THE SUPREME COURT OF APPEAL OF SOUTH AFRICA

JUDGMENT

Case no: 666/10
In the matter between:

WAKEFIELDS REAL ESTATE (PTY) LTD

Appellant

and

GAVIN WAYNE ATTREE

First Respondent
TRACEY ATTREE

Second Respondent
FIONA ISOBEL HOWARD

Third Respondent

Neutral citation:
Wakefields Real Estate v Attree (666/10) [2011]
ZASCA 160 (28 September 2011)

Coram:

Navsa, Lewis, Ponnan, Mhlantla and Wallis JJA

Heard:

12 September 2011

Delivered

28 September 2011
Summary:
Whether estate agent who introduces a purchaser to a
property, where sale is concluded through another agent, is effective cause of
the sale and entitled to commission.

_____________________________________________________________
ORDER
______________________________________________________________
On appeal from: KwaZulu-Natal High Court, Durban Nicholson J sitting as
court of first instance):
The appeal is upheld with costs and the cross appeal is dismissed with costs.
Paragraphs (a) and (b) of the order of the high court are set aside and
replaced with:
‘The defendants are ordered to pay the plaintiff the sum of R232 560 plus
interest at the rate of 15.5 per cent per annum from 11 October 2005 to date
of payment, and costs of suit.’
______________________________________________________________
JUDGMENT
______________________________________________________________

LEWIS JA (NAVSA, PONNAN, MHLANTLA and WALLIS JJA concurring )

[1] The appellant in this matter, Wakefields Real Estate (Pty) Ltd
(Wakefields), is an estate agency.  The first two respondents, Mr and Mrs
Attree, sold their house at 37 Monteith Place (I shall refer to the house as
Monteith Place), Durban North, KwaZulu-Natal, to the third party, Mrs
F Howard, who was joined at the instance of the Attrees. The dispute between
them is whether Wakefields was the effective cause of the sale and thus
entitled to commission. The Attrees in fact paid commission to another estate
agency, Pam Golding Properties, which in turn shared it with a third agency,
Remax Estate Agents. Remax had the sole mandate to sell the house at the
time the sale was concluded.

[2] The high court (Nicholson J) held that Wakefields had not been given a
mandate by the Attrees and also that they had not been the effective cause of
the sale. It dismissed Wakefields’ claim. The high court did not, in the
circumstances, need to deal with Howard’s position, but it nonetheless
ordered that the Attrees pay her costs incurred prior to a rule 37 conference

held on 6 November 2009, and that she pay her costs after that date. She
cross appeals against the latter costs order. Leave to appeal was granted by
this court.

[3] It will be immediately apparent that at least three estate agents
attempted to find a willing purchaser for the house. In fact there were more. I
shall turn to a brief summary of the facts before dealing with the legal
principles applicable and the evidence of the parties and the estate agents.

[4] In 2001 the Attrees bought Monteith Place through Wakefields,
represented by Mr M Craig. Some two years later they acquired a vacant
piece of land in Mount Edgcombe, and started building another house there in
2004. A number of estate agents, including Craig, heard that the Attrees were
building at Mount Edgcombe and offered to find a purchaser for Monteith
Place. At that stage, the Attrees were not sure that they would move to the
new house, but did tell agents that they could bring potential purchasers to
view Monteith Place. Craig ‘listed’ the house on Wakefields’ books and
advertised it at a price of R3 775 000, although Mr Attree had said that he
wanted R3 995 000.

[5] Craig, when giving evidence, maintained that Wakefields had sent a
standard letter to the Attrees confirming that it had a mandate to sell the
house. Mr Attree denied ever receiving such a letter and Craig could not
produce a copy since Wakefields’ computer systems had ‘crashed’. He did,
however, produce a standard letter to this effect, and insisted that he would
have sent one to the Attrees. Nothing actually turns on this, for Wakefields
pleaded that there was an oral mandate, the express (or implied) terms of
which included one that the Attrees pay estate agent’s commission equivalent
to the tariff amount plus VAT. The amount payable if that term were proved
was agreed by all concerned to be six per cent of the purchase price (less in
fact than the tariff amount would have been).

[6] From time to time in 2005 Mrs Phoulla Walker, an estate agent
employed by Wakefields, took prospective purchasers to view Monteith Place.
She did not encounter either of the Attrees on these visits but was let in by a
domestic worker and always left a card to show that she had been there.

