THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

Reportable
Case no: 476/2018

Name of ship: MFV QAVAK:
In the matter between:
TWENDE AFRICA GROUP (PTY) LTD
t/a TAG MARINE

APPELLANT
and
MFV QAVAK

FIRST RESPONDENT

Neutral citation: MFV Qavak: Twende Africa Group (Pty) Ltd v MFV
Qavak (476/2018) [2019] ZASCA 9 (12 March 2019)
Coram:
NAVSA AP, WALLIS, DAMBUZA and MAKGOKA JJA
and DAVIS AJA
Heard:
26 February 2019
Delivered: 12 March 2019
Summary: Shipbroker – entitlement to commission – dependent on
agreement between shipbroker and either seller or buyer to pay
commission for services rendered by broker – broker advertising sale of
vessel without authority from seller – prospective purchaser responding
to advertisement – no contractual relationship established – no basis for
inferring the existence of a tacit contract.

ORDER

On appeal from: Eastern Cape Division of the High Court, Port
Elizabeth (Goosen J, sitting as court of first instance):
The appeal is dismissed with costs.

JUDGMENT

Wallis JA (Navsa AP, Dambuza and Makgoka JJA and Davis AJA
concurring)
[1] Fisherman Fresh CC (Fisherman Fresh) is the registered owner of
the MFV Qavak. It purchased the Qavak from an Irish company, C & M
Donohue Fishing Ltd (Donohue Fishing), in terms of a Memorandum of
Agreement (MOA) dated 15 August 2017 but executed by both parties on
18 August 2017. On 26 January 2018, the appellant, Twende Africa
Group (Pty) Ltd t/a Tag Marine (TAG) caused the Qavak to be arrested in
Port Elizabeth Harbour in an action in rem based upon a claim for
broker’s commission arising out of the purchase of the vessel. On
1 February 2018, Fisherman Fresh applied as a matter of urgency for the
release of the vessel from arrest. Goosen J, sitting in the Eastern Cape
Division of the High Court, Port Elizabeth, granted that relief on
20 February 2018 and gave leave to appeal on 17 April 2018.

TAG’s claims
[2] TAG’s summons, on which the arrest was based, advanced a claim
for broker’s commission ‘arising out of ship brokerage services rendered
by it’ to Fisherman Fresh. Its affidavit opposing the application to set the

arrest aside repeated the claim that it had acted as a broker on behalf of
Fisherman Fresh in negotiating the conclusion of the purchase of the
Qavak and that this entitled it to claim commission, because the sale had
been concluded through its instrumentality or agency.

[3] Alternatively to this claim, TAG alleged in its answering affidavit
that Fisherman Fresh and Donohue Shipping agreed that they would
purchase the vessel through TAG and would not employ other brokers or
do anything to frustrate TAG’s opportunity to earn commission. It said
that there had been a breach of this obligation and claimed an amount
equivalent to 10 percent of the purchase price as damages in lieu of the
lost commission.

[4] Over and above this damages claim, and in the event of the court
holding that TAG only had an agreement with Donohue Fishing, it
contended that Fisherman Fresh interfered unlawfully with that
relationship by clandestinely concluding the sale through a different
broker, thereby causing TAG to suffer damages in the amount of the lost
commission. Although this claim was based on an agreement with
Donohue Fishing and not Fisherman Fresh, it was alleged that ‘if sellers
and buyers are permitted to employ brokers who did not introduce them,
the business of shipbrokers will suffer massive uncertainty, and their
goodwill will be significantly eroded.’ The affidavit alleged that
Fisherman Fresh owed a legal duty to TAG to respect its right to its
goodwill.

[5] Neither of these damages claims was mentioned in the summons,
or formed the basis for the arrest, but in the Thalassini Avgi this court
held that it was open to a party that obtained an arrest in rem on one

ground, to rely on other grounds where it was sought to set the arrest
aside.1 It is therefore necessary to consider all three claims in deciding
whether the arrest was correctly set aside by the high court.

