I

IN THE HIGH COURT OF SOUTH AFRICA

NORTH GAUTENG, PRETORIA

(1) REPORTABLE: >/la/ NO (2) OF INTEREST TO OTHER JUDGES: YES/NO (3) REVISED.

~3..A:r.td.'.1 .. 0 I cf DATE

In the matter between:

ABSA BANK LIMITED

and

GERHARDUSBARTHLOMEUSBOTHA

BELINDE BOTHA N.O

GERHARDUSBARTHLO:tvffiUSBOTHA

JUDGMENT

MOLOPA-SETHOSA J

d--3 / 4 / , 't, CASE NO: 39228/2012

Plaintiff

First Defendant

Second Defendant

First Defendant

2

[l] The plaintiff instituted proceedings on 6 July 2012against the

defendants jointly and severally, claiming payment of an amount of

R3 989 748.68, being an amount lent and advanced, as well as agreed

debits charged by the plaintiff to Gerhard Botha Trust ("the Trust") in

respect of two written mortgage loan agreements concluded between the

plaintiff and the trust duly represented by the first and second defendants

as trustees of the trust.

[2] The first and second defendants are sued in their capacities as

trustees of the trust. The third defendant is sued in his capacity as surety

and co-principal debtor for the indebtedness of the first and second

defendants to the plaintiff.

[3] The defendants defended the action and filed a plea to the

plaintiffs declaration on or about 2 July 2014, which was subsequently

amended during September 2016 to include a plea of compromise and

estoppel.

[ 4] At the hearing of the matter the parties informed the court that they

have agreed that there should be a separation of issues in terms of Rule 33

( 4) of the Uniform Rules of Court. By agreement between the parties an

order was granted marked 'XY' in terms whereof the issues and questions

of compromise and estoppel raised by the defendants in its amended plea

would be decided separately from other issues and questions. All other

proceedings were stayed until the issues and questions of compromise

and estoppel have been disposed of. The matter thus proceeded only on

the issues of compromise and estoppel.

-3

[ 5] The defence of compromise raised by the defendants is based on

letters (correspondence) exchanged between the defendants' and

plaintiff's attorneys, in particular the letter dated 23 October 2015 from

the plaintiffs attorneys to the defendants ' attorneys. In this regard the

defendants pleaded as follows in the amended plea:

"COMPROMISE

16.1 Over and above what is pleaded herein supra the

Defendants plead that:

16.1.1

16.1.2

16.1.3

16.1.4

On 23 October 2015, the Plaintiff herein

represented by its attorneys of record and the

Defendants, represented by their attorneys of

record conducted (sic) a written settlement

agreement.

On 7 October 2015 the Defendants made a

written settlement proposal in writing (sic) to

the Plaintiff.

On 23 October 2015 the Plaintiff accepted the

settlement proposal in writing.

On 23 October 2015 the parties settled the

dispute which is the subject matter of the

present claim.

4

16. 2 The Defendants further plead that the agreement was

reached as follows: flt will be noted that some of the numbering

below is incorrect but the numbers are quoted verbatim]

16.1.1

16.1.2

16.1.3

On 21 September 2015 the legal representatives of the

parties held a pre-trial conference at the office of the

Plaintiff's legal representatives.

During the pre-trial, settlement discussions took place

and the Plaintiff's legal representatives made

settlement proposals. The settlement proposals was

(sic) that:

16.1.2.1

16.2.6.2

16.2.6.3

The first and Second Defendants will sign

the documentation required to transfer

all their rights to the property known as

ERF 86 Florauna Township, held by deed

Tl 52439/05 to the Plaintiff;

The Third Defendant will make a

declaration of his assets and liabilities to

the Plaintiff;

Should the parties settle the matter, the

matter will be removed from the roll.

The legal representatives of the Plaintiff then

afforded the Defendants (sic) legal representatives the

16.2.4

16.2.5

16.2.6

5

opportunity to obtain instructions of the proposals

that was made at the pre-trial.

On 28 September 2015 the Defendants advised the

Plaintiff that the Defendants accepted the settlement -

proposals as made by the legal representatives of

Plaintiff and made an offer of settlement in terms

thereof

The Plaintiff's legal representatives then requested the

Defendant's legal representatives telephonically to

reduce the terms of the settlement agreement to

writing and to forward it to the Plaintiff's legal

representatives.

