Respondent denied this, the Applicant, in reply made a new cause of action, alleging the sale of the*business and not the shares, hence the amendment of the Notice erf Motion.
It is clear, from the foregoing that there is confusion in the Applicant's own papers regarding what was agreed upon. The Respondent's allegations throw the true nature of the Applicant's story into further disarray. It is therefor clear that there was no consensus between the parties in casu.
It is important to give heed to the wise injunctions of Caney J. in GODFREY VS PARUK 1965 (2) SA 738 (D) 734 C, quoted by RH .Christie in his work entitled, "The Law of Contract in South Africa, 3rd Ed, Butterworths, 1996, at page 29:-
"Thephrase 'offer and acceptance '...is not to be applied as a talisman, revealing, by species of esoteric art, the presence of a contract. It would be ludicrous to suppose that businessmen couch their communications in the form of a catechism or reduce their negotiations to such a species of interrogatory as was formulated in the Roman stipulatid".
The learned author Christie added the following important excerpt after the above quotation:-
"To which it is only necessary to add that offer and acceptance must never be sought for their own sake, but as aids in deciding whether an agreement has been reached. "
I am of the view that if put to use as aids for determining whether in casu, an agreement was reached, the concept of offer and acceptance would lead to the conclusion that agreement was never reached.
Regarding the inconsistent allegations in paragraphs 6 of the Founding Affidavit and paragraph 6 and 7 of. the reply, which were quoted in full above, Mr Kades argued that the Applicant sought to make out a new case (which is supported by the amended Notice of Motion) in the Replying Affidavit. I quite agree that that indeed is the case.
That course is not permissible and authority against such practice is legion. In this regard, Dunn J. (as he then was) held the following in ROYAL SWAZILAND SUGAR