[7] Howard and her husband lived in Morningside, Durban. In January
2005 she attended a show day in a complex, where she encountered Walker,
the estate agent showing the property. Howard told Walker that she was not
really interested in the type of property on show, but wished to buy something
older. Walker made a note of houses to show Howard, and took her to view a
number of houses in different areas. Although Howard was keen to remain in
Morningside she nonetheless went to see Monteith Place in Durban North in
March 2005. In her own words she ‘loved’ the house.  However, she told
Walker that the price was beyond her reach. Despite that she visited again
with her husband and they spent some time there.

[8] When Walker phoned Howard after the second visit, on 6 March 2005,
Howard told her that she and her husband had decided not to buy a new
house. They were under financial pressure and needed to invest money in
their garage business. Walker accordingly stopped phoning Howard and
showing her houses on the property market.

[9] Shortly afterwards, Howard went to the Gateway shopping centre with
a friend. Fortuitously they encountered the friend’s aunt, Mrs D de Marigny, an
agent employed by Pam Golding Properties. When Howard learned that De
Marigny was an estate agent working in the Durban North area, Howard told
her that she had seen Monteith Place and had really liked it – the look and the
layout – but that it was far too expensive, and she had stopped looking for a
while. She asked whether De Marigny knew of any other properties that were
similar. De Marigny said that, offhand, she did not. In any event Howard said
that she still wished to live in Morningside and De Marigny said that she would
put Howard in contact with the Pam Golding agents who worked there.

[10] Early in April 2005 the Attrees were advised by Mrs D Hamilton of
Remax that they should lower their asking price to R3 495 000. (This was
termed ‘price counselling’.) They agreed to do so and gave Remax the sole
mandate to find a purchaser, arranging for Monteith Place to be put on show
on Sunday 10 April. The sole mandate was effective from 7 April, but the
Attrees mistakenly thought that it would commence only the following Monday.
Remax advertised the house for sale on Friday 8 April at the lower price.

[11] Despite having given a sole mandate to Remax, Attree phoned two
other agents, one of whom was De Marigny, on 8 April, and told them that he
had agreed to lower the price. De Marigny recalled that Howard had said she
really liked Monteith Place and on Saturday 9 April phoned her to tell her that
the price had been reduced. Howard agreed to go back to the house with her
husband and made arrangements to do so that day. De Marigny prepared an
offer to purchase for R3 400 000 and agreed to a reduced commission. She
took it to the Attrees who accepted the offer that evening. As indicated, the
commission of R150 000 was shared by Remax, which had the sole mandate,
and Pam Golding which claimed that it was the effective cause of the sale.

[12] The high court found that there was no oral mandate given to
Wakefields to find a purchaser for a commission of six per cent. On appeal the
Attrees did not persist in the argument that Wakefields had no mandate,
accepting that Monteith Place had been listed for sale by them and that they
had had dealings with the Attrees and brought potential purchasers to view it.
They accepted also that in the absence of agreement as to the quantum of
commission the rate would have been six per cent.

[13] But the high court found also that De Marigny was the effective cause
of the sale – hence the dismissal of Wakefields’ claim. It reached this finding
on several bases: that at the time when Walker took the Howards to Monteith
Place they could not afford the asking price; that De Marigny did more than
Walker to secure the sale; that the Attrees had been persuaded to reduce the
price; and that the Howards were no longer under financial pressure in

respect of their business. The cumulative effect of these factors, said the
judge, outweighed the effect of the initial introduction by Walker.

[14] It is notoriously difficult, when there are competing estate agents, to
determine who is the effective cause of the sale that eventuates. It may be
that more than one agent is entitled to commission. This was put trenchantly
by Van den Heever JA in Webranchek v L K Jacobs & Co Ltd  1948 (4) SA
671 (A) at 678 where he said:
‘Situations are conceivable in which it is impossible to distinguish between the efforts
of one agent and another in terms of causality or degrees of causation. In such a
situation it may well be (it is not necessary to decide the point) that the principal may
owe commission to both agents and that he has only himself to blame for his
predicament; for he should protect himself against that risk.’
Van den Heever JA continued (at 679):
‘[A] judge who has to try the issue must needs decide the matter by applying the
common sense standards and not according to the notions in regard to the operation
of causation which “might satisfy the metaphysician” . . . . The distinction between the
concepts causa sine qua non and causa causans is not as crisp and clear as the
frequent use of these phrases would suggest; they are relative concepts. . . . It
stands to reason, therefore, that the cumulative importance of a number of causes
attributable to one agent may be such that, although each in itself might have been
described as a causa sine qua non, the sum of efforts of that agent may be said to
have been the effective cause of the sale.’

