HIGH COURT OF LESOTHO
TANK INDUSTRIES (PTY) LTD APPLICANT
REYNOLDS NO. 1ST RESPONDENT
CLYDE HARLEY NO. 2ND RESPONDENT
MICHAEL JAMES ORGANISATION CC. 3RD RESPONDEN
by the honourabele Mr Justice WCM Maoutu on the 10th day of April
11th August 1999, applicant brought the following application:
" 1. The 1st 2nd and 3rd Respondents are ordered to hand to the
Applicant the goods auctioned as items:
and 71 on the auction held by the 3rd Respondents on instruction of
the 1st and 2nd Respondents on the 21st of July 1999 at Mafeteng,
Maseru in the insolvent of Highveld Ceramics (Pty) ltd (in
liquidation) against payment by Applicant of the sum of R101,300.00
plus 14% VAT.
1st and 2nd Respondents are ordered to pay the costs of the
Application jointly and severally, one paying the other to be
and/or alternative relief.
was governed by conditions that were spelt out in the auction
catalogue. This sale was to be held at Mafeteng on the 21st July 1999
at 10.30 a.m. It seems from the
that the sale was held, but it might not have been in Mafeteng but
somewhere in Lesotho. This fact does not seem to be of importance.
What is not denied is that the sale proceeded but it was stopped
after applicant had bought some of the auctioned goods.
says respondents cancelled the sale (over the objections of
applicants) and refunded deposits to the bidders. Respondents. says
it proposed to the bidders that the sale be cancelled and it war
cancelled. It is nor true (according to respondent) that applicant
ever objected. The following day applicant tendered payment by letter
and demanded the goods it had purchased.
that are being claimed in this application were part of the goods
that had been offered for sale. There is no dispute these goods had
been knocked down in favour of the applicant as the highest bidder by
the auctioneer. There is no dispute that applicant had been ready to
pay the R101 300-00 plus VAT or Sales Tax and take charge of the
goods when the sale was cancelled. 1 specifically asked Mr Fisher
whether it was respondent's case that applicant failed to pay for the
goods immediately after the sale and he said no.
some dispute of what happened. Respondents say applicant agreed to
the cancellation of the sale, while applicant says it did not.
Applicant says it objected to respondent cancellation of the sale
while respondents say applicant never raised any objection and
accepted respondents cancellation of the sale and waived his rights
to the goods.
applicant claims the goods that he has bought at an auction. The
conditions of the sale were the following:
Auctioneer's sole obligation and responsibility shall be to exhibit
goods placed with him and solicit offers or bids in respect thereof
in such manner and at such times as the Auctioneer may determine in
his sole and unfettered discretion.
the Auctioneer accepts any bid or offer, he in doing so, merely
communicates the acceptance of the Seller and incucs no contraciual
obligation or liability on his own behali.
Auctioneer does not make any warranty or representation in respect
of any lot or part thereof. All sales are "Voetstoots" and
all rights flowing from any breach of contract or delict shall be
exercised directly between the Seller and the Purchaser.
contents of any advertisement, catalogue or other promotional
material issued in respect of any lot or part thereof is not
warranted and no bid shall be made or accepted other than in terms
Auctioneer reserves the right to regulate the bidding and to
withdraw, alter or vary any lot or parts thereof or vary the order
the highest bid is for an amount of less than the reserve or minimum
price placed on any lot, the highest bidder shall be declared the
any dispute arise either during the bidding or thereafter the
Auctioneer shall in his sole and unfettered discretion be entitled
to put the lot or lots up again for auction or declare any of the
disputing parties to be the Purchaser without prejudice to any claim
which the Auctioneer or Seller shall have for damages.
Auctioneer's decision shall at all times be final.
in and to any lot shall pass to the Purchaser thereof at the fall of
in and to any lot shall pass to the purchaser thereof when the
purchase price and all other amounts payable have been paid in full
notwithstanding that delivery or removal of any article sold has
for any lot purchased shall be made by way of cash or bank
guaranteed cheque immediately upon the conclusion of the sale.