The Defendants legal representatives then addressed a

letter to the Plaintiff's legal representatives on 7

October 2015 wherein the offer to settle the matter

was reduced to writing. The terms of the offer to settle

is as follows: (sic)

16.2.6.1 The First and Second Defendants will

sign the documentation required to

transfer all their rights to the property

known as ERF 86 Florauna Township,

held by deed Tl 52439/05 Plaintiff;

16.2.7

16.2.8

16.2.9

16.2.6.2

16.2.6.3

6

The Third Defendant will make a

declaration of his assets and liabilities to

the Plaintiff;

Should the settle (sic) the matter, the

matter will be removed from the roll.

On the 21st of October 2015 the Defendants rejected a

counter offer made by the Plaintiff.

On 23 October 2015 the Plaintiff addressed a letter to

the Defendants wherein it was confirmed that the offer

that was made on 7 October 2015 by the Defendants

was accepted by the Plaintiff.

The Plaintiff then reneged on the settlement

agreement on 29 October 2015.

16.3 It is pleaded that the parties reached a settlement on the 23rd

of October 2015 when the offer made by the Defendants was

accepted in writing by the Plaintiff.

16. 5 It therefore pleaded that the parties reached a compromise

and as such the Plaintiff can not proceed on the original

cause of action as alleged by the Plaintiff. " (Sic)

[ 6] The defendants contend that on the basis of the facts set out

hereabove a compromise was reached between the parties. The nub of the

7

defendants ' case on compromise is what is contained specifically in par.

2.4 of the letter from the plaintiffs attorneys dated 23 October 2015, in

which, amongst others, the following is stated:

"1. The above matter as well as the telephonic conversation between

yourself and writer hereof on the 21 st of October 2015 refer. (sic)

2. We wish to place the following on record:

2.1. On the i h of October 2015 a settlement proposal was made

by your client, a copy of which is attached hereto marked as

Annexure "A"

2.2. On the 12th of October 2015 our client accepted your

settlement proposal and we attach hereto a copy of the

acceptance letter, marked as Annexure "B" as well as a copy

of the settlement agreement and power of attorney referred

to in the correspondence as Annexure "C" and "D",

respectively.

2.3. On the 21st of October 2015 the writer hereof followed up

with your Mr. George from GP Venter Attorneys with

regards to the signing of the settlement agreement. Mr.

George advised that the defendants are not willing to sign

the settlement agreement and failed to furnish reasons for

their refusal;

2.4. The Defendant made a settlement proposal which was

accepted by our clients and are there no grounds to refuse to

8

proceed with the settlement agreement and did the attorney

fail to address any of the issues raised by the writer hereof;

[7] The plaintiff disputes this and contends that in response to the letter

relied upon by the defendants dated 7 October 2015, the plaintiff made a

counter offer to the defendants on the terms of a proposed settlement

agreement attached to an e-mail dated 12 October 2015, the terms

whereof, amongst others, were as follows:

" .... NOW THEREFORE THE PARTIES RECORD THEIR

AGREEMENT AS FOLLOWS:

I. The Defendants admit being indebted, jointly and severally

in solidum, the one paying the other to be absolved, to the

Plaintiff on the grounds set out in the Plaintiff's Summons

for:

i) Payment of the sum of R3, 989, 7 48, 68;

ii) Interest on the sum of R3,989, 748,68 at the rate of 13.00%

per annum from 11 April 2014 to date of payment;

iii) Declaring the property described . below specially

executable:

ERF 86 FLORAUNA TOWNSHIP

REGISTRATION DIVISION J.R

PROVINCE OF GAUTENG

MEASURING 1803 (ONE THOUSAND EIGHT

HUNDRED AND THREE) SQUARE METRES

-----9

HELD BY DEED OF TRANSFER NO. T152439/05

iv) Costs of suit on the scale as between attorney and client to

be taxed or agreed upon.

2. The interest rate of 13. 00% as of 11 April 2014 is linked to the prime

rate of the Plaintiff at the rate of prime plus 4% and the interest rate

will vary in accordance with the amended prime rate of the Plaintiff

as published from time to time.