[6] In terms of s 3(4)(b) of the Admiralty Jurisdiction Regulation Act
105 of 1983 (the AJRA) an action in rem in pursuit of a maritime claim
may be instituted by the arrest of a vessel, where the owner of the vessel
to be arrested would be liable in personam in respect of the claim giving
rise to the arrest. In order to sustain its arrest of the Qavak, TAG bore the
onus to prove that it had a personal claim against Fisherman Fresh and
that the claim was a maritime claim. The standard of proof required to
discharge that onus was no more than a prima facie case, a test that is
satisfied if there is evidence, which, if accepted, will establish a cause of
action. 2

[7] TAG’s contractual claim for broker’s commission was a maritime
claim in terms of sub-para (p)(ii) of the definition of a maritime claim in
s 1 of the AJRA, as a claim  ‘arising out of or relating to . . . the
remuneration of . . . any person appointed to act or who acted . . . as a
broker in respect of any . . . sale . . . relating to a ship’. Its alternative
claim based on a breach of the alleged brokerage agreement was also a
maritime claim in terms of that section. It is less clear that a claim for
damages for interference with the broker’s contract with a third party is a
maritime claim, but in view of the fact that TAG failed to make out a
prima facie case under this head it is unnecessary to express a conclusive
view on the point.

1Cargo Laden and Lately Laden on Board The MV Thalassini Avgi v MV Dimitris 1989 (3) SA 820 (A)
(Thalassini Avgi) at 834F-G; MV Wisdom C: United Enterprises Corporation v STX Pan Ocean Co Ltd
[2008] ZASCA 21; 2008 (3) SA 585 (SCA) para 16.
2 Thalassini Avgi at 831G-832C.

The contractual claim for commission.
[8] It is apposite to preface the consideration of the evidence on this
claim by reminding ourselves of the basic principles applicable to a
broker’s entitlement to commission. These are summarised in the
following passage from The Law of Agency in South Africa:3
‘The broker is remunerated by commission. But it is essential that he prove that there
was an express or an implied contract of employment as broker and an express or
implied promise to pay remuneration.’
No entitlement to commission can arise in the absence of an agreement
between the broker and one, other or both of the parties to a particular
transaction that commission will be paid to the broker in the event of a
particular outcome being achieved as a result of the broker’s efforts on
behalf of the client. In the absence of some such contract, the broker’s
involvement in negotiations, however successful, does not give rise to a
right to claim commission.

[9] In the summons and the answering affidavit the contractual claim
against Fisherman Fresh was advanced on the basis that the evidence
disclosed, on the requisite prima facie basis, that Fisherman Fresh
appointed TAG as its agent to find a fishing vessel for it, in return for
which it would pay TAG commission. TAG did not rely on an express
agreement to this effect, for there was none. Its case was that such an
agreement was capable of being inferred from the following dealings that
it had with Fisherman Fresh.

3 De Villiers and Macintosh The Law of Agency in South Africa 3 ed (J M Silke) 237. See also Lawsa
Vol 17, part 1 (2 ed) sv ‘Mandate and Negotiorum Gestio’ para 15; Kerr Law of Agency 4 ed (2006) 48
and 157.

[10] In June 2017 TAG listed the Qavak for sale on its website. On
10 August 2017, Mr van Heerden, acting on behalf of Fisherman Fresh,
enquired whether the vessel was still for sale and, if so, the price. Mr
Cilliers replied on behalf of TAG saying that he had spoken to the owners
a month previously and they ‘will take USD 500 000’. Mr van Heerden
responded immediately and asked whether the vessel was still available
so that ‘we’4 could fly over to view it. Mr Cilliers then sent Mr van
Heerden draft wording of a letter of intent to be placed on a Fisherman
Fresh letterhead and signed on its behalf. This was done at 1.02 p.m. that
afternoon. The exchange of emails between Mr van Heerden and Mr
Cilliers lasted two hours from start to finish.

[11] The letter of intent, addressed to TAG, said that, on acceptance of
the vessel, after inspection and agreement on a negotiated price,
Fisherman Fresh intended to purchase the vessel ‘offered to us on your ID
Code: MFV Qavak’. This descriptive phrase conveyed that TAG was
offering the vessel for sale on behalf of the seller. The letter reinforced
this impression with a request for confirmation that the vessel was
available for sale. A further request for ‘her owners’ to permit it to be
inspected by marine surveyors on behalf of Fisherman Fresh,
strengthened the impression that TAG was representing the owners of the
vessel. It must be borne in mind that this was TAG’s wording.