Should payment not be so made the Auctioneer shall in his sole and
unfettered discretion be entitled to summarily cancel the sale
without prejudice to any claim which the Auctioneer or Seller shall
have for damages.
R500 fee, payable in advance will be levied on any sale concluded
where the Purchaser requires his invoice to be made out to a
Financial Institution and payment is not received upon the
conclusion of the sale.
bids are exclusive of VAT and where applicable, VAT will be
added at the current rate to the Purchaser's invoice.
Auctioneer's Vendue Roll or any certificate purporting to be signed
by the Auctioneer shall be final and binding and shall be conclusive
proof of anything contained therein for the purposes of litigation,
provisional sentence, summary or default judgements.
the Auctioneer or any employee or associate is requested to bid or
make any offer by a Buyer such bid or offer will at all times be
made subject to the provisions hereof.
Purchaser chooses as his domicilium citandi et executandi, the
address given by him on the Buyer's card.
the Seller or the Auctioneer shall be entitled to institute action
against the Purchaser in any Magistrate's Court having jurisdiction
over the Purchaser notwithstanding that the amount in dispute may
exceed the jurisdiction of the Magistrate's Court and the Purchaser
consents to the jurisdiction of the Magistrate's Court accordingly
Not with standing the aforegoing the Selter or the auctioneer shall
be entitled to institute action in the Supreme Court of South Africa
and the parties hereto consent to the jurisdiction of the Supreme
Court of South Africa (Witwatersrand Local Division)
the Seller or the Auctioneer institute actions against the Buyer
arising out of this agreement any costs which may be awarded against
the Purchaser shall be calculated on the scale as between Attorney
and own client.
conditions of sale form the sole basis on which the parties transact
and no variation, alteration, novation, cancellation of this
agreement of any of the terms hereof shall be of any force of effect
reduced to writing and signed by all the parties concerned."
not is disputed is that the sale was cancelled after the goods that
are being claimed had been bought by the applicant. The respondent's
reason was that the goods had been bought too cheaply. The applicant
claims respondents acted unilaterally and high handedly in cancelling
the sale. Respondents say after they had cancelled the sale, they
persuaded applicant to agree to the cancellation, and applicant was
persuaded. Applicant (according to respondents) cannot be heard to
say he is still entitled to the goods.
pause here to observe that as Carlisle J said in Shandel & Jacobs
& Another 1949(1) SA 320 at 321 "all conditions of sale form
a contractual relationship between the auctioneer and the bidding
public". I believe, it is precisely for that reason that Mr
Fisher for respondent could not argue against any of the conditions
of sale. It is also trite law that, the sale at a public auction is
concluded at the fall of the hammer Nicolau. v Navarone Investments
(Pty)Ltd 1971(3) SA 883 at page 884H. It seems to me that as
respondent's counsel conceded, the sale had been complete. His
defence is therefore on other grounds.
Fischer who appeared for applicant argues that respondent waived his
claim to the goods. Mr Ebberson argues that he never did so.
Applicant (according to his affidavits) never left respondents in
doubt that he was not surrendering the goods that he had bought at a
bargain price. Applicant says he left respondents in no doubt that
applicant was breaching the contract in terms of which applicant had
bought the goods.
agreement the issues in its case were crisply put to me as follows:-
must succeed unless:
sale was lawfully cancelled, and
had by law waived his rights.
directed Mr Fischer for respondent to be the first to argue as soon
as Mr Ebberson for applicant had finished outlining the issues. Mr
Fischer had no objection. As his argument proceeded it soon became
clear that the sale and the rights of applicant to the goods claimed
could normally not have been open to challenge. Respondent's defence
could neatly be summarised as that of waiver. Applicant, it was
argued, had by conduct agreed to the cancellation of the sale and
thereby waived his rights. In other words respondents knew they could
not lawfully cancel the sale unless applicant agreed. Applicant
agreed according to Mr. Fischer.
