Kgopana v Matlala

The appellant won a National Lottery prize of R20,814,582.20 in July 2015. He had seven children, including one with the respondent, for whom he paid R1,000 per month maintenance under a consent order. Six months after the win, he sent a WhatsApp message to the respondent stating: 'if I get 20m I can give all my children 1 m and remain with 13m. I will just stay at home and not driving up and down looking for tenders.' This message was sent in the context of the appellant consistently denying he had won the Lotto. The appellant had previously paid the respondent R100,000 in January 2016 from what he claimed were pension benefits, as settlement for maintenance. When the respondent learned he had actually won the lottery, she claimed R900,000 (R1 million less the R100,000 already paid) based on the WhatsApp message. The high court found in her favour, holding the message constituted an offer animo contrahendi that was accepted.

• Whether a WhatsApp message can constitute an offer animo contrahendi (with intention to contract)
• Whether true agreement or consensus ad idem existed between the parties
• Whether the doctrine of quasi-mutual assent applied where the offeror's subjective intention differed from the purported expressed intention
• How context and circumstances affect the interpretation of whether a statement constitutes a contractual offer

1. The appeal is upheld. 2. The order of the court a quo is set aside and replaced with: 'The plaintiff's claim is dismissed. There is no order as to costs.' There is also no order as to costs in the Supreme Court of Appeal.

A statement does not constitute an offer animo contrahendi where, examined objectively in its context and content, it does not manifest an intention to contract. Context and circumstances surrounding a communication are critical in determining whether it constitutes a contractual offer. A hypothetical, conditional statement expressed in future tense ('if I get... I can give...') made while denying the very condition on which it is premised does not constitute an offer capable of acceptance. The doctrine of quasi-mutual assent only applies where the offeror's subjective intention differs from the objectively ascertained expressed intention; it has no application where both the subjective intention and the objective manifestation align in showing no intention to contract. True agreement or consensus ad idem can generally only be determined by examining the external manifestations of the intention of the respective parties, applying an objective test.

The court made observations about the appellant's morally reprehensible conduct, which contributed to the institution of the action in the interests of the minor child. The court noted that the maintenance officer had correctly indicated that parties could not finally determine the rights of a minor child to receive maintenance from his father. In exercising its discretion on costs, the court observed it would be detrimental to the best interests of the child to make a costs order against the respondent, and that it was not unreasonable for the respondent to have instituted the action in the interests of the minor child or to defend the judgment on appeal. The court described the particulars of claim as 'not a model of clarity.'

This case is significant in South African contract law as it clarifies the principles for determining when a communication constitutes an offer animo contrahendi, particularly in the context of modern electronic communications like WhatsApp messages. It reinforces that both context and content must be examined objectively to determine whether a statement manifests an intention to contract. The judgment emphasizes that hypothetical or conditional statements, particularly those made in the context of denying the very premise on which they are based, cannot constitute offers capable of acceptance. It also clarifies the limited scope of the doctrine of quasi-mutual assent, confirming it only applies where there is a divergence between subjective and expressed intention, not where both align in showing no intention to contract. The case illustrates the application of the will theory versus reliance theory in South African contract law and provides guidance on interpreting informal communications in contractual disputes.