3. the Defendants acknowledge that the indebtedness is due, owing and

payable to the Plaintiff

4. In order to pay the indebtedness, the Defendants admit and consent to

realise and sell the immovable property for payment of their

indebtedness whether wholly or partially to the Plaintiff

5. The J51 and 2nd Defendants in their respective capacities as trustees for

the time being of the Gerhard Botha Trust {IT10362/1996), the owner

of the property, hereby irrevocably grants to the Plaintiff a power of

Attorney to find a willing and able b-uyer for and to sell the following

property in terms of the power of attorney attached hereto marked as

"A " and to be signed on conclusion hereof

6. Should the Plaintiff elect not to proceed with the sale of the property

in terms of the power of attorney it shall notify the Defendant

accordingly in which event the Defendant shall have 30 (thirty) days

to present the Plaintiff with an offer acceptable to the Plaintiff In the

event that the Defendant fails to procure an offer acceptable to the

Plaintiff the Plaintiff shall be entitled to proceed with the issuing of a

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warrant of execution, in terms of this agreement made an order of,

declaring the property executable.

7. This agreement shall not in any way detract from or prejudice the

Plaintiff's right to recover from the Defendants the balance of the

amounts that may be owing to the Plaintiff either under the said

mortgage bonds or from any other cause and the Defendants agree

that the proceeds of the sale will not be regarded as full and final

settlement of any debt owing by the Defendants

8. The property will be sold at a purchase price acceptable to the

Plaintiff and the Defendants will be held liable for the shortfall on the

account which shortfall amounts shall be confirmed upon transfer of

the property.

9. The Defendants will be afforded 60 (sixty) days after date of transfer

of the property to effect payment of the shortfall or make an

acceptable offer for repayment in instalments of the shortfall. If no

agreement can be reached within 60 (sixty) days after the Defendants

have been notified of the shortfall, the full outstanding amount shall

be due and payable and is the Plaintiff entitled to proceed with the

issuing of a warrant of execution against the Defendants

10. The Defendants acknowledge that a Certificate signed by any

Manager of the Plaintiff, whose appointment and authority to sign

need not to be proved, as to the amount owing to the Plaintiff at any

time, whether on account of the Capital and/or on account of the

interest and/or on account of the indebtedness or the shortfall, shall

be binding on them and shall be prima facie proof as to amount owing

in respect thereof, that such amount is due and payable, as also the

rate of interest applicable thereto.

11

11. The Defendants acknowledge that should the Plaintiff proceed

against them in terms hereof, they shall be liable for all the Plaintiff's

costs so incurred on the sale as between Attorney and client, including

collection commission, as also the costs attendant on the drawing and

preparation hereof

12.The parties record and agree that this Agreement shall be made an

Order of Court by agreement between the parties

13. No addition to or variation, consensual cancellation or novation of

this agreement and no wavier of any rights arising from this

Agreement or its breach or termination shall be of any force or effect

unless reduced to writing and signed by the Parties or their duly

authorised representatives.

14.No latitude, extension of time or other indulgence which may be given

or allowed by the Plaintiff to the Defendants in respect of the

performance of any obligation hereunder, and no delay or

forbearance in the enforcement of any right of.the Plaintiff arising

from this Agreement, and no single or partial exercise of any right by

the Plaintiff under this Agreement, shall in any circumstances be

construed to be an implied consent by the Plaintiff or operate as a

waiver or a novation of or othenvise affect any of the Plaintiff's rights

in terms of or arising from this Agreement or the Mortgage bond or

es top or preclude the Plaintiff from enforcing at any time and without

notice, strict and punctual compliance with each and every provision

or term thereof

15. This agreement, and its annexure, constitutes the whole Agreement

between the Parties as to the subject matter hereof and no

12

agreements, representations or warranties, whether express or

implied, between the Parties regarding the subject matter hereof,

other than those set out herein, shall be binding on the parties.

16. If any provision of this Agreement is rendered void, illegal or

unenforceable in any respect under law it shall be severable from the

remaining provisions of this Agreement and the validity, legality and

enforceability of the remaining provisions shall not in any way be

affected or impaired thereby.