therefore to determine this central issue on the papers as neither of
the parties applied for viva voce evidence to be heard. It_is:true
that they rec ognised that if the court wanted to hear viva voce
evidence; they would have to accept the courts decision. The court
will only feel it has to hear viva voce evidence if there is a
compelling reason to do so.
who goes to an auction normally has very few rights beyond what he is
given by the conditions of sale. Indeed in Volume I of the Dictionary
of Legal Words and Phrases by Classen at page 154 there is the
following quotation from Grotius Introduction 3-14-30:-
"In sales by public auction each bidder is bound by his bid, and
he acquires no right if others bid higher."
already observed that all conditions of sale form a contractual
relationship between the auctioneer and the bidding public. If this
is the correct position I am bound not to agree with Mr Ebberson's
submission that there was ever a written contract which could exclude
evidence from the parties. There was nothing however, to stop the
parties from converting an oral contract into a written one if they
so desired. Consequently Coertzee J in Ex Parte Kramer 1973(4) SA 163
at 167 G.H. said:
"Whilst it seems beyond doubt that an oral contract results at
the fall of the hammer, I cannot see why that oral contract should
not therefore be capable of being turned into one "made in
writing" ....But once parties have in fact reduced the agreement
to writing, the document is, in general, regarded as conclusive as to
the terms of their transaction which it was intended to record...."
Kramer does not apply to the facts of this case, but clause 19
remains as Mr Ebberson said an important part of the auction sale.
being the position, there can be no doubt that Clause 19 of the
conditions of sale applies to this sale although the actual sale and
the fall of the hammer constitute an oral contract. In other words
the written conditions are the rules governing the sale and are
written, while the sale itself was conducted and concluded orally.
Therefore among the onuses respondents have to bear is that of
overcoming Clause 19 of the conditions of sale which provides:
"These conditions of sale form the sole basis on which the
parties transact—and no variation, alteration, novation,
cancellation of this agreement—or any terms hereof shall be of
any force or effect unless reduced to writing and signed by all
condition that was intended to protect the interest of the auctioneer
and its principals should also apply to those of the purchaser. The
auctioneer had the right to put a reserve price and to stop the sale
at any time during the sale.
to me that in all auction sales the possibility of disputes is an
ever present danger because the most material portions of the sale
are done verbally. The dispute that is now before me is by no means
unusual or unexpected. It is not surprising that clause 19 was put
into the conditions of sales to help when problems such as this one
arises. It was for Mr Fischer to persuade me that there were special
reasons or grounds for avoiding the operation of clause 19 of the
conditions of sale.
I will go
over his arguments as I understood them.
sale cancelled with applicant's acquiescence?
in respect of the goods for which bidding had not commenced is not in
issue. I will not (nor anrexpected to) deal with the sale in respect
of those goods. If I understood the parties well, there was no
dispute that the goods that applicant claims had been bought by
applicant as there was no reserve price and he was the highest
It is not
surprising that both parties agree that a sale had taken place. The
four operative clauses of the conditions of sale are the following:
"5. The auctioneer reserves the right to regulate the bidding
and to withdraw, alter or vary any lots or parts thereof or vary the
order of the same.
"6. Unless the highest bid is for an amount less than the
reserve or minimum price placed on any lot, the highest bidder shall
be declared the purchaser.
The auctioneer's decision shall be at all times final.
