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[2010] ZAWCHC 571
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Beetle v Phyfer (A77/2010) [2010] ZAWCHC 571 (24 November 2010)
3
IN THE HIGH COURT OF
SOUTH AFRICA
(WESTERN CAPE HIGH COURT,
CAPE TOWN)
CASE NO.: A77/2010
In
the matter between:
BEST
BEETLE
…....................................................................................
Appellant
and
CANDIDE
PHYFER
…........................................................................
Respondent
JUDGMENT DELIVERED ON
WEDNESDAY, 24 NOVEMBER 2010
JAMIE
AJ:
[1] This is an appeal
against a judgment in the Magistrate's Court for the District of
Kuils River where summary judgment was granted
against the Appellant
in the sum of R5 000,00, together with certain ancillary relief.
[2]
The facts of this matter may be simply stated:
[3] At all material times
the Plaintiff was the owner of a deregistered (scrapped) 1974 model
Volkswagen Beetle. In and during December
2008 the Defendant took
possession of the Beetle. Subsequently thereto, and in December 2008,
the Plaintiff, represented by one
Marina Phyfer, sold the Beetle to
the Defendant in terms of a verbal agreement for a purchase price of
R5 000,00. The Defendant
remains in possession of the Beetle, but has
not paid the aforementioned purchase price. The Defendant does not
tender the return
of the vehicle to the Plaintiff.
[4] On the Appellant's
version it was a term of the agreement of sale that the purchase
price would be paid against the supply and
execution of the
applicable original documentation required for the transfer of the
vehicle, including the notification of change
of ownership, duly
signed, and the current license documentation.
[5]
The summons in the Court
a
quo
was
accompanied by a copy of the certificate of deregistration as well as
a copy of the license documentation indicating that the
vehicle had
previously been registered in the name of the Plaintiff. The summons
also tendered, against payment of the purchase
price, delivery of the
signed transfer documentation in respect of the Beetle.
[6] In the affidavit
opposing summary judgment the Appellant raised two defences, viz:
That it had not
contracted with the Plaintiff at all but with the aforementioned
Marina Phyfer;
That it had a
counterclaim for unliquidated damages against Marina Phyfer in
respect of alleged wrongful conduct on her part in
seeking the
intervention of the South African Police Services when payment by
the Appellant was not forthcoming.
[7] A person may conclude
a contract on behalf of an undisclosed principal. According to our
law a legal bond is created between
the principal and the other
contracting party once the identity of the undisclosed principal is
revealed and the principal then
seeks to enforce the contract.
1
[8] If however the
identity of the contracting party is a material factor, then the
party who did not know with whom he or she was
contracting would be
able to avoid the contract.
2
[9] In the present case,
it is not suggested by the Appellant that the identity of the party
with whom it was contracting was material,
or that, but for knowledge
of the true identity of the owner of the vehicle, it would not have
contracted to purchase the vehicle
for the aforementioned purchase
price.
[10]
Accordingly, I am in agreement with the Respondent and the Court
a
quo
that
this contention does not raise a defence cognisable in law, and that
it accordingly did not serve to prevent the grant of summary
judgment
in this matter.
[11] Regarding the
supposed counterclaim, it appears that all that Marina Phyfer did was
to seek the assistance of the South African
Police Services when the
Appellant failed to make payment as it had undertaken to do. There is
no allegation that she acted maliciously.
Furthermore, and entirely
destructive to the Appellant's case in this regard, is the failure of
any allegation that she acted with
the knowledge, or at the instance,
of the Plaintiff.
[12] Accordingly, this
ground too fails to disclose any defence to the Plaintiff's claim. In
short, and should the Appellant be
aggrieved at the conduct of Marina
Phyfer, it remains open to it to pursue such remedies as it may be
advised to against her.
[13] In the
circumstances, I am satisfied that the Appellant failed to disclose a
defence to the Plaintiff's claim for summary judgment,
and that
summary judgment was accordingly correctly granted.
[14] The appeal is
accordingly dismissed with costs.
JAMIE, AJ
I agree.
E.
MOOSA
1
Cullinan
v Noordkaaplandse Aartappelkernmoerkwekers Kooperasie Bpk
1972(1)
SA 761 (A) at 767 H to 768 A and 770 H to 771 A.
2
Bird
v Sumerville & Another
1963(3)
SA 194 (A) at 204 G.