Metal Tank Industries (Pty) Ltd v Phillip Reynolds No. And Others (CIV/APN 324 of 99) [2000] LSCA 6 (10 April 2000)

IN T HE H I GH C O U RT OF L E S O T HO In the matter between: CIV/APN/324/99 M E T AL T A NK I N D U S T R I ES (PTY) L TD A P P L I C A NT a nd PHILLIP R E Y N O L DS N O. S Y M O UR C L Y DE H A R L EY N O. -and- T HE M I C H A EL J A M ES O R G A N I S A T I ON C C. 1ST 2ND R E S P O N D E NT R E S P O N D E NT 3RD R E S P O N D E NT J U D G M E NT Delivered by the honourabele Mr Justice W CM M a o u tu on the 10th day of April 2000 On the 11th August 1999, applicant brought the following application: " 1. T he 1st 2nd a nd 3rd R e s p o n d e n ts are ordered to h a nd to the Applicant the g o o ds auctioned as items: 9,10,11,12,13,14,15,16,17,25,26,29,34,35,36,37,38,39,40,41,42,43- 44,59,60,61,62,63,64,65,67,68,69,70 a nd 71 on the auction held by the 3rd R e s p o n d e n ts on instruction of the 1st a nd 2nd R e s p o n d e n ts on the 21st of July 1 9 99 at M a f e t e n g, M a s e ru in the insolvent of H i g h v e ld C e r a m i cs (Pty) ltd (in liquidation) against p a y m e nt by Applicant of the s um of R 1 0 1 , 3 0 0 . 00 plus 1 4% V A T. 2. T he 1st and 2nd Respondents are ordered to p ay the costs of the Application jointly and severally, o ne paying the other to be absolved. 3. Further and/or alternative relief. T he sale w as governed by conditions that w e re spelt out in the auction catalogue. This sale w as to be held at Mafeteng on the 21st July 1999 at 10.30 a.m. It s e e ms f r om the submissions that the sale w as held, but it might not h a ve been in M a f e t e ng but s o m e w h e re in Lesotho. This fact does not s e em to be of importance. W h at is not denied is that the sale proceeded but it w as stopped after applicant h ad bought s o me of the auctioned goods. Applicant says respondents cancelled the sale (over the objections of applicants) a nd refunded deposits to the bidders. Respondents. says it proposed to the bidders t h at the sale be cancelled a nd it w ar cancelled. It is n or true (according to respondent) that applicant ever objected. T he following d ay applicant tendered p a y m e nt by letter and d e m a n d ed the g o o ds it h ad purchased. T he items that are being claimed in this application w e re part of the g o o ds that h ad b e en offered for sale. There is no dispute these g o o ds had been k n o c k ed d o wn in favour of the applicant as the highest bidder by the auctioneer. There is no dispute that applicant had b e en ready to p ay the R 1 01 300-00 plus V AT or Sales T ax and take charge of the g o o ds w h en the sale w as cancelled. 1 specifically asked Mr F i s h er whether it w as respondent's case that applicant failed to p ay for the g o o ds immediately after the sale and he said no. / T h e re is s o me dispute of w h at h a p p e n e d. R e s p o n d e n ts say applicant agreed to the cancellation of the sale, while applicant says it did not. A p p l i c a nt says it objected to respondent cancellation of the sale while respondents say applicant n e v er raised a ny objection a nd accepted respondents cancellation of the sale a nd w a i v ed his rights to the g o o d s. In short applicant claims the g o o ds that he has b o u g ht at an auction. T he conditions of the sale w e re the following: "1. T he Auctioneer's sole obligation a nd responsibility shall be to exhibit g o o ds placed with h im a nd solicit offers or bids in respect thereof in s u ch m a n n er a nd at s u ch times as the A u c t i o n e er m ay determine in his sole a nd unfettered discretion. 2. W h e re the A u c t i o n e er accepts a ny bid or offer, he in d o i ng s o, m e r e ly c o m m u n i c a t es the acceptance of the Seller a nd incucs no contraciual obligation or liability on his o wn behali. 3. T he A u c t i o n e er d o es not m a ke a ny warranty or representation in respect of a ny lot or part thereof. All sales are "Voetstoots" a nd all rights flowing f r om a ny b r e a ch of contract or delict shall be exercised directly b e t w e en the Seller a nd the Purchaser. 4. T he contents of a ny advertisement, catalogue or other p r o m o t i o n al material issued in respect of a ny lot or part thereof is not w a r r a n t ed a nd no bid shall be m a de or accepted other than in t e r ms hereof. 5. T he Auctioneer reserves the right to regulate the bidding a nd to w i t h d r a w, alter or vary a ny lot or parts thereof or v a ry the order of s a m e. 6. U n l e ss the highest bid is for an a m o u nt of less than the reserve or m i n i m um price placed on a ny lot, the highest bidder shall be declared the Purchaser. 7. S h o u ld a ny dispute arise either during the bidding or thereafter the Auctioneer shall in his sole a nd unfettered discretion be entitled to put the lot or lots up again for auction or declare a ny of the disputing parties to be the Purchaser without prejudice to a ny claim w h i ch the Auctioneer or Seller shall h a ve for d a m a g e s. T he Auctioneer's decision shall at all times be final. R i sk in a nd to any lot shall pass to the Purchaser thereof at the fall 8. 