"9. Risk in and to any lot shall pass to the purchaser thereof
at the fall of the hammer."
facts admitted there can be no doubt finality had been reached. There
were no disputes that could lead to any reconvening of the sale in
terms of clause 7 of the conditions of sale. The auctioneer never
altered the ground rules within the meaning of clause 5 of the
conditions of sale. The auctioneer also never placed a minimum or
reserve price. The goods were duly sold to applicant who was declared
purchaser of the goods at the fall of the hammer.
problem which was no problem to Mr Fischer was whether the purchase
price should not have been paid or tendered there and then in terms
of clause 10. Mr Fisher said 1 could not visit failure to pay on
applicant having regard to what subsequently happened after the
hammer had fallen in favour of applicant. It was respondents who
decided to cancel the sale and return the deposits that applicant and
others had paid in order to participate in the sale. That being the
case Mr Fischer said he would not go so far as to say applicant
should be found to be in breach of clause 10. He could only be said
to have acquiesced in the cancellation in accepting his deposit.
considerable difficulty with respondent's main deponent Mr Phillip
claimed to have acted in the creditors interests and those of the
insolvent throughout. If he was there in the hall there is no
evidence of that, because he never placed a reserve price as he was
entitled to do. He seems suddenly out of the blue to have decided it
was best if the plant should be sold to a single purchaser. This he
could get the auctioneer to do in terms of clause 6 and that is not
in issue. What is the bone of contention is what had already been
sold. Mr Reynolds put what happened as follows:
62 At a point in time, I realised that the prices that were being
obtained at the auction were far below the market-related value for
the insolvent estate assets, essentially a ceramic plant ("the
plant"). The plant was estimated to have a realisable sale value
of R6 million. In the circumstances, it was clear to me that the
auction was not in the best interests of the creditors and the
insolvent estate, whose interests I am obliged at all times to
"63 At that time I was and still of opinion, that selling the
plant to a single purchaser in its entirety will best protect the
creditors interests. I was however prepared to sell certain assets,
not deemed to be part of the plant."
Reynolds then goes on to show that when these ideas occurred to him,
he called on Mr Tony Muller who was the auctioneer and put his views
to him. He then requested Mr Muller to inform the bidders and explain
the intention to cancel the sale so that a suitable purchaser of the
assets could be sought. Mr. Harley and Mr Muller supported his
request. Mr Reynolds says he realised that if any of the bidders
objected, he would have to reconsider the intention to cancel the
sale. Each bidder was to be refunded his deposit.
Reynolds does not say clearly whether he was present when Muller the
auctioneer talked to the successful bidders including Mc Gregor who
acted for applicant All he can say is that Mac Gregor did not object
to him or to any of the respondents. Mac Gregor accepted the
arrangement and collected his deposit and left. The arrangement ha(
been that if no suitable purchaser could be found, the goods
purchased would be offered to them again by telephone.
to me that the person in charge of the auction sale was Mr Tony
Muller as more fully appears in paragraph 13 of the affidavit of Mc
Gregor, the main deponent of applicant. This auctioneer had clearly
and unequivocally said there was to be no reserve price and this is
not denied. The sale went without any hitches until "there were
no bids for certain items. When this happened, the auctioneer stopped
auction and informed the bidders that he had to consult with joint
liquidators namely first and second respondents who were present at
the auction. See paragraph 17 of Mc Gregorys affidavit. This fact is
admitted in the affidavit of Reynolds at paragraph 51. In other words
the sak was stopped and consultations with other liquidators took
place because there were no more bids. It cannot therefore be correct
that Reynolds of his own volition called Muller in order to put his
fresh ideas to him.
Reynolds says he was in the hall throughout, it seems he was prepared
to let the sale proceed as it was proceeding. He vaguely says "he
realised at a point in time" that things were not going well,
the goods were going for a song. Why he chooses to be so vague, I
cannot say. I find him not being frank at all. It seems he
deliberately left the lots to be acquired for very low prices while
he was in the hall watching. When the rest of the goods were not
being bought, he decided on the cancellation of the sale. He was
entitled to cancel the sale in respect to unsold goods. No one seems
to question that. He does not
he had allowed what was saleable to be bought, but got concerned when
he realised that what was left of the plant was unsaleable.
