About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: North Gauteng High Court, Pretoria
SAFLII
>>
Databases
>>
South Africa: North Gauteng High Court, Pretoria
>>
2013
>>
[2013] ZAGPPHC 537
|
|
Strydom v Nick Breytenbach Incorporated (A637/2011) [2013] ZAGPPHC 537 (13 November 2013)
iAfrica Transcriptions
(Pty) Limited
IN THE HIGH COURT OF
SOUTH AFRICA
GAUTENG DIVISION,
PRETORIA
CASE
NO
: A637-2011
DATE
:
2013-11-13
In the matter between
ALLETTA SOPHIA
STRYDOM
....................................................................................................
Plaintiff
and
NICK BREYTENBACH
INCORPORATED
.............................................................................
Defendant
J U D G M E N T
PRELLER
J
: Counsel for both parties were agreed
with my view that the judgment of the court
a
quo
is difficult to understand and that
it is virtually impossible to fathom the reasoning by which the
learned magistrate arrived at
his conclusion.
The
plaintiff issued summons in the Magistrates Court against the
defendant for the payment of R95 000.00 on the strength of a written
undertaking that the defendant had given to Greyvensteins
Nortier, a
firm of attorneys in the following terms:
"
Ons gee hiermee
ons kantoor onderneming om met datum van registrasie van bogemelde
transport, die bedrag van R95 000.00 alleen aan
u kantore oor te
betaal.”
The rest of
the letter is irrelevant. A copy of the letter containing this
undertaking, is annexed to the particulars of claim.
In her
particulars of claim, the plaintiff referred to this undertaking and
added the allegation (which does not appear from the
letter in which
the undertaking has been given) that the payment was to be made for
the credit of the plaintiff.
The
defendant pleaded that the undertaking speaks for itself and denied
everything to the contrary in the relevant part of the particulars
of
claim. It may have been wise of the plaintiff to have pleaded
that everything that does not accord with the letter of
undertaking,
is denied as the allegation made by the plaintiff is not necessarily
contrary to the terms of the letter of undertaking,
but supplements
it. That just by the way.
The
particulars of claim further allege that transfer of the property had
been registered in the Deeds Office of Pretoria but that
the
defendant failed to make payment of the R95 000.00, which was common
cause.
At the
trial before the Magistrate, the defendant attacked the plaintiff’s
locus standi
,
not in the sense of her capacity to appear in a court, but in her
entitlement to the claim, by way of a point in
limine
and the parties, by agreement, requested the court
a
quo
to adjudicate the latter dispute as
a stated case on the basis of agreed facts that form part of the
record.
I think
it is perhaps apposite to read that into the record. As stated,
the agreed facts in the stated case are the following:
1. Annexure A to the plaintiff’s particulars of claim is on the
face of it, made out in favour of a firm of attorneys, Greyvensteins
Nortier.
2. Annexure A to the plaintiff’s particulars of claim was made
out in favour of the aforementioned attorneys due to the fact
that
the plaintiff had to pay Greyvenstein the purchase price of a
property which the plaintiff had bought from the said Greyvenstein.
3. The aforementioned Greyvenstein was an attorney in the firm
Greyvensteins Nortier.
4. The aforementioned firm of attorneys, Greyvenstein Nortier were
the conveyancing attorneys pertaining to the transfer of Erf
22,
Tzitzikamma for the said Greyvenstein (as seller) to the plaintiff
(as purchaser).
5. When the undertaking Annexure A to the plaintiff’s
particulars of claim was not fulfilled by the defendant, the
plaintiff
subsequently paid an amount of R95 000.00 to Greyvensteins
Nortier Attorneys, for which payment receipt in that amount was
issued
by Greyvensteins Nortier to the plaintiff.
6. The property bought by the plaintiff from Greyvenstein was
subsequently transferred into the name of the plaintiff and the
amount of R95 000.00 was paid to the seller in reduction of the
purchase price thereof.
That is the
end of the agreed facts as set out in the stated case, but then the
document continues to say the following:
"On the assumption that the aforementioned
facts are correct, the question arises whether or not, without
further ado, the
plaintiff has
locus
standi
to insist upon payment in terms
of the undertaking, Annexure A to the plaintiff’s particulars
of claim. The opposing
contentions of the plaintiff and the
defendant are the following in this regard:
7. The plaintiff contends inter alia that the
attorneys firm Greyvensteins Nortier was merely her agent and that
she consequently
is entitled to collect in terms of the undertaking.
8. The defendant inter alia contends that the
firm of attorneys Greyvensteins Nortier received the money on behalf
of the seller
Greyvenstein as part payment of the purchase price,
conditional only upon transfer of the property being effected from
Greyvenstein
into the name of the plaintiff and that in the premises,
the plaintiff has no
locus standi
to sue on the undertaking without further ado.”
That
resulted in the incomprehensible judgment of the court
a
quo
dismissing the point in
limine
.
There
are accordingly two issues before us, namely firstly whether the
order made by the court
a quo
is appealable and secondly whether the plaintiff
had the necessary right to enforce the undertaking.
Counsel
were at the hearing agreed and Mr Jacobs for the respondent very
fairly, in my view, conceded that it is correct that this
court
should regard the point as an appealable one.
