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[2013] ZAGPPHC 229
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Herbst v Riley (A404/2010) [2013] ZAGPPHC 229 (26 July 2013)
NOT
REPORTABLE
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTH
GAUTENG, PRETORIA)
DATE:
26/08/2013
CASE
NO: A404/2010
In
the matter between:
GRAVETT
HERBST
.................................................
APPELLANT
And
T
RILEY
......................................................................
RESPONDENT
JUDGMENT
MAKGOBA,
J
[1]
This is an appeal against a judgment of the magistrate's court,
Lydenburg wherein the trial court gave judgment in favour of
the
respondent (plaintiff in the court a quo) for payment of the sum of
R27 360.00 with costs. The respondent had issued summons
against the
appellant whom he cited as the first defendant and a close
corporation known as SILENT SALESMAN CC as the second defendant.
[2]
The appeal was initially heard on 9 September 2011 before ZONDO and
WEBSTER JJ. Our brothers could not agree in their decision
and the
matter was referred to the full bench for further hearing.
[3]
The respondent's cause of action was founded upon a verbal sale
agreement which the respondent had allegedly concluded with
the
appellant, alternatively with the close corporation and further
alternatively the appellant and the close corporation. The
appellant
denied that he concluded the agreement with the respondent and
similarly that he concluded the agreement with the respondent
as an
employee or agent of the close corporation.
[4]
It is convenient in this matter to set out the allegations as they
appear in the summons and particulars of claim:
The first defendant is Mr Gravett
Herbst an adult businessman of ABC Cash Loans, Kantoor Street,
Lydenburg.
3.
The
second defendant is Silent Salesman CC with registration number
2003/0804088/23 a close corporation registered in terms of the
laws
of South Africa trading as Gimme Power and trading at 23 McKenzie
Street Florida Park.
4.
During
or about April 2008 the first defendant alternatively the second
defendant, alternatively the first and second defendants
entered into
a verbal agreement with the plaintiff on the following terms:
4.1
first defendant alternatively the second defendant, alternatively the
first and second defendants will supply the plaintiff
with 2X1200
watt invertors.
4.2
that the plaintiff will pay the amount of R27 360.00 for the
invertors.
7.
On
the 22 April 2008 the Plaintiff paid the amount of R27 360.00
directly into the account of the second defendant on instructions
of
the first defendant.
8.
The
first defendant on behalf of the second defendant took repossession
of the equipment on the 7 July 2008 but the first defendant
alternatively the second defendant alternatively the first and second
defendants refuse to reimburse the Plaintiff in the amount
of R27
360.00 being the purchase price the Plaintiff paid.
9.
Therefore
the first defendant alternatively the second defendant; alternatively
the first and second defendants became liable to
the Plaintiff in the
amount of R27 360.00.”
[5]
The summons in the magistrate court was issued and served on both the
first and second defendants. The second defendant did
not enter
appearance to defend. Judgment by default was granted against the
second defendant on 19 January 2009. The matter against
the first
defendant went on trial and on 27 November 2009 the magistrate
granted judgment in favour of the plaintiff (the present
respondent).
[6]
From the evidence adduced at the trial the following facts are common
cause:
6.1
The invertors bought by the respondent had latent defects and/or did
not comply with the respondent's requirements and the second
defendant duly took possession of the invertors on 7 July 2008.
6.2
The invertors were returned to the second defendant, Silent Salesman
CC and not to the appellant.
6.3
The purchase price, namely R27 360.00 was paid by the respondent
direct into the account of Silent Salesman CC.
6.4
The invertors were delivered to the appellant by one Mr Sol George, a
member of Silent Salesman CC.
6.5
At the time of the conclusion of the agreement the appellant was not
a producer or supplier of the invertors. The appellant
was not a
franchisee or franchise holder in respect of the invertors.
6.6
The appellant had no technical knowledge of the workings of an
invertor and was not able to work out a quotation taking into
account
the needs of the respondent.
[7]
In the light of the common cause facts and on the probabilities it is
highly unlikely that the appellant would conclude an agreement
in his
own name with the respondent. The facts show that all he did was to
bring the client and supplier in a relationship so that
the supplier
could supply the goods to the client. At best for the respondent, the
appellant acted as an agent for an undisclosed
principal namely
Silent Salesman CC trading as Give Me Power.
[8]
It is clear that the respondent was aware of the existence of the
undisclosed principal, namely Silent Salesman CC hence the
close
corporation was cited as the second defendant. In the circumstances
the respondent failed to prove an agreement between himself
and the
appellant but that the appellant in all probability acted as an agent
for an undisclosed principal.
[9]
The appellant contends on appeal, correctly in my view, that the
appellant acted for an undisclosed principal whose identity
became
known to the respondent and that the respondent could not sue the
appellant and the second defendant jointly but only in
the
alternative. That the default judgment granted against the close
corporation precludes the respondent from continuing with
the action
against the appellant.
[10]
It is trite law that the liability of an undisclosed principal and of
an agent is an alternative one, they are not liable jointly
and
severally, each is liable on contract but the right of action is
against one or the other and not against both. See Natal Trading
and
Milling Company Limited v Inglis
1925 TPD 724.
[11]
In the aforementioned case the head note reads as follows:
"An
undisclosed principal and his agent are liable alternatively and not
jointly and severally on a contract made by the agent.
When the
undisclosed principal is discovered the other contracting party may
sue either the principal or the agent, and if with
the full knowledge
of the circumstances he elects to sue either, he is debarred from
subsequently proceeding against the other
on the same contract.”
[12]
The Natal Trading and Milling case supra was followed in the matter
of Talacchi and Another v The Master and Others
1997 1 SA 702
(TPD).
On
page 709B-D VORSTER AJ expressed himself as follows:
"On
the contrary, in my view that judgment is correct in principle.
Once
it is accepted that the liability of an undisclosed principal and the
agent towards the third party is alternative and not
cumulative, one
is driven to the inescapable conclusion that once
the
cause of action against either of the two is exhausted by reason of a
judgment taken, there can be no room in principle for
enforcing that
same claim against the other.”
[13]
In casu judgment by default was requested by the respondent and
granted against the second defendant (Silent Salesman CC) on
19
January 2009. This judgment has not been set aside and still stands.
Accordingly,
the respondent was debarred from proceeding against the appellant as
the liability of an agent and an undisclosed principal
is in the
alternative and not jointly or cumulative.
[14]
The appeal is accordingly upheld with costs including the costs
occasioned by the hearing of this matter on 9 September 2011.
The
judgment of the magistrate is set aside and replaced with the
following order:
"The
plaintiffs claim is dismissed with costs."
E
M MAKGOBA
JUDGE
OF THE NORTH GAUTENG HIGH COURT
I
agree
M
M JANSEN
ACTING
JUDGE OF THE NORTH GAUTENG HIGH COURT
I
agree
S
NAIDOO
ACTING
JUDGE OF THE NORTH GAUTENG HIGH COURT
A404/2010/sg
Heard
on: 24 July 2013
For
the Appellant: Adv CFJ Brand
Instructed
by: Pieter Nel Attorneys c/o DP Du Plessis Inc
For
the Respondent: Adv EP Van Rensburg Instructed by: Jacobs Attorneys
c/o Van Zyl Le Roux Inc
Date
of Judgment: 26 July 2013