of proof is on the respondents and they are very evasive, cagey and
vague about what really transpired. What I have to determine is
whether in the skeletal way they have proved that the applicant did
waive its rights.
respondents' favour is the fact that applicant accepted his deposit
back. This deposit had been paid on the terms which appear at page 1
of the auction catalogue, which
A deposit of R5000 or equivalent Maluti to be made by way of cash or
bank guaranteed cheque on registration, refundable if no purchases
according to Wille Principles of South African Law 8th Edition "is
a contract whereby one person delivers to another a thing for safe
keeping on the understanding that it be returned on demand". The
holding of applicants deposit has a significance that is far from
clear. In any event applicant never demanded his deposit, it was
offered to him. It would seem that when applicant accepted his
deposit back, it could be deemed to have made no purchases. Could it
be that when applicant accepted its cheque back, it was indeed
waiving its right to the purchased goods? It would seem that
applicant was expected to add to his M5 000.00 if he bought for more
than that amount. If he bought for less, the balance would be
refunded. That being the case nothing much turns on the acceptance of
the deposit that was tendered to applicant by the respondents.
have a formidable task of persuading the court that a bargain hunter
of the type that attends public auctions could readily forgo a
bargain that he has got out of kindness to creditors or an insolvent.
It is most unusual for businessmen to surrender a financial advantage
without getting anything in return. What is even more unusual (as
Reynolds for respondents alleges) is that applicant could have not
have protested at a cancellation of a sale that had the effect of
denying him the goods he had bought for a bargain price. Applicant
denies he did not protest. Indeed respondents say they expected
applicant and other successful bidders to protest. They do not
suggest that they made any inducement that could make a reasonable
man to forgo or surrender the goods that had already been bought.
As I have
already pointed out, it is unlikely that the successful bidders could
not protest when a sale which was highly favourable to them was being
cancelled. I am alive to the fact that the most improbable stories
can be true.
says after making his position clear that a valid agreement of sale
had been concluded it withdrew from the conversation that was taking
place, collected the deposit cheque and left. The following day, it
embarked on a course that has culminated in these proceedings. Except
for steps taken towards litigation, respondents deny applicant's
founding affidavit, the applicant insists that Muller the auctioneer
went outside to discuss (with his colleagues who were in the
background) the best way forward after bidders were no more bidding
for the rest of the items that had been offered for sale. In the
replying affidavit of applicant nothing is still said about Reynolds.
It is Muller who is said to have done the talking. This is consistent
with applicant's averments in the
affidavit. Indeed in terms of the conditions of sale, Muller is the
only person who really matters. I find Muller's failure to make a
full affidavit illogical. Muller the auctioneer only made a
confirmatory affidavit of averments of Reynolds who was not an
official at the sale but a virtual bystander or a backroom operator.
Even Reynolds at paragraph 6 of his affidavit confirms that Muller
did the talking, he only made known to Muller his views and ideas
that were contrary to how the sale was being run. Reynolds confirms
that it was Muller who faced and talked to the bidders.
did not really make an affidavit as I believe he ought to have done
so in the circumstances of the case. His short confirmatory affidavit
" 1. I am an adult male auctioneer. At all material times
hereto, I was the auctioneer in charge of the auction sale held on 21
July 1999 and at Mafeteng Lesotho.
"2. I have read the aftidavit of Phillip Wardel Moorress
Reynolds to which this affidavit is annexed. I confirm the contents
of that affidavit to be true and correct in so far as it relates to
sense dictates that it should have been Muller who made the main
affidavit because (as he was and as he rightly states) "at all
material times I was the auctioneer in charge of the auction sale
held on 21 July 1999 and at Mafeteng Lesotho". In other words,
Reynolds had no legal role to play at the sale.