[12] Mr Cilliers forwarded the letter of intent to Mr Donohue that same
day, 10 August. In response he received the unwelcome news that the
vessel was in the process of being sold and the only thing holding up the
deal was an issue over delivery. He was also told that if the sale fell

4 This referred to his wife, who was the sole member of the close corporation and heavily engaged in
the business, and himself.

through there were three other buyers waiting in the wings. Undeterred,
he went back to Mr van Heerden at 1.48 a.m. the following morning,
11 August, and suggested that Fisherman Fresh should make an offer
subject to inspection. Mrs van Heerden replied shortly before 9.00 a.m.
the same day, saying that they would make an offer of USD 500 000. Mr
Cilliers said he would submit that offer and provided a draft offer to
purchase to be placed on a Fisherman Fresh letterhead and signed on its
behalf. This was done and Mrs van Heerden returned the signed offer to
him that same day.

[13]  The offer to purchase, sent to TAG and received and forwarded by
it, without demur, to Donohue Fishing, was entirely destructive of TAG’s
case that it was acting as broker on behalf of Fisherman Fresh in this
transaction. It was addressed to TAG itself and the opening section read
as follows:
‘OFFER TO PURCHASE MFV Qavak
Dear Stephen,
On behalf of our buyers Fisherman Fresh Fish SA, we would like to offer your sellers
500 000 (Five Hundred Thousand United States Dollars) for the purchase of MFV
Qavak. Should your sellers accept our offer we will immediately sign a memorandum
of agreement salesform 1987-2012 and proceed with the sale agreement based on the
offer below.
Sellers: Coleman Donohue
Buyers: Fisherman Fresh SA’ (Emphasis added.)
Mrs van Heerden signed the offer to purchase. It contained no mention of
commission. The standard form sales contract referred to (Salesform
1987-2012) likewise makes no reference to commission.

[14] That the offer was inconsistent with the alleged contractual
relationship between TAG and Fisherman Fresh was apparent from the

two references to ‘your seller’. These made it glaringly obvious that TAG
was claiming to be the broker for the owners of the Qavak. Fisherman
Fresh was in the same position as any potential purchaser responding to
an advertisement and expressing interest in purchasing the goods
advertised for sale. A comparable example would be a potential purchaser
responding to an estate agent’s advertisement of a house for sale.
Expressing interest, inspecting the property or submitting an offer would
not give rise to a contractual relationship between the potential purchaser
and the agent. The potential purchaser would believe, and be entitled to
believe, that the agent had a mandate from the seller and that any question
of commission would be a matter between the seller and the agent and no
concern of the purchaser.

[15] The position would be different if the services of a broker were
employed to find a vessel for a potential purchaser. Such a situation had
occurred a few months earlier, when TAG was employed to find a vessel
for another South African fishing company (J & D Ship Group). That had
been at the end of May or early June 2017. That is when it discovered the
Qavak advertised for sale on another website. This led to some
communication between Mr Cilliers and Mr and Mrs Donohue, to which I
will revert, but TAG’s client was not forthcoming with an offer and the
matter fell away.

[16]  Mr Cilliers submitted the offer to Mr Donahue, who rejected it
because he had another offer for 550 000 euros. Thereafter there was an
exchange of emails between Mr Cilliers and Mr Donohue. Despite his
lack of success up to this stage Mr Cilliers ended this exchange by
saying:
‘She is a great vessel I will try to push for 600k let’s see?’

Needless to say that was entirely inconsistent with his acting as broker on
behalf of Fisherman Fresh. An agent for a potential purchaser may
legitimately suggest to the client that a sale will only be possible if a
higher price is offered, but an endeavour to push the offer up above the
existing asking price serves only the seller’s interests. Nonetheless it was
what Mr Cilliers did. He wrote to Mr van Heerden informing him of the
offer at 550 000 euros and said:
‘If you have a budget I would suggest a strong counter?’
There was no response to this suggestion.