9. of the h a m m e r. 10. O w n e r s h ip in a nd to a ny lot shall pass to the purchaser thereof w h en the p u r c h a se price a nd all other a m o u n ts p a y a b le h a ve b e en paid in full notwithstanding that delivery or r e m o v al of a ny article sold has taken place: 11. P a y m e nt for a ny lot purchased shall be m a de by w ay of cash or b a nk guaranteed c h e q ue immediately u p on the conclusion of the sale. S h o u ld p a y m e nt not be so m a de the Auctioneer shall in his sole a nd unfettered discretion be entitled to s u m m a r i ly cancel the sale without prejudice to a ny claim w h i ch the Auctioneer or Seller shall h a ve for d a m a g e s. 12. A R 5 00 fee, payable in a d v a n ce will be levied on a ny sale c o n c l u d ed w h e re the Purchaser requires his invoice to be m a de out to a Financial Institution a nd p a y m e nt is not received u p on the conclusion of the sale. 13. All bids are exclusive of V AT a nd w h e re applicable, V AT will be / added at the current rate to the Purchaser's invoice. 14. The Auctioneer's Vendue Roll or any certificate purporting to be signed by the Auctioneer shall be final and binding and shall be conclusive proof of anything contained therein for the purposes of litigation, provisional sentence, summary or default judgements. 15. If the Auctioneer or any employee or associate is requested to bid or make any offer by a Buyer such bid or offer will at all times be made subject to the provisions hereof. 16. The Purchaser chooses as his domicilium citandi et executandi, the address given by him on the Buyer's card. 17. Either the Seller or the Auctioneer shall be entitled to institute action against the Purchaser in any Magistrate's Court having jurisdiction over the Purchaser notwithstanding that the amount in dispute may exceed the jurisdiction of the Magistrate's Court and the Purchaser consents to the jurisdiction of the Magistrate's Court accordingly Not with standing the aforegoing the Selter or the auctioneer shall be entitled to institute action in the Supreme Court of South Africa and the parties hereto consent to the jurisdiction of the Supreme Court of South Africa (Witwatersrand Local Division) 18. Should the Seller or the Auctioneer institute actions against the Buyer arising out of this agreement any costs which may be awarded against the Purchaser shall be calculated on the scale as between Attorney and own client. 19. These conditions of sale form the sole basis on which the parties transact and no variation, alteration, novation, cancellation of this agreement of any of the terms hereof shall be of any force of effect unless reduced to writing and signed by all the parties concerned." What is not is disputed is that the sale was cancelled after the goods that are being claimed had been bought by the applicant. The respondent's reason was that the goods had been bought too cheaply. The applicant claims respondents acted unilaterally and high handedly in cancelling the sale. Respondents say after they had cancelled the sale, they persuaded applicant to agree to the cancellation, and applicant was persuaded. Applicant (according to respondents) cannot be heard to say he is still entitled to the goods. I must pause here to observe that as Carlisle J said in Shandel & Jacobs & Another 1949(1) SA 320 at 321 "all conditions of sale form a contractual relationship between the auctioneer and the bidding public". I believe, it is precisely for that reason that Mr Fisher for respondent could not argue against any of the conditions of sale. It is also trite law that, the sale at a public auction is concluded at the fall of the hammer Nicolau. v Navarone Investments (Pty)Ltd 1971(3) SA 883 at page 884H. It seems to me that as respondent's counsel conceded, the sale had been complete. His defence is therefore on other grounds. Mr Fischer who appeared for applicant argues that respondent waived his claim to the goods. Mr Ebberson argues that he never did so. Applicant (according to his affidavits) never left respondents in doubt that he was not surrendering the goods that he had bought at a bargain price. Applicant says he left respondents in no doubt that applicant was breaching the contract in terms of which applicant had bought the goods. By agreement the issues in its case were crisply put to me as follows:- Applicant must succeed unless: (a) The sale was lawfully cancelled, and (b) Applicant had by law waived his rights. The court directed Mr Fischer for respondent to be the first to argue as soon as Mr Ebberson for applicant had finished outlining the issues. Mr Fischer had no objection. As his argument proceeded it soon became clear that the sale and the rights of applicant to the goods claimed could normally not have been open to challenge. Respondent's defence could neatly be summarised as that of waiver. Applicant, it was argued, had by conduct agreed to the cancellation of the sale and thereby waived his rights. In other words respondents knew they could not lawfully