Fischer submitted that it was standard practice for one deponent to
make an affidavit on behalf of others and the others merely to
confirm what that deponent had said.
an affidavit confirming facts from one deponent is appropriate
depends on circumstances of a particular case—this to me seems
obvious. Tedious repetition has to be avoided in all litigation where
it can be avoided. But a court should not be deprived of the evidence
it needs by this procedure. In this case Reynolds is not always clear
and forthcoming about where he was when certain things were done or
said. He has gone to great length about irrelevancies such as what he
felt or thought was the best way the sale should have been conducted.
He does not even say (if at all he was there) why he let the sale go
on (in this manner that was prejudicial to creditors) until it got to
a stage where there were no more bids and part of the plant was going
to be unsold. Reynolds is also not specific about where he was when
Muller relayed their decision to the successful purchasers except
saying all the talking with bidders was in the hall. The court is
being persuaded to assume from his ambiguous affidavit that he heard
everything that was said and done. This is a problem that respondents
created for themselves when they avoided making the main respondents'
affidavit to be that of Muller who was the auctioneer. All sides
agree that Muller did the talking and was present throughout
Applicant says Reynolds was consulted outside the hall along with
others who were interested in the sale in liquidation.
impression I got from Mr Fischer was that it is now the accepted
practice for the main deponent to make averments which may even be
hearsay, and then get the witnesses who have actual knowledge of the
facts to merely confirm the main deponents averments. If such a
practice has grown, it is unfortunate, because it is wrong. In
application proceedings, pleading and evidence are rolled into one.
The growing and extensive use of application was never intended to
cut comers in an attempt to save time. Courts still have to be given
evidence of good quality in order to decide cases brought on motion.
Hearsay is and will remain hearsay. The properway is for the main
facts within his knowledge and give an indication of what witnesses
who know and have witnessed events are going to say but let them give
the evidence in their supporting affidavits. Any other way is legally
untenable, and I genuinely believe is based on a misunderstanding.
Herbstein and Van Winsen The Civil Practice of the Superior Courts of
South Africa 3rd Edition page 79, what is expected in application
proceedings was neatly stated in the following words:
"In application proceedings the affidavits constitute not only
the evidence but also the pleadings and therefore while it is not
necessary that the affidavits "should set out a formal
declaration, or a replying affidavit set out a formal plea, these
documents should contain, in the evidence they set out, all that
would be necessary at the trial."
at a trial, the main witness never just says in court that he
confirms what has been said by other-witnesses and sits down: In
Wigmore On Evidence (1360-1684) Volume V Chardbourn Revision at page
85 referring to Welsh v Rogers 54 US 283, 287 it is said of
"Testimony thus taken is open to great abuse. At best it is
calculated to elicit only such a partial statement of the truth as
may have the effect of entire falsehood. The person who prepare the
witness and examine him can generally have just so much or so little
of the truth, or such version of it as will suit his case."
Wigmore has said is perpetually true. Consequently, although motion
proceedings and affidavits are being increasingly been used, we have
to guard against abuses of this procedure that is bound to grow with
its increasing use. Unfortunately mistakes of this
may creep into some text books.
as Herbstein & Van Winsen in The Civil Practice of the Supreme
Court of South Africa 4th Edition at page 369 have put it "it
may be necessary to file affidavits of persons other than applicant
who can depose to the facts". This statement of the law is
unassailable. But then the learned author adds the following words
which have created a misunderstanding because of their ambiguity:
"Alternatively, when a deponent includes in his affidavit facts
in respect of which he does not have first-hand knowledge he may
annex a verifying affidavit by a person who does have knowledge of
verifying affidavit means an affidavit of a person who can and does
in fact depose to the facts, then it is correct. But if these words
mean the court may be given pages and pages of hearsay by the party's
main deponent, and a person who has knowledge of the facts can merely
file an affidaivt saying "I confirm the contents of that
affidavir to be true and correct in so far as it relates to me",
then the learned authors of Herbstein and Van Winsen The Civil
Practice of The Supreme Court of South Africa have not quite hit the
nail on the head. The practice is only meant to avoid unnecessary
repetition, but not to deprive courts of first hand evidence.