[17] These exchanges were inconsistent with the conclusion of a
contract between TAG and Fisherman Fresh. Far from establishing a
prima facie case of the existence of such a contract, they established quite
clearly that there was no such contract. The additional factors referred to
by counsel, such as that the Van Heerdens were aware that TAG was a
broker, or that the offer provided for the deposit to be held by TAG,
added nothing to the case. They were precisely what was to be expected
from a ship broker acting on behalf of the owners of a vessel and trying to
bring about a sale. That is what TAG said it was doing by way of the
advertisement on its website. It repeated it in the letter of intent and in the
offer to purchase, both of which it drafted. The inevitable conclusion is
that TAG did not make out a prima facie case for the arrest of the vessel
on the basis of a contractual claim for commission.

[18]  TAG sought to rely upon the judgment of Wessels J in Benoni
Produce & Coal Co Ltd v Gundelfinger5 and in particular the following
passage:

5 Benoni Produce & Coal Co Ltd v Gundelfinger 1918 TPD 453 at 459 and 460-461. See also Jacobs
Levitatz and Braude v Kroonstad Roller Mills 1921 OPD 38.

‘It is no doubt true that a broker who approaches a buyer or seller acts in the first
instance as the agent of the person who employs him but directly the other party is
aware of the fact that he is a broker, he becomes the agent of both parties not with a
plenary power to bind both parties as he chooses but to communicate between them
until they are ad idem.’
From this counsel sought to fashion an argument that, once the Van
Heerdens knew that they were dealing with a broker, TAG was acting as
agent for both parties and this entitled it to claim commission from them.
The submission was that Fisherman Fresh had authorised TAG to
represent it in negotiating the sale of the vessel and had thereby become
the agent of both Fisherman Fresh and Donohue Fishing and entitled to
claim commission from both.

[19] The argument was misconceived. It defied the basic principle set
out in para 8 that the right to claim commission must flow from an
agreement between broker and client. The Benoni Produce case was
concerned with the legal effect of broker’s notes furnished by a broker to
the seller of goods and a potential purchaser. The question was whether
the broker’s notes constituted a binding contract, even if one of the
parties had not expressly agreed to their terms. The court held that they
were not and that it was permissible to go behind them to determine
whether there was consensus ad idem between the parties.

[20]  The statement that the broker ‘becomes the agent of both parties’
related only to the broker’s obligation to communicate to each of the
parties what the other was saying. The broker was the jointly chosen
channel of communication between seller and purchaser, but that had
nothing to do with which of them would be liable to pay for the broker’s
services. The judgment did not discuss that issue, which is hardly

surprising, as the case did not concern commission, but involved a
dispute between buyer and seller about whether a binding contract had
come into existence. Even where, for some limited purposes, such as
communication between the parties, the broker is an agent for both
parties, the position remains that brokers are primarily the agent of the
party that employs them and gives them their mandate.6 It is to their
mandatary that the broker must look for their commission. If the broker is
unwise enough to become involved in a transaction without securing an
agreement by either party to pay commission, no right to commission will
arise on the successful completion of the transaction.

The contractual claim for damages
[21] As explained by Mr Cilliers in his affidavit, TAG argued that it had
concluded a brokerage agreement with Fisherman Fresh in terms of
which it had the duties alleged in relation to the contract under the
contractual claim. The immediate difficulty with this contention was that
once one arrived at the conclusion that there was no prima facie case of
the existence of any such contract, there was no basis for holding that
there was a contract that could be breached.

[22] Counsel strove to overcome this hurdle by contending that, even in
the absence of any contract for TAG to act as broker on behalf of
Fisherman Fresh, there was what he termed a limited exclusivity
agreement, not amounting to a sole mandate. The essence of this
agreement was that once Fisherman Fresh and Donohue Fishing were in
communication with one another over the possible purchase of the vessel,
using TAG as the means of communication, they were contractually

6 De Villiers and Macintosh, op cit, 224.

bound not to employ other brokers to conclude the sale and would not do
anything to frustrate TAG’s opportunity to earn commission.

