Kgopana v Matlala (SCA) (unreported case no 1081/2018, 2-12-2019) (Van der Merwe JA (Petse DP and Leah, Wallis and Mocumie JJA concurring))

During July 2015, one Kgopana, won a prize in the National Lottery that amounted to R 20 814 582,20. A number of months after Kgopana’s winnings were received, he sent a WhatsApp message to Ms Matlala, who is the mother of one of his seven children.

The message by Kgopana reads: ‘[i]f I get 20m I can give all my children 1m and remain with 13m. I will just stay at home and not driving up and down looking for tenders’.

The Limpopo Division of the High Court in Polokwane, concluded that the content of the message was clear and unequivocal and contained an offer that was ‘certain and definite in its terms’. It held that an offer had been made ‘with the necessary animus contrahendi’ and that the respondent had ‘readily accepted the offer’. The court also ruled that the appellant was contractually liable in accordance with the message, even if he might not have intended to make an offer to contract.

Moreover, the court, per Makgoba JP, found that the WhatsApp message sent by Kgopana constituted a valid offer. Accordingly, Kgopana was ordered to make payment as set out in his WhatsApp message.

Legal question

The issue in the appeal at the Supreme Court of Appeal (SCA) is whether a WhatsApp message sent by Kgopana to the mother of one of his seven children constituted an offer, which on acceptance could give rise to an enforceable contract.

Judgment

It follows that the question in this case is whether in the context thereof, the message conveyed an offer animo contrahendi. The admissible context was that Kgopana consistently denied having won a prize in the National Lottery. The message was sent in response to a statement that she knew that he had won the prize. It, therefore, constituted a denial that he had done so.

The context thus strongly suggested that the appellant never intended to agree to part with a portion of his winnings. And in its terms, the message related what the appellant could possibly do in the hypothetical future event of him receiving R 20 million. It set out what the appellant might do if he received R 20 million. In respect of the manifestation of the intention of the respondent it is significant that she never responded to the message and did not immediately claim payment.

The SCA held that the message clearly did not contain an offer that could on acceptance thereof be converted into an enforceable agreement. Therefore, this is also not a case where the offeror’s true intention differed from his expressed intention.

Kgopana subjectively had no intention to contract and the message did not suggest otherwise. Thus, there was no room for the application of the doctrine of quasi-mutual assent.

Pertinent legal principle

True agreement or consensus can generally only be determined by an examination of the external manifestations of the intention of the respective parties.

Nonhlanhla Mtshali LLB (UJ) is a legal practitioner at Kannigan Attorneys in Johannesburg.

This article was first published in De Rebus in 2020 (March) DR 31.