KGOPANA V MATLALA (1081/2018) [2019] ZASCA 174 (2 DECEMBER 2019)

/ / 2019, Appeals, Contract Law


The issue in this appeal is whether a text Message constituted an animo contrahendi (an offer, which upon its acceptance, could give rise to an enforceable contract). The court a quo held that it did.  The Appellant, Mr.  Kgopana (“Kgopana”), was granted leave to appeal to the Supreme court of Appeal (“SCA”).

Kgopana paid maintenance to the Respondent, Ms. Matlala (“Matlala”) in respect of their minor child and as per a consent order granted by the Mokopane Maintenance Court in 2003.  During July 2015, Kgopana won R20 814 582.00 in the National Lottery (“Lotto”).  Shortly after the stroke of luck, Kgopana informed Matlala that his health had deteriorated and that he could no longer be employed. He conveyed that he would be entitled to a R600 000.00 pension benefit and proposed that an amount of R100 000.00 be paid to Matlala, in full and final settlement of his duty to maintain their minor child. Matlala was agreeable to the proposal and accordingly arranged a meeting with a maintenance officer at the Maintenance Court.

At the meeting, Matlala conveyed that she was informed Kgopana had won the Lotto.  Kgopana denied this and said that he only received the pension benefits. The maintenance officer held that the parties could not finally determine the maintenance obligations at such time, and the meeting ended. Nevertheless, on 5 January 2016, Kgopana paid R100,000.00 to Matlala and made no further maintenance payments thereafter.

On 20 January 2016, the maintenance officer exhibited Kgopana’s bank statements to Matlala and she accordingly sent Kgopana a message stating that she now knew that he had won the Lotto.  On 21 January 2016, he responded with the following Whatsapp message (“the Message”):
“if I get 20m I can give all my children 1 m and remain with 13m. I will just stay at home and not driving up and down looking for tenders”

On 7 September 2016, Matlala issued summons against Kgopana. She claimed that the Message was an agreement concluded when she accepted the offer in the Message, and therefore claimed that Kgopana was obliged to pay to her for the benefit.

In his plea, Kgopana denied winning the Lotto and denied sending the Message. He however admitted these facts, shortly before trial.  Kgopana pleaded that he had no animus contrahendi (intention to contract) and testified to same, stating that the only reason he sent the Message, was to “get rid of” Matlala.

The court a quo held that the Message’s content was clear and contained an offer with “definite terms”. It held that the contract was made with the necessary animus contrahendi. The court a quo further held that, in line with cases such as Spes Bona Bank Ltd v Portals Water Treatment South Africa (Pty) Ltd 1983 (1) SA 978 (A), that Kgopana was contractually liable in accordance with the Message, regardless of his intent, because Matlala reasonably considered the Message as an offer open for acceptance (doctrine of quasi-mutual assent). The Supreme Court of Appeal did not agree with these findings.

The SCA confirmed that the primary basis of contractual liability in our law is consensus ad idem (meeting of the minds), in accordance with the will theory. In cases of dissensus, the liability may be founded on the doctrine of quasi-mutual assent.  In order to determine if consensus was reached, the court refers to paragraph 31 and 38 of Christie’s Law of Contract in South Africa, 7 ed (2016), which states: “in order to decide whether a contract exists one looks first for the true agreement of two or more parties, and because such agreement can only be revealed by external manifestations one’s approach must of necessity be generally objective.”

The author (paragraph 38) also explains the application of this to the concept of animus contrahendi in these terms:
“…the phrase ‘lack of animus contrahendi’ is appropriate to describe those cases in which, from the circumstances or manner in which the “offer” was made, or both, it is clear to the court and was, or ought to have been, clear to the offeree that the offer was not intended to be taken seriously.”

Thus, the SCA held, the question for determination in this matter is whether, in the context thereof, the Message conveyed an offer animo contrahendi. The SCA held that the context of the Message strongly suggested that Kgopana never intended to agree to part with a portion of his winnings. The terms of the message related to what Kgopana could do in the hypothetical future event of him receiving R20million. The SCA also pointed out that the aforesaid is underlined by the manifestation of Matlala’s intention to accept the offer, in that she never responded to the Message and did not claim immediate payment. Therefore, the SCA held that Kgopana had no intention to contract and the message did not suggest otherwise. Consequently, there is no reason to apply the doctrine of quasi-mutual assent.


The SCA held that the court a quo should have dismissed Matlala’s claim. Consequently, the appeal was upheld, and the claim dismissed.

With regard to the issue of costs, the SCA pointed out that the morally reprehensible conduct of Kgopana contributed to the institution of the proceedings, in the interest of the minor child. It was also not unreasonable of Matlala to defend the judgment in favour of the minor child on appeal and any costs against her would be detrimental to the best interest of the child. Accordingly, the SCA considered it fair and just to make no order as to costs, in the court a quo and the appeal.



The SCA confirmed that the primary basis of contractual liability in our law is consensus adidem (meeting of the minds), in accordance with the will theory. In cases of dissensus, the liability may be founded on the doctrine of quasi-mutual assent. 

Written by Danmari Duguid Checked by Stefan Bezuidenhout

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