cancel the sale unless applicant agreed. Applicant agreed according to Mr. Fischer. I have therefore to determine this central issue on the papers as neither of the parties applied for viva voce evidence to be heard. It_is:true that they rec ognised that if the court wanted to hear viva voce evidence; they would have to accept the courts decision. The court will only feel it has to hear viva voce evidence if there is a compelling reason to do so. A bidder who goes to an auction normally has very few rights beyond what he is given by the conditions of sale. Indeed in Volume I of the Dictionary of Legal Words and Phrases by Classen at page 154 there is the following quotation from Grotius Introduction 3-14-30:- "In sales by public auction each bidder is bound by his bid, and he acquires no right if others bid higher." I h a ve already observed that all conditions of sale f o rm a contractual relationship b e t w e en the auctioneer a nd the bidding public. If this is the correct position I am b o u nd not to agree w i th Mr Ebberson's submission that there w as e v er a written contract w h i ch could exclude evidence f r om the parties. T h e re w as nothing h o w e v e r, to stop the parties f r om converting an oral contract into a written o ne if they so desired. C o n s e q u e n t ly Coertzee J in Ex Parte K r a m er 1 9 7 3 ( 4) SA 1 63 at 1 67 G . H. said: "Whilst it s e e ms b e y o nd d o u bt that an oral contract results at the fall of the h a m m e r, I c a n n ot see w hy that oral contract should not therefore be capable of being turned into o ne " m a de in writing" .... But o n ce parties h a ve in fact r e d u c ed the a g r e e m e nt to writing, the d o c u m e nt is, in general, regarded as conclusive as to the terms of their transaction w h i ch it w as intended to record...." Ex parte Kramer d o es not apply to the facts of this case, but clause 19 r e m a i ns as Mr E b b e r s on said an important part of the auction sale. T h at being the position, there c an be no doubt that C l a u se 19 of the conditions of sale applies to this sale although the actual sale a nd the fall of the h a m m er constitute an oral contract. In other w o r ds the written conditions are the rules g o v e r n i ng the sale a nd are written, while the sale itself w as c o n d u c t ed a nd c o n c l u d ed orally. Therefore a m o ng the onuses respondents h a ve to bear is that of o v e r c o m i ng C l a u se 19 of the conditions of sale w h i ch provides: " T h e se conditions of sale f o rm the sole basis on w h i ch the parties transact—and no variation, alteration, novation, cancellation of this a g r e e m e n t — or a ny terms hereof shall be of a ny force or effect unless r e d u c ed to writing a nd signed by all parties." This condition that w as intended to protect the interest of the auctioneer a nd its principals should also apply to those of the purchaser. T he auctioneer h ad the right to put a reserve price and to stop the sale at any time during the sale. It s e e ms to me that in all auction sales the possibility of disputes is an ever present danger because the m o st material portions of the sale are d o ne verbally. T he dispute that is n ow before me is by no m e a ns unusual or unexpected. It is not surprising that clause 19 w as put into the conditions of sales to help w h en p r o b l e ms such as this o ne arises. It w as for Mr Fischer to persuade me that there w e re special reasons or grounds for avoiding the operation of clause 19 of the conditions of sale. I will go over his arguments as I understood them. W as the sale cancelled with applicant's acquiescence? T he sale in respect of the goods for w h i ch bidding h ad not c o m m e n c ed is n ot in issue. I will not (nor anrexpected to) deal with the sale in respect of those goods. If I understood the parties well, there w as no dispute that the g o o ds that applicant claims h ad b e en b o u g ht by applicant as there w as no reserve price a nd he w as the highest bidder. It is not surprising that both parties agree that a sale h ad taken place. T he four operative clauses of the conditions of sale are the following: "5. T he auctioneer reserves the right to regulate the bidding a nd to withdraw, alter or vary any lots or parts thereof or vary the order of the s a m e. "6. U n l e ss the highest bid is for an a m o u nt less than the reserve or m i n i m um price placed on a ny lot, the highest bidder shall be declared the purchaser. "8. T he auctioneer's decision shall be at all times final. " 9. R i sk in a nd to a ny lot shall pass to the purchaser thereof at the fall of the h a m m e r ." On the facts admitted there c an be no d o u bt finality h ad b e en reached. T h e re w e re no disputes that could lead to a ny reconvening of the sale in t e r ms of clause 7 of the conditions of sale. T he auctioneer n e v er altered the g r o u nd rules within the m e a n i ng of clause 5 of the conditions of sale. T he auctioneer also n e v er placed a m i n i m um or reserve price. T he g o o ds w e re duly sold to applicant w ho w