[15] Was Walker’s introduction of Howard to Monteith Place in itself the
effective cause when the sale was concluded? The high court held not, for the
reasons already described. And it found that Walker, De Marigny, Howard, Mr
Howard and Mr Attree, all of whom testified, were telling the truth to the best
of their ability.  In my view, nothing actually turns on the respective witnesses’
credibility. For the facts that are not in dispute are sufficient to determine
whether Wakefields were entitled to commission. I should note, however, that
the evidence of De Marigny was far from satisfactory and that the Howards,
who allegedly indemnified the Attrees against paying commission to any agent
other than Pam Golding (an issue that does not arise in this appeal), were not
disinterested witnesses.

[16] The high court concluded that the Howards dealt with De Marigny
‘because she was the most instrumental in securing the sale’ and the judge
‘was not convinced a sale would have eventuated without the efforts of Mrs de
Marigny’. However, the court recognised that she ‘was fortunate in meeting
the Howards (sic) by accident’. She came ‘on the scene when the obstacles
were capable of removal’. This, and the fact that she took them to see
Monteith Place again, tended ‘to offset the notion that the original introduction
and visiting of the house was conclusive and dominating’. The judge
considered that while Walker’s introduction of Howard to the house was a sine
qua non, it was not the causa causans of the sale.

[17] The high court relied on Basil Elk Estates (Pty) Ltd v Curzon 1990 (2)
SA 1 (T) in concluding that the first introduction by the estate agent had been
outweighed by intervening factors. Various personal factors had stopped the
prospective purchaser in that case from concluding a sale. But nine months
later circumstances had changed and the purchaser bought the property
through another estate agent. The court held that the intervening factors were
such as to make the initial introduction relatively unimportant.

[18] In my view Aida Real Estate Ltd v Lipschitz 1971 (3) SA 871 (W) is
more instructive. Although Nicholson J quoted from it extensively, he did not
apply the principles cited. In that case an estate agent had introduced a
purchaser who ultimately negotiated directly with the seller in concluding a
sale. The agent was nonetheless held to be the effective cause of the sale
and entitled to commission. Marais J said (at 875E-H) that protracted
negotiations about finances are often attendant on transactions brought about
by an estate agent. In that case it was the purchaser who had concluded the
deal, but it was the estate agent’s ‘wisdom and business acumen’ that brought
together the eager seller and the purchaser who was able to overcome
financial obstacles. Marais J said that ‘[i]n such a case the agent would be
entitled to remuneration, no matter whether he selected the potential

purchaser by chance or by foresight. A commission agent is paid by results
and not by good intentions or even hard work.’

[19] This matter is little different from Aida. But for Walker’s introduction of
the house to Howard, the latter would not have been aware of the existence of
the property. It was Walker’s ‘wisdom and business acumen’ that made her
take Howard to Monteith Place in Durban North. Howard was not looking in
that area at the time, and preferred to buy a house in the area where she and
her family then lived. She claimed to have been frustrated that Walker took
her to see houses in Durban North that were out of their price range, but she
nevertheless did view them. And when Walker took Howard to Monteith Place
Howard ‘loved’ the house, and returned with her husband the following day,
accompanied by Walker. Howard conceded that she and her husband were
very interested in the house but said that, given financial constraints (that later
fell away), they could not afford it. Walker gave up trying to negotiate a sale
with Howard only when told that she had stopped looking for a house to buy
and that she and her husband were going to renovate their existing home.

[20] If Howard had herself approached the Attrees, and persuaded them to
sell Monteith Place to her at a lower price (that is, assuming there was no
intervention at all by De Marigny) Wakefields would undoubtedly have been
entitled to commission, as was the agent in Aida. So too, had the Attrees
approached Howard directly and offered to sell to her at a lower price,
Wakefields would likewise have been entitled to commission: Walker was the
effective cause of the sale.