already said Reynolds has not actually said that he actually heard
and saw what occurred between Muller (the auctioneer) and the
bidders, he has left this equivocal. He has not stated in uncertain
terms that he saw and heard what transpired. It can be argued that he
should have seen or heard what transpired. He is contradicted by
applicant. The court always wishes to be given the best evidence that
is available, lest it smells a rat. We frequently hear of what is
called the best evidence rule. The case of
v Williams 1977(2) SA 692 deals with best evidence rule as a legal
concept. In this case I have in mind the quality of evidence as a
fact. The way evidence is evaluated is conditioned by the particular
facts of a case although the evidence of Reynolds is legally
acceptable. It is not the best evidence available on what happened at
the sale. I am nevertheless attracted by the following words from
King AJ at 497 of Germenskapsontwinkkelingsran v Williams:
"The best evidence rule was that a party must always produce the
best evidence of a fact available to him and evidence which itself
suggested the existence of better evidence of that evidence is
inadmissible. The latter class of evidence is called secondary
times the term "best evidence" is seen as misleading.
Evidence is often admissible although it is recognised that evidence
of an even better quality exists. Such evidence may be in many
respects first hand. If the evidence of a person who really knows the
facts best is not adduced, it leaves many unanswered questions,
especially where~a witness like Reynolds contradict a main player
like the applicant. Mullet is accepted by all sides to have been the
respondents' decision maker who did all the talkings yet it is
Reynolds who is respondent's sole deponent to the facts that should
be deposed to by the auctioneer. How does a bystander come to give
evidence, and the chief official at the auction merely say "I
confirm"? In such cases it was said in Northern Mounted Rifles v
O 'Callaghan 1909 T.S. 174 that the best evidence must emanate from a
public officer. "It must have been made by a public officer in
the execution of his public duty, it must be intended for public use,
and the public must have access to it". The approach in Northern
Mounted Rifles v O 'Callaghan was technical and it dealt with a
licence while mine is about the approach I should follow in assessing
the weight to be attached to evidence that I am supposed to believe.
reading of Phipson On Evidence 9th Edition at page 51 is correct, the
best evidence rule means that "the evidence must be given of
which the nature of the case permits" this rule provides very
little practical guidance. At page 53 it was concluded that:
"In the present day, then, it is not true that the best evidence
must, or even may, always be given, though its non-production may be
a matter for comment or affect the weight of that which is produced.
All evidence is in general equally receivable."
problem I have with Reynolds averrments are quality rather than
receivability. Muller's evidence as auctioneer would have been much
more weighty and proper in the circumstances. For Muller to confirm
in less than two sentences the evidence of a less weighty quality
such as Reynolds' and deny us of his own weighty one has not been
particularly helpful. There is no compelling reason for Mutter's
failure to make the main affidavit for respondents since his
affidavit was sworn to on the 10th September 1999 when that of
Reynolds was sworn to on the 9th September 1999. This was almost 30
days after the filing of the application. If then the auctioneer had
such a substantial period at his disposal, why does he not tell us
what happened himself?
Fischer for respondent nailed his colours to the mast of waiver. He
displayed a consciousness of the fact that cancellation of contract
might not be his strongest point. A litigant is said to have waived a
right, and thereby lose it, if he declines to take advantage of it.
De villiers CJ in Stewart v Ryall 5 SC 146 at page 153 said a waiver
amounts to "a renunciation of a right, and such renunciation
cannot be inferred except from clear evidence. "But waiver is a
form of contract and it is necessary there should be an
to waive" —Roodepoort-Maraisburg Town Council v Eastern
Properties (Pty) Ltd. 1933 WLD 224 at 226. It follows therefore that
waiver must be an intentional act to waive a right. In this case it
was the respondents through the auctioneer (Muller) who decided to
cancel the contract of a sale of goods that applicant had already
bought. Indeed there was no action that could be deemed to have
originated from applicant that could be deemed to be a renunciation
of applicant's rights to the goods. At the worst, applicant could be
said to have acquiesced. For acquiescence to be inferred clear
evidence has to exist. In Collen v Rietfontein Engineering Works
1948(1) SA 413 at 421 -22 Watermeyer CJ said of acquiescence and the
problems it might cause:-
"...because conduct to constitute an acceptance must be an
unequivocal indication of the other party of such acceptance....