[23] Counsel identified certain factors that he submitted supported an
inference that such a contract had been concluded at the requisite prima
facie level. These were, first, the nature of TAG’s business as a broker;
second, that it had developed a website and a data base of vessels that
were actually or potentially available for sale in the market as well as a
data base of actual or potential buyers; and third, that the data base was
the trigger for Fisherman Fresh and Donohue Fishing coming together.
From this he sought to contend for an inference of the existence of a tacit
agreement providing for limited exclusivity.

[24]  None of these factors can be divorced from those already
discussed in regard to the contention that Fisherman Fresh had appointed
TAG as its broker to negotiate the purchase of the vessel. The argument
wavered at times between a contention that limited exclusivity was a tacit
term of the alleged contract for brokerage services, and one that it was an
independent contract. An argument based upon a tacit term was doomed
to fail in the light of the conclusion that there was no prima facie proof of
the existence of a brokerage contract. One cannot have a tacit term unless
there is a contract of which it forms part.

[25] Insofar as the argument was based upon a tacit agreement, the
requirements for such an agreement are that the person proposed to be
fixed with the tacit agreement must be aware of all the circumstances
connected with the transaction; their actions must not be equivocal and

the tacit contract must not extend to more than the parties contemplated.7
Even at the level of a prima facie case these hurdles were not surmounted.
Fisherman Fresh were not aware that TAG advertised the Qavak on its
website without the authority of its owners, Donohue Fishing. It thought
that it was communicating with the owner of the vessel via the latter’s
broker, when it was not. The proposed contract extended beyond anything
Fisherman Fresh could have contemplated at the time of these dealings.
Its only contemplation was that it was dealing with the owner’s agent
who was advertising the Qavak for sale. There was thus no unequivocal
conduct by Fisherman Fresh indicating an intention to appoint TAG as its
broker. The effect of the contention was that when a prospective
purchaser deals with a broker of any type, once there has been some
interaction the purchaser is disentitled to deal through another broker.
That is manifestly not the law, as countless cases involving disputes over
the obligation to pay commission to estate agents in precisely that
situation demonstrate. For all those reasons the argument based upon a
limited exclusivity agreement must fail. There was no evidence that, if
believed at a trial, could lead a court to conclude that such an agreement
existed.

Unlawful interference with TAG’s contract with Donahue Fishing.
[26]  A recognised form of delictual liability under this head is where a
third party induces a party to a contract to breach its contract with the
complainant.8 The cause of action advanced under this head was that by
dealing with Donohue Fishing through another broker, Fisherman Fresh
had unlawfully interfered with TAG’s brokerage contract with Donohue
Shipping. It contended that this resulted in TAG losing the sale and being

7 Plum v Mazista Ltd 1981 (3) SA 152 (A) at 164A-C.
8 Masstores (Pty) Ltd v Pick n Pay Retailers (Pty) Ltd [2016] ZACC 42; 2017 (1) SA 613 (CC); 2017
(2) BCLR 152 (CC) para 3.

deprived of its commission. The lost commission was said to constitute
the damages suffered.

[27]  Essential to prima facie proof of this claim was prima facie proof
of the existence of a contract between TAG and Donahue Fishing. Absent
such a contract, the claim of unlawful interference was bound to fail. The
evidence in support of it must be examined. In 2015 TAG had been asked
by its Norwegian associates to list the Qavak on its website. There was no
evidence as to the basis upon which this was done or that TAG had any
dealings with either Mr or Mrs Donohue. In any event nothing came of
this listing.

[28] In May or June 2017 TAG was looking for a fishing vessel for its
South African client, J & D Ship Group. Mr Cilliers came across the
Qavak on a website advertising fishing vessels and sent an email to Mr
Donohue on 3 June 2017 advising that he was developing a possible
purchase of the vessel for South African clients and asking for certain
information. Mrs Donohue replied to his enquiry saying that the sale price
was 400 000 euros or nearest offer. Mr Cilliers sent some further emails
to Mrs Donohue that day, but received no reply. Nothing came of these
dealings because his clients did not make an offer or seek to take the
matter any further.