1 7. The Defendants by their signature hereto respectively confirm and

verify that they have personally appended their signatures hereto,

freely and voluntarily and of their own volition and acknowledge that

they understand comprehend and are conversant with the terms and

provisions of this Agreement and appreciate and are cognisant of the

import shereof (sic) and that they are duly authorised to act in their

respective capacities ... "

[8] The defendants did not accept the plaintiffs counter proposal as set

out above. The defendants' attorney communicated to the plaintiffs

attorneys in a letter dated 28 October 2015 that the plaintiffs counter

offer was unacceptable to the defendants and that the defendants would

not be signing the settlement agreement and the Power of Attorney

attached to the e-mail dated 12 October 2015. He further stated that the

defendants' settlement proposals were accepted by the plaintiff in

paragraph 2 .4 of the letter dated 23 October 2015 [I deal with this aspect

fully below]. He then sent a settlement agreement to this effect [i.e. along

the defendants' proposal as set out in the letter of 7 October 2015],

13

attached to his letter as annexure "GBB7", the terms whereof are as

follows:

"l . The First and Second Defendants will sign the documentation

required to transfer all their rights of the property known as

ERF 86, FLORAUNA TOWNSIDP held by deed T152439/05

to the Plaintiff.

2. The Third Defendant will make a declaration of his assets

and liabilities to the Plaintiff

3. Should the parties settle this matter, the matter will be

removed from the trial roll.

[9] To this the plaintiff's attorney responded in a letter dated 29

October 2015 stating, amongst others, the following:

"

4. Your client (defendants) made a settlement proposal on the

grounds that he is prepared to relinquish the property to our

client in order to curtail the issues, as he does not wish for a

judgement to be listed against his name.

5. The offer was acceptable based on the condition that a

monetary judgement be obtained against your client. As

correctly stated in your letter, this constituted a counter-offer

and a rejection of the original offer. (Legator McKenna Inc

14

and another v Shea and others 2010 (1) SA 35 (SCA) at

paral 7)

6. The counter offer made by our client was not acceptable to

your clients. No reasons have been given.

7. In any event, it is preposterous of you to suggest that a claim

of the plaintiff against your clients of many millions of

Rands would be settled on the basis that:

7 .1. a power of attorney would be signed for the sale of

the bonded property (thereby accepting that amounts

are owing by the trust and hence Mr Gerhard Botha

SC as surety);

7 .2 by Mr Botha simply providing a declaration of his

assets and liabilities.

[1 O] Counsel for the defendants submitted that paragraph 2.4 of the

letter dated 23 October 2015 is an unequivocal acceptance of the

defendants' settlement offer by the plaintiff and contend that the plaintiff

is estopped from challenging the settlement and compromise. Further that

the plaintiffs declarations and conduct is manifest and unequivocal and

that the only logical inference that can be drawn there from is that of an

acceptance by the plaintiff of the defendants' settlement proposal.

[11] The defendants contend that even in the event of the plaintiff

arguing that the defendants' settlement proposal was not accepted, the

defendants are nonetheless reasonably entitled to assume from the words

15

and conduct of the plaintiff that an offer was accepted and that the parties

were in agreement.

[ 12] Counsel for the plaintiff submitted, that the correspondence relied

upon by the defendants are hearsay and do not constitute evidence led,

that therefore the contents of the letters referred to above is not proved.

[13] It is so that no evidence was led. Most of the letters and/or e-mails

referred to above refer to telephonic conversations and/or what was

discussed at the pre-trial conference. Obviously the court is not privy to

the full discussions at the pre-trial conference, and/or full conversations

of what was said by the parties' attorneys during their conversations.

There is no evidence under oath in that regard. Nowhere in the letters

exchanged between the parties are the full contents of what was discussed

set out, save to mention the proposals made by the defendants and the

plaintiff respectively. However, on the communication in the various

letters and/or e-mails, I am inclined to adjudicate the matter on such

correspondence.

[14] Counsel for the plaintiff submitted that the letter of 23 October

2015 relied upon by the defendants for compromise still mentions that the

plaintiff is prone to accept the defendants' offer to settle on the terms set

out in the settlement agreement which had to be signed by the defendants

and power of attorney, attached to the e-mail from the plaintiffs attorney

dated 12 October 2015 [to which the defendants' attorney had responded

on 19 October 2015, that he will refer same to his clients [the defendants]

for instructions, not that the defendants have accepted the plaintiffs

settlement/counter offer; only on 29 October did he .communicate that the

counter offer by the plaintiff was rejected by the defendants].

16

[15] It is common cause that the defendants rejected the plaintiffs

counter proposal and refused to sign the settlement agreement and the

power of attorney. As already stated above, this was communicated by

the defendants to the plaintiff through their respective attorneys, and was

reiterated by the defendants' counsel in argument.