as declared purchaser of the g o o ds at the fall of the h a m m e r. My only p r o b l em w h i ch w as no p r o b l em to Mr Fischer w as w h e t h er the p u r c h a se price should not h a ve b e en paid or tendered there a nd then in t e r ms of clause 10. Mr Fisher said 1 could not visit failure to p ay on applicant h a v i ng regard to w h at subsequently h a p p e n ed after the h a m m er h ad fallen in favour of applicant. It w as respondents w ho decided to cancel the sale a nd return the deposits that applicant a nd others h ad paid in order to participate in the sale. That being the case Mr Fischer said he w o u ld not go so far as to say applicant should be f o u nd to be in breach of clause 10. He could only be said to h a ve acquiesced in the cancellation in accepting his deposit. I h ad considerable difficulty with respondent's m a in d e p o n e nt Mr Phillip R e y n o l ds / w ho c l a i m ed to h a ve acted in the creditors interests a nd those of the insolvent throughout. If he w as there in the hall there is no e v i d e n ce of that, b e c a u se he n e v er placed a reserve price as he w as entitled to d o. He s e e ms s u d d e n ly out of the b l ue to h a ve d e c i d ed it w as best if the plant should be sold to a single purchaser. T h is he c o u ld get the auctioneer to do in terms of clause 6 a nd that is not in issue. W h at is the b o ne of contention is w h at h ad already b e en sold. Mr R e y n o l ds put w h at h a p p e n ed as follows: 6-2 At a point in time, I realised that the prices that w e re b e i ng obtained at the auction w e re far b e l ow the market-related value for the insolvent estate assets, essentially a c e r a m ic plant ("the plant"). T he plant w as estimated to h a ve a realisable sale value of R6 million. In the circumstances, it w as clear to me that the auction w as not in the best interests of the creditors a nd the insolvent estate, w h o se interests I am obliged at all times to protect. " 63 At that t i me I w as a nd still of opinion, that selling the plant to a single purchaser in its entirety will best protect the creditors interests. I w as h o w e v er prepared to sell certain assets, not d e e m ed to be part of the plant." Mr R e y n o l ds then g o es on to s h ow that w h en these ideas occurred to h i m, he called on Mr T o ny M u l l er w ho w as the auctioneer a nd put his v i e ws to h i m. He then requested Mr M u l l er to i n f o rm the bidders a nd explain the intention to cancel the sale so that a suitable purchaser of the assets could be sought. M r. H a r l ey a nd Mr M u l l er supported his request. Mr R e y n o l ds says he realised that if a ny of the bidders objected, he w o u ld h a ve to reconsider the intention to cancel the sale. E a ch bidder w as to be r e f u n d ed his deposit. Mr R e y n o l ds d o es not say clearly w h e t h er he w as present w h en M u l l er the auctioneer talked to the successful bidders including Mc G r e g or w ho acted for applicant All he c an say is that M ac G r e g or did not object to h im or to a ny of the respondents. Mac G r e g or accepted the a r r a n g e m e nt a nd collected his deposit a nd left. T he a r r a n g e m e nt ha( b e en that if no suitable purchaser could be found, the g o o ds p u r c h a s ed w o u ld be offered to t h em again by telephone. It s e e ms to me that the person in charge of the auction sale w as Mr T o ny M u l l er as m o re fully appears in paragraph 13 of the affidavit of Mc G r e g o r, the m a in d e p o n e nt of applicant. This auctioneer h ad clearly a nd unequivocally said there w as to be no reserve price a nd this is not denied. T he sale w e nt without a ny hitches until "there w e re no bids for certain items. W h en this h a p p e n e d, the auctioneer stopped auction and informed the bidders that he h ad to consult with joint liquidators n a m e ly first a nd second respondents w ho w e re present at the auction. S ee paragraph 17 of Mc Gregorys affidavit. This fact is admitted in the affidavit of R e y n o l ds at paragraph 5 1. In other w o r ds the s ak w as stopped a nd consultations with other liquidators took place b e c a u se there w e re no m o re bids. It cannot therefore be correct that R e y n o l ds of his o wn volition called M u l l er in order to put his fresh ideas to him. If R e y n o l ds says he w as in the hall throughout, it s e e ms he w as prepared to let the sale proceed as it w as proceeding. He vaguely says " he realised at a point in t i m e" that things w e re not g o i ng well, the g o o ds w e re g o i ng for a song. W hy he c h o o s es to be so v a g u e, I cannot say. I find h im not being frank at all. It s e e ms he deliberately left the lots to be acquired for very l ow prices while he w as in the hall watching. W h en the rest of the g o o ds w e re not being b o u g h t, he decided on the cancellation of the sale. He w as entitled to cancel the sale in respect to unsold goods. No o ne s e e ms to question that. He d o es not d e ny that he h ad allowed w h at w as saleable to be b o u g