[29] Mr Cilliers then decided to list the Qavak for sale on TAG’s
website. There was no evidence that he did this with the consent of the
Donohues or Donohue Fishing, or that they even knew about it. He
furnished no explanation for having done this. Mr van Heerden responded
to this advertisement in the manner already described. I will pick up the
tale from the stage where Mr Cilliers submitted the offer to purchase to

Mr Donohue. Prior to that there was no evidence of any communication
between Mr Cilliers and the Donohues that would support a conclusion
that he had a mandate from Donohue Fishing to find a buyer for the
vessel on their behalf.

[30] Mr Donohue’s response to the offer to purchase was to say that he
had a much larger offer on hand and another potential buyer who had
indicated that he would pay 550 000 euros ‘so I think we are too far
apart’. Slightly aggrieved by this, Mr Cilliers responded saying that in the
light of his conversation with Mrs Donohue on 3 June he had assumed
that the price they were looking for was much lower and, had he known
they were asking more than he had then been told, he could ‘guide on the
same which needed to include my commission as well’. Mr Donohue’s
response was to say that his wife had made a mistake and, in the light of
the interest that had been shown in the vessel, the price had increased. He
apologised for any inconvenience caused.

[31] This answer brought forth the spirited response by Mr Cilliers
mentioned in para 16 that he would ‘push for 600k’. Mr Donohue replied
the following day and explained that the potential new owners of the
vessel were trying to arrange for its delivery and finalising the paperwork.
They were serious about the purchase and had been to Ireland three times
to view the vessel. He ended his email as follows:
‘I only have until maybe Tuesday to sign the agreement. So the situation I am in is if
your clients come over and I prolong the deal it could mean the other buyers may
become impatient and walk away and I can’t risk that.
Sorry for any inconvenience caused.’ (Emphasis added.)
Even the dogged Mr Cilliers recognised that this was the end of the road
and replied:

‘Good luck with the transaction. Should anything change we can engage. In the
meantime I will look for another 2 candidates similar in size.’

[32]  Two things were apparent from this exchange. The first was that
Mr Donohue understood that Mr Cilliers was acting as broker on behalf
of Fisherman Fresh in engaging with him over the possible purchase of
the Qavak. That is why he referred to them as ‘your clients’. The second
was that Mr Cilliers intended to pursue efforts to ‘find’ a vessel for
Fisherman Fresh even though they had never asked him to do so. This
was of a pattern with his decision to list the Qavak on TAG’s website
without seeking any authorisation from Donohue Fishing. Both
reinforced the understanding that TAG did not have an agreement with
Donohue Fishing to act as its broker to find a purchaser for the Qavak.

[33] Counsel submitted that the reference to the price including his
commission, in Mr Cilliers’ email to Mr Donohue referred to in para 30,
supported a contention that commission would be payable on a successful
sale resulting from his introduction of Fisherman Fresh. The problem is
that there was nothing to convey to Mr Donohue that the commission
would be payable by Donohue Fishing. His understanding was clearly
that Mr Cilliers was acting on behalf of Fisherman Fresh, so any
reference to commission would not have been understood as referring to
Donohue Fishing paying commission.

[34] A further factor on which counsel relied was that, to the knowledge
of Donohue Fishing, TAG was a ship broker earning its living as such.
All that is true, but the problem with the submission was that, by its own
conduct in listing the Qavak for sale without obtaining a mandate from
Donohue Fishing, TAG fell between two stools. In relation to potential

purchasers, such as Fisherman Fresh, it appeared to be the broker acting
for the sellers, and in relation to Donohue Fishing, it appeared to be a
broker acting on behalf of a potential purchaser. On Mr Cilliers’ evidence
it had not sought or obtained a mandate to act in that capacity from either
of the two parties. It was submitted that Mr Donohue should have told Mr
Cilliers that Donohue Fishing had employed another broker to sell the
Qavak, or should have referred his enquiries to that broker in Norway. I
can see no foundation for either contention. As to the first, Mr Donohue
did not think that TAG was acting on behalf of Donohue Fishing. As to
the second, unless Donohue Fishing had given an exclusive mandate to
the Norwegian brokers, there was no obligation on it to refer prospective
purchasers to it. Nothing prevented it from dealing with or accepting
unsolicited offers from a third party.