[ 16] Counsel for the plaintiff correctly submitted that the defendants

cannot just choose the words "our client accepted your settlement

proposal. .. " without having regard to the content of the whole letter

setting out the basis upon which the defendants' proposal would be

accepted. That it cannot be said that there is an unequivocal acceptance of

the defendants' settlement proposal, as the plaintiff still sought a

settlement on the basis set out in the settlement agreement. There is

reference, in paragraph 2.2 of the letter aforesaid, to the e-mail dated 12

October and the settlement agreement and power of attorney attached

thereto.

[ 17] "A compromise (transaction) is a contract whose purpose is to

prevent or avoid or to put an end to litigation. Whether embodied in an

order of court or not, it has the effect of res iudicata ". Refer Collach &

Gomperts (1967) (Pty) Ltd v Universal Mills and Produce Co (Pty) Ltd

and Others 1978 (1) SA 914 (A) at 921

[18] In Karson v Minister of Public Works 1996 (1) SA 887 at 893 f-g

Leach J said the following with regards a compromise:

"It is well settled that the agreement of compromise also known as

transactio, is an agreement between the parties to an obligation, the

17

terms of which are in dispute, or between parties to a lawsuit, the

issue of which is uncertain, settling the matter in dispute, each

party receding from his previous position and conceding

something, either by diminishing his claim or increasing his

liability."

[ 19] In the defendants' heads of argument, counsel for the defendants

correctly set out the elements necessary for a valid compromise, viz.

[ 19 .1] there must exist a dispute between the parties that is capable

of being compromised,

[19.2] the tender or offer made must constitute a compromise; and

[19.3] the tender or offer must be accepted.

[20] From the correspondence set out above, as well as from the

submissions from counsel it is clear that neither party accepted the terms

of the other unequivocally.

[21] As stated above, the defendants contend that the settlement

proposal made by the defendants constitute a compromise. Counsel for

the defendants submitted that it is clear that the defendants made an

express settlement offer and that it was accepted by the plaintiff. That it is

clear from the plaintiffs declarations and conduct that the parties are ad

idem that the matter is settled. In alternative, that the conduct and the

declarations of the plaintiff led the defendants to believe that a

compromise was reached.

18

[22] Counsel for the defendants submitted that the parties have been

involved in protracted litigation; that in an attempt to put an end to the

litigation and to resolve the dispute, the plaintiff invited the defendants to

make a settlement proposal which the defendants subsequently did in the

letter of 7 October 201 7 referred to above.

[23] The defendants' settlement proposal was however not accepted by

the plaintiff. The plaintiff made a counter proposal [in a settlement

agreement, which the defendants were required to sign], setting out the

terms upon which the defendants' settlement offer would be accepted by

the plaintiff; but the defendants rejected this and refused to sign the

settlement agreement on the terms of the plaintiff, and it was specifically

communicated to the plaintiff that the counter offer was not accepted by

the defendants.

[24] In Burt NO v National Bank of South Africa 1921 AD 59 at 62 the

court held that:

"whether a compromise has been reached will depend on the facts

of each case. In such a case the Court will have regard to the

declaration and conduct of the alleged acceptor concerned viewed

in the light of relevant circumstances. Every case must be decided

on its own/acts; the object being in each case to ascertain whether

the Parties were ad idem. "

[25] Clearly in this matter, from the correspondence referred to above,

the parties were not ad idem. There is no consensus between the parties.

19

[26] In Reid Bros (SA) Ltd v Fischer Bearings (;!) Ltd 1943 AD 232

Watermeyer ACJ held that:

"Now a binding contract is a rule constituted by the acceptance of

an offer, and an offer can be accepted by conduct indicating

acceptance, as well as by words expressing acceptance. Generally

it can be stated that what is required in order to create a binding

contract is that acceptance of an offer should be made manifest by

some unequivocal act from which the inference of acceptance can

logically be drawn. "

[27] In Be Bop a Lula Manufacturing & Printing CC v Kingtex

Marketing (Pty) Ltd [2008] 1 All SA 529 (SCA) Malan AJA stated the

following:

"The proposal, objectively construed, must be intended to create

binding legal relations and must have so appeared to the offeree.