I just
wish to refer very briefly to two authorities, namely first in the
case of
Caroluskraal Farms and Others v
Eerste Nasionale Bank
[1994] ZASCA 23
;
1994 (3) SA 407
(AD). The relevant part of that judgment is contained at page 416 E.
It is not necessary to refer to the facts of this case, because
it is
also referred to in the subsequent case of
Smith
v Kwanon Qubela Town Council
1999 (4)
SA 947
(SCA). The entire relevant part of this judgment is
contained in paragraph 1 of the judgment by Harms JA of which I shall
quote the following part:
"1. The point in this appeal relates to a
point in
limine
.
It concerns the
locus standi
(in the sense of a lack of authority of Mr Norman Watson who
instituted these proceedings in the Eastern High Court, purportedly
acting on behalf of the Town Council). Pursuant to a stated
case which dealt with this objection only, Erasmus J came to
the
conclusion that Watson had the necessary
locus
standi
and he dismissed the objection
with costs. That order is appealable…”
Reference is
made to inter alia the Caroluskraal case to which I have referred. I
think the facts in the latter case are as close
to being on all fours
with the facts in the present case as one can wish to come. The
similarity being that in both cases
it was a decision on the
locus
standi
in the sense of capacity to claim of the plaintiff that
was in question.
In that
case as in the present case, it was a final and irrevocable decision
taken by the court on the point concerned that could
not be revisited
later. In the same way, in the present case, the ruling by the
court
a quo
is
final and irrevocable and cannot be revisited if the case should be
proceeded with.
Apart
from the legal position which is contained in section 83 of the
Magistrates Court Act and which limits the right of appeal
to final
rulings on a point of substance between the parties, there is the
very practical consequence of the current case, that
if the court
a
quo
were wrong and that the plaintiff
did not have the necessary
locus standi
,
it would be senseless to make a finding that the point was not
appealable, necessitating the entire trial to be gone through in
the
court
a quo
and
for the decision to be corrected in a subsequent appeal. In view of
the amount involved, that would hardly be worth the costs.
I am
accordingly satisfied that this court has the jurisdiction and it is
essential that we proceed to dispose of this appeal.
We are
bound to the stated case and the agreed facts contained in it.
Looking at the particulars of claim, which I suppose
we should not
do, it is clear that the plaintiff attempted to make a leap that was
not supported by the Annexure to the particulars
of claim namely the
statement that the payment of R95 000.00 had to be made to the firm
of attorneys
for the credit of the
plaintiff
. That does not appear
from the letter of undertaking and it is not contained in the
statement of agreed facts that is before
us.
It is
clear from the agreed facts that the undertaking was given to the
transferring attorneys, being Greyvensteins Nortier for
the purchase
price of a property that the plaintiff had purchased from
Greyvenstein who was also a member of the firm of the conveyancing
attorneys.
They
attended to the transfer of the property from Greyvenstein to the
plaintiff and it was clear that from the letter of undertaking
that
the amount concerned was to come from another transaction that the
defendant was handling on behalf of the plaintiff. We are
not told in
the agreed facts what the fate was of the transaction that was
handled by the defendant. I can only speculate that
that transaction
did not go through and that the attorney accordingly was of the view
that he was no longer under the obligation
to make the payment.
The
upshot was that the plaintiff had to make good the shortfall on the
purchase price from her own pocket and she is now trying
to recover
that amount from the defendant. It would be unfair to hold the
defendant liable for payment thereof, if the transaction
that he was
handling on behalf of the plaintiff, did not materialise because
quite clearly the intention never was that he should
pay that amount
from his pocket.
In any
event, the point in issue is the relationship between the plaintiff
and the conveyancing attorneys to whom the payment should
have been
made. If they were to hold the money in trust for the
credit of the plaintiff after receiving it from the
defendant, she
might have been entitled to claim that they pay it to her, for
example if she should decide not to proceed with
the purchase of the
Tzitzikamma property.
On the
other hand, if the money had been held in trust for the seller, that
is Greyvenstein, she would have had no control over
it and she would
not be entitled to claim payment thereof. What is clear, is
that from the agreed facts it is impossible
to say that the plaintiff
was ever entitled to the money or had any right to it, even if the
money had been in the trust account
of the transferring attorney.
That is one of the facts that the plaintiff would have had to prove,
bearing the onus in the
case as it was, before she could succeed.
The
defence raised by the defendant is in my view a valid one, namely
that in terms of the undertaking he had no obligation to the
plaintiff but only to the seller and that the seller through his
conveyancing attorney or his agent Greyvensteins Nortier were
the
only parties that would have been entitled to enforce the terms of
the undertaking against him.
As a
result of that, the plaintiff has not discharged the onus of showing
her entitlement to the money and there is simply no agreed
fact to
support that entitlement of hers.
In the
circumstances the proper order of the Magistrate would have been one
granting absolution from the instance, with costs.
ORDER
I therefore
propose that:
[1] The
appeal be upheld with costs.
[2]
The order of the court
a quo
be set aside and the following substituted for it:
“
The defendant is absolved from the instant
with costs.”
LOUW AA
: I agree
TWALA J
: I agree.
PRELLER J
: That
is then so ordered.
- - - -
- - - - - - - - -