h t, but got c o n c e r n ed w h en he realised that w h at w as left of the plant w as unsaleable. T he o n us of p r o of is on the respondents a nd they are very evasive, c a g ey a nd v a g ue about w h at really transpired. W h at I h a ve to determine is w h e t h er in the skeletal w ay they h a ve p r o v ed that the applicant did w a i ve its rights. In respondents' favour is the fact that applicant accepted his deposit b a c k. This deposit h ad b e en paid on the terms w h i ch appear at p a ge 1 of the auction catalogue, w h i ch w as as follows: " T E R M S: A deposit of R 5 0 00 or equivalent Maluti to be m a de by w ay of cash or bank guaranteed cheque on registration, refundable if no purchases made." A deposit according to Wille Principles of South African Law 8th Edition "is a contract w h e r e by o ne person delivers to another a thing for safe k e e p i ng on the understanding that it be returned on d e m a n d ". T he holding of applicants deposit has a significance that is far f r om clear. In a ny event applicant never d e m a n d ed his deposit, it w as offered to h i m. It w o u ld s e em that w h en applicant accepted his deposit back, it could be d e e m ed to h a ve m a de no purchases. C o u ld it be that w h en applicant accepted its c h e q ue b a c k, it w as indeed w a i v i ng its right to the purchased g o o d s? It w o u ld s e em that applicant w as expected to a dd to his M5 0 0 0 . 00 if he b o u g ht for m o re than that a m o u n t. If he b o u g ht for less, the balance w o u ld be refunded. T h at being the case nothing m u ch turns on the acceptance of the deposit that w as tendered to applicant by the respondents. R e s p o n d e n ts h a ve a formidable task of persuading the court that a bargain hunter of the type that attends public auctions could readily forgo a bargain that he h as got out of kindness to creditors or an insolvent. It is m o st u n u s u al for b u s i n e s s m en to surrender a financial a d v a n t a ge without getting anything in return. W h at is e v en m o re u n u s u al (as R e y n o l ds for respondents alleges) is that applicant c o u ld h a ve not h a ve protested at a cancellation of a sale that h ad the effect of d e n y i ng h im the g o o ds he h ad b o u g ht for a bargain price. Applicant denies he did not protest. I n d e ed respondents say they e x p e c t ed applicant a nd other successful bidders to protest. T h ey do n ot suggest that they m a de a ny i n d u c e m e nt that could m a ke a reasonable m an to forgo or surrender the g o o ds that h ad already b e en b o u g h t. As I h a ve already pointed out, it is unlikely that the successful bidders c o u ld not protest w h en a sale w h i ch w as highly favourable to t h em w as b e i ng cancelled. I am alive to the fact that the m o st i m p r o b a b le stories c an be true. Applicant says after m a k i ng his position clear that a valid a g r e e m e nt of sale h ad b e en c o n c l u d ed it w i t h d r ew f r om the conversation that w as taking place, collected the deposit c h e q ue a nd left. T he following d a y, it e m b a r k ed on a course that h as c u l m i n a t ed in these proceedings. E x c e pt for steps taken t o w a r ds litigation, respondents d e ny applicant's version. In its f o u n d i ng affidavit, the applicant insists that M u l l er the auctioneer w e nt outside to discuss (with his colleagues w ho w e re in the b a c k g r o u n d) the best w ay f o r w a rd after bidders w e re no m o re bidding for the rest of the items that h ad b e en offered for sale. In the replying affidavit of applicant nothing is still said a b o ut R e y n o l d s. It is M u l l er w ho is said to h a ve d o ne the talking. This is consistent with applicant's a v e r m e n ts in the founding affidavit. I n d e ed in terms of the conditions of sale, M u l l er is the only p e r s on w ho really matters. I find Muller's failure to m a ke a full affidavit illogical. M u l l er the auctioneer only m a de a confirmatory affidavit of a v e r m e n ts of R e y n o l ds w ho w as not an official at the sale but a virtual bystander or a b a c k r o om operator. E v en R e y n o l ds at p a r a g r a ph 6 of his affidavit confirms that Muller did the talking, he only m a de k n o wn to M u l l er his v i e ws a nd ideas that w e re contrary to h ow the sale w as being run. R e y n o l ds confirms that it w as M u l l er w ho faced a nd talked to the bidders. M u l l er did not really m a ke an affidavit as I believe he o u g ht to h a ve d o ne so in the circumstances of the case. H is short confirmatory affidavit reads: " 1. I am an adult m a le auctioneer. At all material times hereto, I w as the auctioneer in charge of the auction sale held on 21 July 1 9 99 a nd at M a f e t e ng Lesotho. "2. I h a ve read the aftidavit of Phillip W a r d el M o o r r e ss R e y n o l ds to w h i ch this affidavit is annexed. I c o n f i rm the contents of that affidavit to be true a nd correct in so far as it relates to m e ." C o m m on sense dictates that it should h a ve b e en M