[35] Lastly, counsel relied on what he characterised as the evasive
response of both Fisherman Fresh and Donohue Fishing to emails sent to
them by Mr Cilliers after the event. On 24 August Mr Cilliers sent an
email to Mr Donohue saying that he received word through a Norwegian
broker that the Qavak was still up for sale and asked whether ‘your sale
fell through’. Mr Donohue’s response was:
‘The vessel is sold, hope you manage to find another.’

[36]  The suggestion in regard to this reply was that Mr Donohue was
being deliberately coy in not saying that the sale had been to Fisherman
Fresh, particularly in the light of the addition of the words ‘hope you
manage to find another’, which was pointless as Fisherman Fresh was, to
Mr Donohue’s knowledge, no longer in the market for a vessel. Even if
one accepts that he could have been more direct and forthcoming, this
does not take the matter any further. It could not overcome the

fundamental stumbling block that Mr Cilliers entered into these
negotiations without taking any steps to confirm with Donohue Fishing
that it was willing to pay TAG a commission if it successfully introduced
a purchaser who, as a result of the introduction, purchased the vessel.

[37]  From the side of Fisherman Fresh, counsel pointed out that Mrs
van Heerden signed the sale agreement on 18 August 2017 only three
days after Mr Cillier’s final communication with Mr Donohue. On 19
August Mr Cilliers sent Mr van Heerden details of a Norwegian Freezer
vessel as a suggested alternative to the Qavak, but received no reply to his
email. Three days after that he sent an email to Mr van Heerden asking if
there had been any feedback on the last offers and saying that he had
checked with the owners of the Qavak, whether they had managed to sell
it.9 Again there was no reply. Mrs van Heerden said in her replying
affidavit that she was in Ireland when the second email came in and in
any event was under no obligation to respond to it.

[38] Counsel’s submission was that the failure to respond to these
emails and to say that Fisherman Fresh had purchased the Qavak through
the intervention of another broker, demonstrated a ‘guilty’ frame of mind
and knowledge that in some way they were acting in breach of TAG’s
rights. In my view, this is far too tenuous a connection to establish the
case his client was trying to make. A prospective customer who has
viewed a house with one agent is not under any obligation not to view it
with a different agent or not to deal with the seller through the second
agent. There are countless cases demonstrating that reality and it was not

9 There was no evidence that he had in fact done this and the only communication referred to in Mr
Cilliers’ affidavit was an email dated 24 August 2017.

suggested that ship brokers are in any different position from estate
agents in that regard.

[39] To sum up, TAG failed to make a prima facie case that it had
concluded an agreement with Donohue Fishing to act as broker on its
behalf to find a purchaser for the Qavak. Its case against Fisherman Fresh
for wrongful interference with that contract accordingly fell at the first
hurdle. In my view it would also have fallen at the hurdle of showing that
any such agreement was exclusive in either the normal sense of a sole
mandate or the more restricted sense of partial exclusivity advanced by
counsel. Mr Cilliers’ evidence did not even attempt to establish the
existence of a sole mandate and was inconsistent with it, as he knew that
as recently as June 2017 the vessel had been advertised on another
website and through another broker. Unless a sole mandate had been
given, Fisherman Fresh were entitled to deal with Donohue Fishing
through any agent acting on its behalf and that is what it did. That could
not constitute the wrongful interference with contractual relations on
which this claim was based. The allegations of collusion between
Fisherman Fresh and Donohue Fishing to deprive TAG of its commission
were not justified even on the basis of a prima facie case.

Result
[40] The appeal is dismissed with costs.

___________________________
M J D WALLIS
JUDGE OF APPEAL

Appearances

For appellant:
D Cooke
Instructed by:
Thomson Wilks Inc, Cape Town;
Honey Attorneys, Bloemfontein.

For respondent:
R G Buchanan SC
Instructed by:
Greyvensteins Attorneys, Port Elizabeth;
Kramer,
Weihmann
&
Joubert
Attorneys,
Bloemfontein.