[21] De Marigny, on the other hand, learned that Howard was interested in
Monteith Place quite fortuitously. She did nothing about it until phoned by Mr
Attree who advised that he was asking for less. At that stage it was only five
weeks since Howard had seen the house with Walker. The effort that De
Marigny put in amounted to no more than making a phone call to Howard,
arranging for the Howards to see the house again, drawing up the offer to
purchase, persuading the Attrees to lower their price even further and

accepting a reduced commission. That may be regarded by some as a hard
day’s work: and she was undoubtedly instrumental in concluding the sale.
Indeed she was reluctant to admit that Walker’s introduction, and the work of
the Remax agent who had persuaded the Attrees to reduce the asking price,
had any effect on the sale of Monteith Place.

[22] Had Walker not shown the Howards the house first – the initial
introduction – Monteith Place would not have been sold to Howard through
the agency of Pam Golding. Howard had ‘absolutely loved the house’ and had
persuaded her husband to view it with her. He too liked it but was concerned
about finances. But for that introduction De Marigny would not have known
that the Howards were interested in the property (and that, as I have said, she
discovered quite fortuitously). She would not have found a willing and able
purchaser before Remax’s show day. She reaped where she had not sown.
Despite De Marigny’s later intervention, in my view Walker’s introduction was
the effective cause of the sale.

[23] Accordingly, Wakefields were entitled to commission at the rate agreed
by them to be applicable – six per cent. That the Attrees find themselves liable
to pay more than one agent is of their own making. This is the kind of situation
described by Van den Heever JA in Webranchek where he said that a seller
has ‘only himself to blame for his predicament; for he should protect himself
against that risk’ (quoted above).

[24] As far as the cross appeal against the costs order is concerned,
Howard’s lack of success on the merits means that it must fail. There was no
appeal against the order that the Attrees pay her costs before the pre-trial
conference on 6 November 2009. And in this regard there was some logic  in
the reasoning of the high court, which in any event was exercising a
discretion. The cross appeal must thus be dismissed and paras (c) and (d) of
the high court’s order (that the Attrees pay Howard’s costs incurred prior to 6
November, and that she pay her own costs incurred after that date) must
stand.

[25] The appeal is upheld with costs and the cross appeal is dismissed with
costs. Paragraphs (a) and (b) of the order of the high court are set aside and
replaced with:
‘The defendants are ordered to pay the plaintiff the sum of R232 560 plus
interest at the rate of 15.5 per cent per annum from 11 October 2005 to date
of payment, and costs of suit.’

_____________
C H Lewis
Judge of Appeal

APPEARANCES:

FOR APPELLANT:
B L Skinner SC

Instructed by

Neumann White, Durban

Alberts Attorneys, Bloemfontein

RESPONDENT:

A J Troskie SC

Instructed by

Larson Falconer Inc, Durban

Symington & De Kok, Bloemfontein

THIRD PARTY:

K C McIntosh

Instructed by

Berkowitz Cohen Wartski, Durban

Matsepes Inc, Bloemfontein.

SUPREME COURT OF APPEAL OF SOUTH AFRICA

MEDIA SUMMARY
28 September 2011
STATUS: Immediate
Wakefields Real Estate v Attree (666/10) [2011] ZASCA 160 (28 September 2011)
Please note that the media summary is intended for the benefit of the media and does not form
part of the judgment of the Supreme Court of Appeal
Today the Supreme Court of Appeal upheld an appeal against a decision of the KwaZulu-Natal
High Court (Nicholson J) which held that an estate agent, W, who had introduced a purchaser,
H, to a house in Durban North, which had subsequently been sold to H, was not entitled to
agent’s commission. A different estate agent, D, who fortuitously knew that H was interested in
the house, had contacted H when she heard that the seller was willing to reduce the price.
D prepared an offer to purchase and persuaded the seller to reduce the price further. The seller
accepted H’s offer. The high court held that W had no mandate to sell the house for a
commission of six per cent of the price, and that D was the effective cause of the sale and
entitled to commission on an agreed basis.
On appeal it was not disputed that W did in fact have a mandate to find a purchaser. The SCA
set aside the order of the high court, finding that it was actually W who had taken H, and
subsequently H’s husband as well, to the house which H had liked, but which she and her
husband thought was beyond their means. But for that introduction H would not have known
that the house was for sale. W was the effective cause of the sale, and entitled to commission.
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