody to try to
have another litter with one of her other dogs, called Beetroot and the applicant agreed to this.
[22] The respondent contends that there is a clear dispute of fact in terms of the oral
agreement. Although it was agreed that the applicant would receive a puppy from the litter as
payment for the stud fee, it was agreed that the respondent, as breeder, would have first choice
on any male puppy born from this litter, as the sole purpose of the mating was to ensure that
the respondent had a healthy male purebred Vizla with this specific genetic combination which
she could use as a stud going forward. This male puppy would replace her existing two males,
as she was eager to use the genetics introduced by Charlie, into the breeding program, that is
why she decided to approach the applicant specifically, with a view to do a mating with Cody
and Charlie. Furthermore, after it came to the attention of the respondent that Charlie was
expecting only one puppy, the respondent communicated to the applicant that in the case it was
male, it would remain with her and in the event that it was female, that the applicant could
receive the female puppy as stud fee, alternatively, the respondent could sell the female and
that the applicant agreed to accept a female puppy.
[23] The respondent contends that it was an implied term of the oral agreement that in the
event that if only one puppy was born, which was male, the applicant would not be entitled to
same, but would be compensated accordingly.
[24] The respondent contends that the applicant was aware of the dispute of fact prior to
launching the application, as this position was made clear to him in numerous communications.
In the light thereof, the action procedure should have been followed.
[25] As regards the WhatsApp messages that the applicant is relying on, the respondent
contends that they have been taken out of context and the applicant has purposefully left out
WhatsApp messages contradicting his version. The respondent contends that the applicant is
trying to create the impression that she only informed him she would keep Ocean once Ocean
was born, however, the respondent maintains that it was always part of the oral agreement that
she would have first choice to the pup from the litter.
EVALUATION
[26] It is common cause that there was an oral agreement and that Cody was delivered to
the respondent for breeding purposes. It is further undisputed that the only remuneration for
delivery and use of Cody for breeding would be that the applicant would receive a puppy from
the litter.
[27] The decision to proceed by way of motion instead of an action has been utilised more
frequently due to it being less expensive and more favourable in obtaining an expeditious order.
The party suing is dominus litis as he or she chooses the procedure to be used. The deciding
factor which procedure to use is whether there is a dispute of fact. If there is a dispute of fact,
the appropriate procedure is by way of action. 1
[28] A court will be less inclined, when there are genuine disputes of fact on material issues,
to decide the matter on motion on a mere balance of probabilities, as would be ordinarily done
in an action.
[29] The so-called “Plascon-Evans test” was described by the Supreme Court of Appeal in
in National Director of Public Prosecutions v J G Zuma 2 as follows:
‘Motion proceedings, unless concerned with interim relief, are all about the resolution of legal issues
based on common cause facts. Unless the circumstances are special, they cannot be used to resolve
factual issues because they are not designed to determine probabilities. It is well established under the
Plascon-Evans rule that where in motion proceedings disputes of fact arise on the affidavits, a final order
can be granted only if the facts averred in the applicant’s affidavits, which had been admitted by the
respondent, together with the facts alleged by the latter, justify such order. It may be different if the
respondent’s version consists of bald or un-creditworthy denials, raises fictitious disputes of fact, is
palpably implausible, farfetched, or so clearly untenable that the court is justified in rejecting them
merely on the papers.’ 3
[30] A court should dismiss the application where there are fundamental disputes of fact
on the papers and the applicant failed to make out a case for the relief claimed. 4 This notion
was supported by the Supreme Court of Appeal in the matter of Lombaard v Droprop CC and
Others 5 where it was stated that:
‘…if a party has knowledge of a material and bona fide dispute, or should reasonably foresee its
occurrence and nevertheless proceeds on motion, that party will usually find the application
dismissed.’ 6
[31] This Court is aware of the matter of Sofiantini v Mould 7 where it was stated that a
Court must take a robust, common-sense approach to disputes in motion and not hesitate to
decide the issue on affidavit merely because it may be difficult to do so. However, this is not a
case where the Court can take such an approach. The applicant contends that the starting point
remains the wording of the contract and the only written portion thereof is ‘MJ1’ and ‘MJ2’. This
cannot be, as there are additional WhatsApp messages between the parties, as well as
telephone calls. The contents of the telephone conversations are not before this Court. The
respondent also disputes that the message marked as annexure ‘MJ2’ was sent by the
applicant on 15 July 2021, as she alleges it was sent on 27 April 2021. As regards the
WhatsApp messages that relate to the applicant fetching the puppy when it was six weeks old,
the respondent maintains these WhatsApp messages were sent prior to the birth of the puppy
and prior to the awareness by both parties that only one puppy would be born. According to the
respondent she took Charlie to the veterinarian for a check up on 7 October 2021 and the
veterinarian informed her that Charlie was expecting only one puppy. According to the
respondent, she informed the applicant on the same day that if it was a male puppy and that
she would be keeping the puppy as per their agreement.
[32] There are further posts made on a WhatsApp group created by the respondent, to
which the applicant was added. In this WhatsApp group, the respondent posted a message on
10 October 2021 at 16:25, which included a photo and a subtext to the effect that ‘This pup will
remain with Roxstar as a future stud dog’. The respondent made a further post on the
WhatsApp group on 13 November 2021 at 15:19 in which she confirmed that Ocean would be
her primary stud dog for the next number of years. This message reads as follows:
‘Ocean is one of the nicest doggies we have ever bred. He will be our primary stud dog for the
next number of years, and we are excited to see his genetic contribution to the Vizla breed in
our country.’ The respondent has attached proof that the applicant read both these WhatsApp
messages. It is common cause that the applicant did not comment on this WhatsApp group.
