THE HIGH COURT OF LESOTHO
the matter between:
ESTATE AGENCY (PTY) LTD…..................................................................PLAINTIFF
of Hearing : 1 June and 14 June 2010
of Judgment : 15 July 2010
: MR. ACTING JUSTICE J.D. LYONS
P.V. Tsenoli for Plaintiff
Mpaka for Defendant
The plaintiff company is a real estate agent. The
principal of the plaintiff firm is a Mr. Tlebere. He is, I
there as a real estate agent.
The defendant was, at all material times, the owner of
plot no. 132 – 1008.
In late 2006 the defendant sold plot no. 132-1008 (the
land) to a Mr. Peter Hlutwa for M600,000. The plaintiff’s claim
for agents commission in the sum of M60 000, being commission at
the rate of 10%.
There being no agreement in writing to substantiate the
arrangement the plaintiff relies on, it is to the other evidence that
court must turn its attention.
The trial proceeded by way of witness statements being
treated as evidence in chief with cross examination thereon. I heard
Mr. Tlebere for the plaintiff and Mr. Kou and Mr. Hlutwa for the
There is common cause on the law to be applied. The
plaintiff must show that it was the effective cause of sale. Thus is
a question of fact (re: Wakefield a Sons (PTY) Ltd v
Anderson (1965) 4 SAR 453; Moneywood Pty Ltd v Salamon Nominees Pty.
 HCA 2, 177 ALR 390 url;http://www.austlii.edu.au/au/cases/cth/HCA/2001/2.htmland L.J. Hooker Ltd v W.J Adams Estates pty.ltd (1977)
CLR 52). The agent must prove that he was the causa
causans of the sale.
Gibbs J. (as then was) said in L.J. Hooker Estates that
“(T)he right of an agent to receive commission from his
rests on contract express or implied. It was made clear by
the House of Lords in Luxor (Eastborne) Ltd vs Cooper (1941) AC 108,
that commission contracts “are subject to no peculiar rules or
principles of their own” (per Lord Russell of Killowen
AC, at p124)”.
Mere introduction of the buyer to the vendor is, of
itself, insufficient for the agent to claim commission (see:
per Gummow J at para 83 austlii reference; Burchell
v Gowrie and Blockhouse Collieries Ltd (1910) A.C. 614 at 624, L.J.
Estates (supra) and Moneywood (supra) per Kirby J paras 119 –
127 austlii reference).
Mr. Tlebere and Mr. Kou were neighbours and family
friends. Mr. Hlutwa was a tenant of Mr. Tlebere. Mr. Tlebere and Mr.
previously had discussions over land but it appears it
involved the renovation of their respective properties in preparation
some mooted government acquisition or some such. I was not given
the precise details, but it does seem that this discussion did
relate to the actual sale of any land and that no part of the
discussion led to Mr. Tlebere informing Mr. Kou of his being
as a real estate salesman (albeit as manager) by the plaintiff.
The first matter to be decided is if there was a
contract. If so, its terms must be determined. Then the plaintiff
the court that it performed its obligations under that
I observed the witnesses as to their demeanor. Applying
the appropriate burden of proof (being the balance of probabilities)
weighing all matters carefully, I am drawn to the conclusion that
the defendant’s evidence should be preferred to that of
The defendant said that, whilst he and Mr. Tlebere
discussed his (Mr. Kou) plans to sell the land, at no time did Mr.
Mr. Kou that he was a real estate salesman employed by
the plaintiff. At no time, according to Mr. Kou, was any mention made
a contract or agreement between he and Mr. Tlebere that the
plaintiff would be paid a 10% commission. Mr. Kou asserts that he had
no knowledge of the plaintiff firm or its location. He went looking
for its office after the event and failed to find it.
Mr. Tlebere says that he had discussions with Mr. Kou
about the sale of the land. He says that the terms agreed were that
be paid a 10% commission if he found a buyer.
I reject the evidence of Mr. Tlebere. There are two
inconsistencies in his evidence that compel this.
In his witness statement he says the agreement was
entered into at the plaintiff’s place of business. (exhibit 1
Under cross-examination, though, he said that the
agreement was made whilst he was with Mr. Kou next to the gate of the
property (record p6).
Later in cross-examination, when explaining events after
the sale, he related a discussion between he and Mr.Kou where he said
defendant asked me where is my office.” Mr. Tlebere
says he told him “at Christ House.” (record p.8 –
Mr. Tlebere continued to say,
“What surprised me was that all along he was not
asking me about my office, although he went to Christ House he never
went to my
office instate (sic-instead) he went into Mrs Mphatsoe’s
office” (record p9).
I find this evidence to be inconsistent with
Mr.Tlebere’s evidence that the agreement was concluded at the
office. Had that been the case I would have
expected different evidence from Mr. Tlebere in respect of Mr. Kou’s
as to the whereabouts of his office. Mr. Kou would have known
where the plaintiff’s office was, thus compelling a different
inquiry – or no inquiry at all.
I am not satisfied that any agreement was reached
between the plaintiff and Mr. Kou regarding the sale of the land.
Even if there was an agreement (which I do not find),
the plaintiff did nothing more than a mere introduction of Mr Hlutwa
Mr. Hlutwa’s evidence was that he was a tenant of
Mr. Tlebere. He told Mr. Tlebere in casual conversation that he was
for some land to buy. He did not know Mr. Tlebere was
employed as a real estate salesman. Mr. Tlebere then took Mr. Hlutwa
Mr. Kou. No mention was made of the price. Mr. Tlebere just
introduced Mr. Kou and Mr. Hlutwa and left both of them to sort out
the details. It was not until late in the day (too late, in my view)
that Mr. Tlebere (probably having heard that a deal had been
negotiated) chased up Mr. Hlutwa. He found him at an attorney’s
office in the process of instructing the attorney to prepare
deeds of sale and transfers so as to complete the ‘paperwork’
for the sale. (record page 7). Mr. Tlebere remonstrated
Hlutwa telling him it was his (Mr. Tlebere’s) job to do that as
the agent. On the plaintiff’s own case Mr.
Hlutwa would not
have needed to go to the attorney at that point had Mr. Tlebere done
his part effectively.
In my judgment Mr. Tlebere did nothing more than effect
the merest of introductions of the purchaser (Mr.Hlutwa) to the
Kou). It was only after he may have found out that a
completed sale was in the offering, than he belatedly decided to put
mantle of a real estate salesman and claim a commission. This
is insufficient for him to claim to be the ‘effective cause’
or ‘causa causans’ of the sale.
Considering all of the evidence, I reject the
plaintiff’s evidence in preference to that of the defendant.
That being so, the plaintiff’s case is dismissed
with costs to be taxed if not agreed.
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