u l l er w ho m a de the m a in affidavit b e c a u se (as he w as a nd as he rightly states) "at all material times I w as the auctioneer in charge of the auction sale held on 21 July 1 9 99 a nd at M a f e t e ng Lesotho". In other w o r d s, R e y n o l ds h ad no legal role to play at the sale. Mr Fischer submitted that it w as standard practice for o ne d e p o n e nt to m a ke an affidavit on behalf of others a nd the others m e r e ly to confirm w h at that d e p o n e nt h ad said. / W h e t h er an affidavit confirming facts from o ne deponent is appropriate d e p e n ds on circumstances of a particular case—this to me s e e ms obvious. Tedious repetition has to be avoided in all litigation w h e re it can be avoided. B ut a court should not be deprived of the evidence it needs by this procedure. In this case Reynolds is not always clear a nd forthcoming about w h e re he w as w h en certain things w e re d o ne or said. He has g o ne to great length about irrelevancies such as w h at he felt or thought w as the best w ay the sale should h a ve been conducted. He does not even say (if at all he w as there) w hy he let the sale go on (in this m a n n er that w as prejudicial to creditors) until it got to a stage w h e re there w e re no m o re bids and part of the plant w as going to be unsold. R e y n o l ds is also not specific about w h e re he w as w h en Muller relayed their decision to the successful purchasers except saying all the talking with bidders w as in the hall. T he court is being persuaded to a s s u me from his a m b i g u o us affidavit that he heard everything that w as said a nd done. This is a problem that respondents created for themselves w h en they avoided m a k i ng the m a in respondents' affidavit to be that of Muller w ho w as the auctioneer. All sides agree that Muller did the talking and w as present throughout Applicant says Reynolds w as consulted outside the hall along with others w ho w e re interested in the sale in liquidation. T he impression I got from Mr Fischer w as that it is n ow the accepted practice for the m a in deponent to m a ke averments w h i ch m ay even be hearsay, and then get the witnesses w ho have actual k n o w l e d ge of the facts to merely confirm the m a in deponents averments. If such a practice has g r o w n, it is unfortunate, because it is w r o n g. In application proceedings, pleading and evidence are rolled into one. T he g r o w i ng a nd extensive use of application w as never intended to cut c o m e rs in an attempt to save time. Courts still have to be given evidence of g o od quality in order to decide cases brought on motion. Hearsay is and will remain hearsay. T he p r o p e r w ay is for the m a in deponent to depose to facts within his knowledge and give an indication of what witnesses who know and have witnessed events are going to say but let them give the evidence in their supporting affidavits. Any other way is legally untenable, and I genuinely believe is based on a misunderstanding. In Herbstein and Van Winsen The Civil Practice of the Superior Courts of South Africa 3rd Edition page 79, what is expected in application proceedings was neatly stated in the following words: "In application proceedings the affidavits constitute not only the evidence but also the pleadings and therefore while it is not necessary that the affidavits "should set out a formal declaration, or a replying affidavit set out a formal plea, these documents should contain, in the evidence they set out, all that would be necessary at the trial." Certainly, at a trial, the main witness never just says in court that he confirms what has been said by other-witnesses and sits down: In Wigmore On Evidence (1360-1684) Volume V Chardbourn Revision at page 85 referring to Welsh v Rogers 54 US 283, 287 it is said of affidavits: "Testimony thus taken is open to great abuse. At best it is calculated to elicit only such a partial statement of the truth as may have the effect of entire falsehood. The person who prepare the witness and examine him can generally have just so much or so little of the truth, or such version of it as will suit his case." What Wigmore has said is perpetually true. Consequently, although motion proceedings and affidavits are being increasingly been used, we have to guard against abuses of this procedure that is bound to grow with its increasing use. Unfortunately mistakes of this nature may creep into some text books. Therefore as Herbstein & Van Winsen in The Civil Practice of the Supreme Court of South Africa 4th Edition at page 369 have put it "it may be necessary to file affidavits of persons other than applicant who can depose to the facts". This statement of the law is unassailable. But then the learned author adds the following words which have created a misunderstanding because of their ambiguity: "Alternatively, when a deponent includes in his affidavit facts in respect of which he does not have first-hand knowledge he may annex a verifying affidavit by a person who does have knowledge of those facts." If verifying affidavit