"If I get R20 million I can give all my children R1million and remain with R13million. I will just stay at home and not driving up and down looking for tenders."
This is the WhatsApp message, which K sent to the mother of one of his biological children. In July 2015, K won over R20 million in the National Lottery. After winning the Lotto, he sent the above text to M and the court had to decide whether or not the message constituted an offeranimo contrahendi, that is, whether there was an intention by K to contract with M.
In terms of the laws of contract, provided the terms of an offer are not illegal, once an offer is made and is accepted, it gives rise to an enforceable contract. An offer can be made in writing, digitally or orally.
M and K were in a romantic relationship, which resulted in the birth of a child. The relationship however ended in 2003 and K was required to pay maintenance to M for the child. After winning the Lotto, K then contacted M and told her that due to ill health he was leaving his employment and that would pay her R100 000,00.
This payment was to be in full and final settlement of his maintenance obligations for the child, using the proceeds of his pension benefits. M accepted the proposal. The parties agreed to meet at the maintenance court to record their settlement.
At the maintenance court M said she had heard that K won R20 million in the Lotto, which K denied. He paid the amount of R100000 to M and made no further maintenance payments to M.
Later when M again questioned K's windfall of R20 million, he sent her the What'sApp message above. M then sued K for R900 000 using the What'sApp message as the basis of an accepted offer by him to pay R1million to her for the child.
K at first denied winning the Lotto but later admitted that he did win. He did however specifically deny making an offer to M so as to constitute a contract. The trial court found that there was a firm contract in place, and granted judgment to M.
K took it on appeal to the Supreme Court of Appeal who set aside the trial court's decision. In December 2019, the SCA said that true agreement or consensus can generally only be determined by an "examination of the external manifestations of the intention of the respective parties".
The Court said based on K's persistent denial that he won the lottery, it could never be found that he intended to part with a portion of his winnings. The SCA found that the What'sApp message did not contain an offer that upon acceptance become an enforceable agreement.
The court recorded that it found K's conduct to be morally reprehensible and that it was not in the interests of the minor child but that it did not detract from the fact that the What'sApp message did not contain an offer which could be used against him.