Quiescence is not necessarily acquiescence and one party cannot,
without the assent of the other, impose a condition to that effect."
normally pleaded as estoppel. When it is pleaded, it is grounded in
surrounding facts that make an inference of personal bar, compelling.
Very often among-the grounds is that of delay in enforcing rights,
which has ted to the other side acting to its own prejudice. Waiver
is also often backed up by existing commercial practice. In this case
the practice in auction sales is against respondents. People do not
go to such sales to surrender the bargains they have got. In Collen v
Rutherford Rietfontein Engineering (supra) at 436 Centlivres JA
referring to Laws v Rutherford 1924 AD 261 said:-
"...that the onus of proving waiver is strictly on the party
alleging it and he must show that the other party in the full
knowledge of his right decided to abandon it, whether expressly or by
conduct plainly inconsistent with an intention to enforce it."
therefore this onus that is on the shoulders of the respondents.
Fischer concedes in his Heads of Argument that the respondents
initial defence was not waiver. He argues that it follows as a matter
of course from respondents defence. My reading of Hilsage Investments
(Pty) Ltd v National Exposition (Pty) Ltd 1974(3) SA 346 is that the
party in whose favour a benefit was put in a contract can waive it.
In this case this court is entitled to infer that, even if applicant
never said a word, in view of clause 19 of the conditions of sale,
applicant was protected, and need not have bothered to argue with
respondent. This is particularly so because Reynolds does not say how
he came to the conclusion that applicant had agreed to the
cancellation. Reynolds merely confines himself to a denial that
applicant objected and a bare allegation that bidders agreed to a
cancellation. If indeed applicant had, respondents who were aware of
clause 19 of the conditions of sale, should have insisted that the
cancellation should be in writing in order to be of any legal
clause 19 of the conditions of sale did not exist, I still think
respondents have not discharged their onus on the balance of
probabilities. Steyn CJ in Hepner v Roodepoort-Maraisburg Town
Council 1962(4) SR 772 at 778 DE put what is expected of respondents
in a case such as this one as follows "...in the case of waiver
by conduct, the conduct must leave no reasonable doubt as to the
intention of surrendering the rights in issue". Very often even
in business transactions, an express waiver can be withdrawn if the
litigant decides within reasonable time in circumstances in which the
other side has not acted to its detriment because of the waiver. In
such cases Lord Denning MR in WJ Alan & Co Ltd v El Nasr Export &
Import Co.  2 All ER 127 at 140 C observed:
"But there are cases where no withdrawal is possible. It may be
too late to withdraw; or it cannot be done without injustice to the
other party. In that event he is bound by his waiver."
case before me not only is the circumstantial evidence on waiver
weak, it seems to be the applicant (if respondents' submission holds)
alone who has gratuitously acted to its prejudice on no reasonably
am not persuaded on the evidence that applicant did not object. Even
i he had not said a word applicant was bound to succeed having regard
to clause 19 of the conditions of sale. I therefore grant applicant's
1st, 2nd and 3rd Respondents are ordered to hand to the Applicant
the goods auctioned as items:
and 71 on the auction held by the 3rd Respondents on instruction of
the 1st and 2nd Respondents on the 21st of July 1999 at Mafeteng,
Maseru in the insolvent of Highveld Ceramics (Pty) Ltd-(in
liquidation) agamst payment by Applicant of the sum of R101,300.00
plus 14% VAT.
applicant : Mr Ebberson
respondent: Mr Fischer
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