Although, generally, a contract is founded on consensus,

contractual liability can also be incurred in circumstances where

there is no real agreement between the parties but one of them is

reasonably entitled to assume from the words and conduct of the

other that they were in agreement. "

[28] On the facts herein it cannot be correct that the plaintiff accepted

the defendants ' settlement offer, because in response to the offer

communicated and/or proposed by the defendant the plaintiff made a

counter offer. On 12 October 2015, and by an e-mail, the plaintiffs

attorney communicated that the plaintiff is inclined to consent to the

defendants' settlement proposal, but on the terms set out in the settlement

20

agreement referred to above, attached to the said e-mail. The said

settlement agreement contains additional terms and conditions that were

not contained in the defendants' settlement proposal and thus constitutes

a counter offer. Nowhere is it recorded that such counter offer was

eventually accepted by the defendants. It can thus not be correct that a

compromise was reached. The offer and acceptance cannot be one sided.

[29] In scrutinising the correspondence between the parties, the letter

from the defendants attorneys to the plaintiffs attorneys dated 30

September 2015 specifically requires the plaintiffs attorney to furnish the

defendants' attorney with the plaintiffs "instructions with regards the

defendants' settlement proposal" [ my underlining]. On 1 October 2015

the plaintiffs attorney replied that the defendants should "revert with a

written proposal, to which the defendants responded with the settlement

proposal in contention herein, dated 7 October 2015.

[30] In response thereto the plaintiffs attorney sent an e-mail dated 12

October 2015, in which it is communicated to the defendants, through

their attorney that the plaintiff "is inclined to consent to your

(defendants') proposal on terms as set out in the attachd settlement

agreement"; and in a letter from the defendants' attorney dated 28

October 2015 it is communicated to the plaintiff through its attorneys that

the settlement agreement attached to the e-mail dated 12 October 2015,

from the plaintiffs attorney does not represent the settlement

proposal/offer made by the defendants in their letter dated 7 October

2015; that the plaintiffs settlement agreement proposed by the plaintiff is

a counter offer, and that that was unacceptable to the defendants and that

the defendants were not willing to sign the settlement agreement

proposed by the plaintiff.

21

(31] From the above one can discern that there is no meeting of the

minds between the plaintiff and the defendants on the terms of the

settlement proposal. The plaintiffs response cannot be said to be an

unequivocal acceptance of the defendants' terms. Counsel for the

defendants reiterated, in his submissions, that the settlement agreement

proposed by the plaintiff is 'undoubtedly a counter offer', and that that

was unacceptable to the defendants.

(32] The word 'Proposal', is defined in the New Webster's Dictionary

of the English Language, College Edition to mean 'proposing or

suggesting something for acceptance, adoption or performance'. A

proposal is an offer/tender which would require acceptance; therefore a

proposal must be accepted for there to be an agreement.

[33] Further on the correspondence which the defendants seek to rely on

for their defence of compromise, more specifically the letters dated 7th

October 2015 [from the defendants' attorneys], lih and 23th October

2015 [from the plaintiffs attorneys] and 28 October 2015 [from the

defendants' attorneys], it is clear that neither party accepted the terms of

the other.

[34] Annexures "B", "C" and "D" to the letter dated 23 October 2015

are not included in the bundle; however one can discern from paragraph

2.2 that Annexures "B" refers to the letter dated 12 October 2015 referred

to above, wherein it was communicated to the defendants that the plaintiff

was inclined to accept the defendants on the terms set out in the

settlement agreement attached to the said letter. Annexure "C" should be

settlement agreement and "D" should be the Power of Attorney referred

to in the letter dated 12 October 2015.

22

[35] On a proper reading of the letter dated 230ctober 2015, mention of

" ... settlement proposal which was accepted .... " in paragraph 2 .4 thereof,

cannot be read in isolation; it is followed by~ ... and are there no grounds

to refuse to proceed with the settlement agreement". This clearly

shows that plaintiff still wanted to accept the defendants' offer on the

terms set out in the settlement agreement-Annexure "C" read together

with annexure "D", and required that the defendants to sign the settlement

agreement and the power of attorney. It cannot be correct that paragraph

2.4 of the plaintiffs letter dated 23 October is an unequivocal acceptance

of the defendants' settlement offer. This paragraph cannot be read in

isolation. It must be read in context. There is still mention of the

settlement agreement and power of attorney [ annexures "C" and "D"] to

the e-mail dated 12 October 2015 referred to in the letter dated 230ctober

2015.