means an affidavit of a person who can and does in fact depose to the facts, then it is correct. But if these words mean the court may be given pages and pages of hearsay by the party's main deponent, and a person who has knowledge of the facts can merely file an affidaivt saying "I confirm the contents of that affidavir to be true and correct in so far as it relates to me", then the learned authors of Herbstein and Van Winsen The Civil Practice of The Supreme Court of South Africa have not quite hit the nail on the head. The practice is only meant to avoid unnecessary repetition, but not to deprive courts of first hand evidence. I have already said Reynolds has not actually said that he actually heard and saw what occurred between Muller (the auctioneer) and the bidders, he has left this equivocal. He has not stated in uncertain terms that he saw and heard what transpired. It can be argued that he should have seen or heard what transpired. He is contradicted by applicant. The court always wishes to be given the best evidence that is available, lest it smells a rat. We frequently hear of what is called the best evidence rule. The case of /... Germenskapsontwinkkelingsran v Williams 1977(2) SA 692 deals with best evidence rule as a legal concept. In this case I have in mind the quality of evidence as a fact. The way evidence is evaluated is conditioned by the particular facts of a case although the evidence of Reynolds is legally acceptable. It is not the best evidence available on what happened at the sale. I am nevertheless attracted by the following words from King AJ at 497 of Germenskapsontwinkkelingsran v Williams: "The best evidence rule was that a party must always produce the best evidence of a fact available to him and evidence which itself suggested the existence of better evidence of that evidence is inadmissible. The latter class of evidence is called secondary evidence." In modern times the term "best evidence" is seen as misleading. Evidence is often admissible although it is recognised that evidence of an even better quality exists. Such evidence may be in many respects first hand. If the evidence of a person who really knows the facts best is not adduced, it leaves many unanswered questions, especially where~a witness like Reynolds contradict a main player like the applicant. Mullet is accepted by all sides to have been the respondents' decision maker who did all the talkings yet it is Reynolds who is respondent's sole deponent to the facts that should be deposed to by the auctioneer. H ow does a bystander come to give evidence, and the chief official at the auction merely say "I confirm"? In such cases it was said in Northern Mounted Rifles v O 'Callaghan 1909 T. S. 174 that the best evidence must emanate from a public officer. "It must have been made by a public officer in the execution of his public duty, it must be intended for public use, and the public must have access to it". The approach in Northern Mounted Rifles v O 'Callaghan was technical and it dealt with a licence while mine is about the approach I should follow in assessing the weight to be attached to evidence that I am supposed to believe. If my reading of Phipson On Evidence 9th Edition at page 51 is correct, the best evidence rule means that "the evidence must be given of which the nature of the case permits" this rule provides very little practical guidance. At page 53 it was concluded that: "In the present day, then, it is not true that the best evidence must, or even may, always be given, though its non-production may be a matter for comment or affect the weight of that which is produced. All evidence is in general equally receivable." The problem I have with Reynolds averrments are quality rather than receivability. Muller's evidence as auctioneer would have been much more weighty and proper in the circumstances. For Muller to confirm in less than two sentences the evidence of a less weighty quality such as Reynolds' and deny us of his own weighty one has not been particularly helpful. There is no compelling reason for Mutter's failure to make the main affidavit for respondents since his affidavit was sworn to on the 10th September 1999 when that of Reynolds was sworn to on the 9th September 1999. This was almost 30 days after the filing of the application. If then the auctioneer had such a substantial period at his disposal, why does he not tell us what happened himself? Waiver Mr Fischer for respondent nailed his colours to the mast of waiver. He displayed a consciousness of the fact that cancellation of contract might not be his strongest point. A litigant is said to have waived a right, and thereby lose it, if he declines to take advantage of it. De villiers CJ in Stewart v Ryall 5 SC 146 at page 153 said a waiver amounts to "a renunciation of a right, and such renunciation cannot be inferred except from clear evidence. "But waiver is a form of contract and it is necessary there should be an intention to waive" —Roodepoort-Maraisburg Town Council v Eastern Properties (Pty) Ltd. 1933 W LD 224 at 226. It follows