INTRODUCTION & BACKGROUND
This matter deals with whether there were a series of agreements for the sale of wine barrels between the parties namely, Vincorp (Pty) Ltd (“the Appellant”) and a Hungarian company, Trust Hungary ZRT (“the Respondent”). In particular, whether there existed the requisite animus contrahendi in respect of both parties.
The Respondent, alleging that it had sold and delivered wine barrels to the Appellant for which payment remained outstanding, caused summons to be issued out of the Western Cape High Court, Cape Town (“the Court a Quo”) against the latter for the recovery of US $112 526 together with interest and costs.
The trial judge dismissed the claim with costs, but granted leave to the respondent to appeal to the full bench of the Court a Quo. The full bench set aside the order of the trial judge and replaced it with one ordering the appellant to pay the sum of US $112 526 together with interest as claimed and costs.
The matter was then brought to the Supreme Court of Appeal (“SCA”) by the Appellant with special leave from the Court a Quo.
The Appellant is in the business of procurement as well as the financing of wine barrel purchases. The Appellant would thus order from the Respondent and facilitate the financing and importing of barrel purchases on behalf of VinCo (Pty) Ltd (“VinCo”), an entity operating under the authority of Mihan Pretorius (“Pretorius”). Since about 2002 the Respondent had been receiving purchase orders from VinCo and payment would be facilitated by the Appellant, upon receipt of the funds from VinCo. The Appellant experienced difficulty with the payment of the Respondent’s invoices since National Treasury required the payer, being the Appellant on behalf of VinCo, to be reflected on the invoice whenever there was to be an expatriation of funds to a foreign country. Mr Pretorius thus requested that the Respondent’s invoice be altered to reflect the details of the Appellant but stressed that the Appellant “acts as a financing company and importing agent on behalf of VinCo”. Thereafter, the Respondent’s invoices were altered to accord with Mr Pretorius’ request.
The mere fact that the Appellant came to be reflected as the purchaser or importer on some of the documents (for the purposes of expatriating funds from its bank account as part of its logistical services to VinCo) in itself did not herald any new legal relationship between it and the Respondent.
Payment terms were agreed between the Respondent and VinCo. Written orders were sent to the Respondent by VinCo. The Respondent then confirmed those orders to VinCo and inserted the name of VinCo and/or Pretorius under the words ‘Customer ID’. The Respondent initially addressed VinCo, not the Appellant, in respect of late payment.
On a proper analysis of the evidence, namely all order documentation, letters and invoices, did not disclose any conduct on the part of the Appellant that could have caused the Respondent to labour under the genuine misapprehension that the Appellant was anything other than VinCo’s importing and logistical agent.
The SCA held that the Respondent had failed to discharge the onus of establishing the necessary animus contrahendi on the part of both parties. That ought to have been the end of the matter. Although not pleaded, the SCA looked at estoppel and quasi mutual assent, with a short explanation of each, and ruled that even if they had been pleaded by the Respondent the claim would have failed, in light of the factual findings by the court.
The Appeal was upheld with costs.
In the absence of a clear written agreement and subject to surrounding circumstances and transactional documentation, plaintiffs need to establish the existence of the requisite animus contrahendi in respect of a defendant that they are suing ex contractu, especially in instances where the said defendant was performing in concert with another entity/person who (based on the circumstances) was not party to the agreement.
Written by Ntobeko Maphanga and Musa Mathebula