[36] Most importantly, preceding paragraph 2.4 is paragraph 2.2. What

is stated in paragraph 2.2 of the letter relied upon by the defendants is

that: on the 12th of October 2015 the plaintiff accepted the defendants'

settlement proposal and attached a copy of the settlement agreement

and power of attorney as Annexure "C" and "D", respectively, which

contained the terms upon which the defendants' settlement proposal

would be accepted, and required the defendants to sign the settlement

agreement and power of attorney. [My emphasis]

[3 7] On a proper reading, the word "accepted" in paragraph 2.4 of the

letter refers to what is stated in paragraph 2.2 aforementioned, wherein

mention is made of the e-mail of 12th of October 2015 to which the

settlement agreement and power of attorney were attached. Clearly the

plaintiff did not accept the defendants ' settlement offer on the defendants'

23

terms [as set out in the letter dated ?October 2015]; the plaintiff included

other terms set out in the plaintiff' settlement agreement [ which

incorporate the defendants' terms pertaining to the property], which the

defendants declined on 28 October 2015.

[38] The defendants' proposal is silent on the monetary claim by the

plaintiff. The plaintiff's counter offer on the other hand includes the

monetary claim.

[39] The letter dated 23 October 2015, in particular paragraph 2.4 relied

upon by the defendants for their plea of compromise cannot be said to be

an unequivocal acceptance of the defendants' settlement offer.

[ 40] The onus is on the defendants to prove, on a balance of

probabilities that a compromise was reached between the parties. On the

facts before court, the facts set out in correspondence between the parties

does not accord with the principles enunciated in the cases referred to by

the defendants' counsel in his heads of argument.

[ 41] Having regard to all the factors herein, the defendants have thus

not made out a case for a compromise reached between the parties ..

[ 42] It was pleaded by the defendants in paragraph 17 of the amended

plea that, in the alternative, and in the event of this court finding that no

compromise was reached the court should find that the plaintiff is

estopped from relying on the allegation that a settlement agreement was

not reached.

24

[43] The essence of the doctrine of estoppel is that a person is precluded

or estopped from denying the truth of a representation previously made

by him to another person if the latter believing in the truth of the

representation, acted to his detriment.

[ 44] The essential requirements for estopped can be summarized as

follows: (1) a representation by words or conduct of a certain factual

position, (2) that a party acted upon the correctness of the facts

represented, (3) that a party acted or failed to act to his detriment.

. [ 45] From the facts relied upon by the defendants, and from the

conclusion this court has reached, there is no basis in my considered view

upon which this court can find that the plaintiff should be estopped from

relying on the allegation that a settlement agreement was not reached.

There are no facts upon which it can be found that the defendants acted to

their detriment in consequence of the correspondence relied upon by the

defendants. The defendants do not say in what way they would have

acted to their detriment. There is no evidence before court that the

defendants relied on a representation by the plaintiff; nor is there any

evidence that the defendants altered their position to their detriment

consequent upon the representation if any. Even counsel for the

defendants never submitted anything to this effect.

[ 46] From the facts before this court, and on the conclusion this court

has reached, there is no basis, in my considered view, upon which this

court can find that the plaintiff is estopped from relying on the allegation

that a settlement agreement was not reached. Likewise the defendants

have not made out a case for estoppel.

\. -· -

25

[47] Under the circumstances the defendants' plea of compromise and

estoppel fails. The costs reserved on 5 November 2015 do not form part

of the separated issues, and therefore remains reserved for determination

with all the other issues stayed.

[ 48] In the result I make the following order

1. The parties did not reach a compromise as contended for in

paragraph 16 of the defendants' plea, and consequently the

plaintiff is entitled to proceed with its original cause of action.

2. The plaintiff is not estopped and is entitled to proceed with the

original cause of action.

3. The defendants are ordered to pay the costs herein jointly and

severally, and such costs to include the costs of Senior Counsel.

L M MOLOPA-SETHOSA

JUDGE OF THE HIGH COURT

Appearances as follows:

Counsel for plaintiff:

Instructed by:

Counsel for defendants:

Instructed by:

Adv. Luderitz

TIM DU TOIT & CO INC.

Adv. Geach

GP VENTER ATTORNEYS