therefore that waiver must be an intentional act to waive a right. In this case it was the respondents through the auctioneer (Muller) who decided to cancel the contract of a sale of goods that applicant had already bought. Indeed there was no action that could be deemed to have originated from applicant that could be deemed to be a renunciation of applicant's rights to the goods. At the worst, applicant could be said to have acquiesced. For acquiescence to be inferred clear evidence has to exist. In Collen v Rietfontein Engineering Works 1948(1) SA 413 at 421 -22 Watermeyer CJ said of acquiescence and the problems it might cause:- "...because conduct to constitute an acceptance must be an unequivocal indication of the other party of such acceptance.... Quiescence is not necessarily acquiescence and one party cannot, without the assent of the other, impose a condition to that effect." Waiver is normally pleaded as estoppel. When it is pleaded, it is grounded in surrounding facts that make an inference of personal bar, compelling. Very often among- the grounds is that of delay in enforcing rights, which has ted to the other side acting to its own prejudice. Waiver is also often backed up by existing commercial practice. In this case the practice in auction sales is against respondents. People do not go to such sales to surrender the bargains they have got. In Collen v Rutherford Rietfontein Engineering (supra) at 436 Centlivres JA referring to Laws v Rutherford 1924 AD 261 said:- "...that the onus of proving waiver is strictly on the party alleging it and he must show that the other party in the full knowledge of his right decided to abandon it, whether expressly or by conduct plainly inconsistent with an intention to enforce it." It is therefore this onus that is on the shoulders of the respondents. Mr Fischer concedes in his Heads of Argument that the respondents initial defence was not waiver. He argues that it follows as a matter of course from respondents defence. My reading of Hilsage Investments (Pty) Ltd v National Exposition (Pty) Ltd 1974(3) SA 346 is that the party in whose favour a benefit was put in a contract can waive it. In this case this court is entitled to infer that, even if applicant never said a word, in view of clause 19 of the conditions of sale, applicant was protected, and need not have bothered to argue with respondent. This is particularly so because Reynolds does not say how he came to the conclusion that applicant had agreed to the cancellation. Reynolds merely confines himself to a denial that applicant objected and a bare allegation that bidders agreed to a cancellation. If indeed applicant had, respondents who were aware of clause 19 of the conditions of sale, should have insisted that the cancellation should be in writing in order to be of any legal consequence. Even if clause 19 of the conditions of sale did not exist, I still think respondents have not discharged their onus on the balance of probabilities. Steyn CJ in Hepner v Roodepoort-Maraisburg Town Council 1962(4) SR 772 at 778 DE put what is expected of respondents in a case such as this one as follows "...in the case of waiver by conduct, the conduct must leave no reasonable doubt as to the intention of surrendering the rights in issue". Very often even in business transactions, an express waiver can be withdrawn if the litigant decides within reasonable time in circumstances in which the other side has not acted to its detriment because of the waiver. In such cases Lord Denning MR in WJ Alan & Co Ltd v El Nasr Export & Import Co. [1972] 2 All ER 127 at 140 C observed: "But there are cases where no withdrawal is possible. It may be too late to withdraw; or it cannot be done without injustice to the other party. In that event he is bound by his waiver." In the case before me not only is the circumstantial evidence on waiver weak, it seems to be the applicant (if respondents' submission holds) alone who has gratuitously acted to its prejudice on no reasonably conceivable grounds. I simply am not persuaded on the evidence that applicant did not object. E v en i he h ad not said a w o rd applicant w as b o u nd to succeed h a v i ng regard to clause 19 of the conditions of sale. I therefore grant applicant's application. It is o r d e r e d: " 1. T he 1st, 2nd a nd 3rd R e s p o n d e n ts are ordered to h a nd to the Applicant the g o o ds auctioned as items: 9,10,11,12,13,14,15,16,17,25,26,29,34,35,36,37,38,39,40,41,42,43- 44,59,60,61,62,63,64,65,67,68,69,70 a nd 71 on the auction held by the 3rd R e s p o n d e n ts on instruction of the 1st a nd 2nd R e s p o n d e n ts on the 21st of July 1 9 99 at M a f e t e n g, M a s e ru in the insolvent of H i g h v e ld C e r a m i cs (Pty) Ltd-(in liquidation) a g a m st p a y m e nt by Applicant of the s um of R 1 0 1 , 3 0 0 . 00 plus 1 4% V A T. 2. T he 1st a nd 2nd R e s p o n d e n ts are ordered to p ay the costs of the Application jointly a nd severally, o ne p a y i ng the other to be absolved. For applicant : For respondent: Mr Ebberson Mr Fischer WCM M A Q U TU J U D GE