The applicant’s version is that he did not want to go into an argument with the respondent on a
group where other people were included, however, the fact remains that he read it and did not
comment, until 13 November 2021 when he started confronting the respondent. These
WhatsApp messages read as follows:
‘2021/11/13 15:37 – Wollie Wolmerans Durbanville: Ocean??
2021/11/13 15:38 - Wollie Womerans Durbanville: Kan ons praat oor hom.
2021/11/13 15:38 – Tania : Ocean bly by my
2021/11/13 15:52 - Wollie Wolmerans Durbanville: Missed video call’
[33] The fact that certain information was being posted on WhatsApp must have alerted the
applicant to the fact that Ocean would remain with the respondent. This Court is unclear what
transpired between 10 October 2021 and 13 November 2021 and why there is no WhatsApp
messages during this period. If the applicant did in fact comment, between the period 10
October 2021 and 13 November 2021, that is not before this Court.
[34] It is true that there is no expert statement indicating what the customary practices are,
however, the applicant on his own accord admits in his founding affidavit that he did not have
any previous experience in the breeding industry and therefore did not know how the industry
operates. He repeated this once again in his founding affidavit stating that ‘As indicated above, I
do not know what is “customary” in the industry, as I am not a breeder.’ 8 The applicant
contends that he obtained the information of the respondent during April 2021 and started
communicating with the respondent in respect of the possibility that Cody could be used to sire
pups with Charlie. The respondent on the other hand states that she and the applicant were
known to each other since 2016. Should the version of the respondent be true, this would imply
that the applicant was aware of the customs and practices.
[35] The applicant contends that the oral agreement was entered into between the parties in
April 2021, whereas the respondent contends it was entered into in July 2021. This is unclear
from the papers.
[36] The applicant’s version is a complete denial as regards the fact that the respondent would have first choice to keep the puppy if only one puppy was born and it was a male, yet, he admits in his replying affidavit that the respondent did tell him that she wanted a male puppy from the litter. 9 The lack of any response from the applicant by WhatsApp during 10 October and 13 November, is further compounded by the fact that in the further WhatsApp conversations dated 13 November 2021, he agreed to using Cody to have another litter with a dog called ‘Beetroot’. If this is the case, he must have understood that the respondent would be keeping Ocean. The Whatsapp conversation proceeded as follows:
‘2021/11/13 15:25 – Tania: Beetroot is vandag op hitte. Ek sal graag n Cody werpsel wil doen met haar.
Stel jy belang?
2021/11/13, 15:25 – Willie Wolmerans Durbanville: yes’
Once again, no mention is made that Ocean would not remain with the respondent.
[37] In the matter of Bothma-Batho Transport (Pty) Ltd v S. Bothma & Seuns (Edms) Bpk 10 the Supreme Court of Appeal stated that:
‘Whilst the starting point remains the words of the document which are the only relevant medium through which the parties have expressed the contractual intentions, the process of interpretation does not stop at a perceived literal meaning of those words, but considers them in the light of all relevant and admissible context, including the circumstances in which the document came into being.’ 11
[38] It is clear that the oral agreement did not cater for all the unforeseen consequences of the birth of only one puppy. The sole purpose of mating for the applicant was to obtain a puppy, yet the sole purpose of mating for the respondent was to ensure that the respondent had a healthy male purebred Vizla, with the specific genetic combination which she could use as a stud going forward.
[39] Due to the birth of only one puppy, which was male, the version of the respondent does not appear to raise a fictitious dispute of fact, which is palpably implausible, farfetched, or so clearly untenable that the court is justified in rejecting it merely on the papers. The applicant’s version of what was agreed between him and the respondent, is directly at odds with the version of the respondent.
[40] Considering the unforeseen consequences, as well as the factual disputes, this court cannot on the papers alone determine the true intention of the parties when this oral agreement was reached.
[41] Even if specific performance is justified in the matter in casu, this court still has to
consider whether the motion procedure in obtaining such relief would be appropriate. In my
view, there is a dispute of fact and the motion procedure is not the appropriate forum.
Accordingly, the point in limine is upheld with costs.
ORDER
[42] In the result, I make the following order;
1. The application is dismissed with costs.
__________
D DOSIO
JUDGE OF THE HIGH COURT
This judgment was handed down electronically by circulation to the parties’ representatives via e-mail, by being uploaded to CaseLines and by release to SAFLII. The date and time for hand- down is deemed to be 10h00 on 26 September 2022
Date of hearing: 6 June 2022
Date of Judgment: 26 September 2022
Appearances:
On behalf of the applicant: Adv. JHF Le Roux
Instructed by: DBM Attorneys
On behalf of the respondent: Adv. R. Van Der Merwe
Instructed by: De Villiers & Stenvert Attorneys
1 Room Hire Co (Pty) Ltd v Jeppe Street Mansions Ltd 1949 (3) SA 1155 (T) page 1161
2 National Director of Public Prosecutions v J G Zuma 2009 (2) SA 277 (SCA)
3 Ibid para [26]
4 Transnet Ltd t/a Metrorail v Rail Commuters Action Group 2003 (6) SA 349 (A) at 368C-D and 368G-H
5 Lombaard v Droprop CC and Others 2010 (5) SA 1 (SCA)
6 Ibid page 11
7 Sofiantini v Mould 1956 (4) SA (E) at 154G-H
8 Founding affidavit paragraph 8.22
9 Replying affidavit paragraph 14.5
10 Bothma-Batho Transport (Pty) Ltd v S. Bothma & Seuns (Edms) Bpk 2014 (2) SA 494 SCA
11 Ibid paragraph 2