D'Assonville v Borkor (EDMS) BPK (198/88) [1989] ZASCA 156 (27 November 1989)

D'Assonville v Borkor (EDMS) BPK (198/88) [1989] ZASCA 156 (27 November 1989)

The Supreme Court of Appeal held that ratification was not possible in this case because the contract was entered into by the agent (the appellant's former husband) in his own name and not as a representative of the appellant. The respondent's case at trial was based solely on ratification, and the evidence did not establish that the appellant had authorized or subsequently ratified the contract. Furthermore, the respondent had already obtained judgment against the agent, and under established law, could not pursue the principal (the appellant) for the same debt while the judgment against the agent remained in force. The court found that the magistrate was correct in granting absolution...

Citation
[1989] ZASCA 156
Parties
Appellant: VERA d'ASSONVILLE; Respondent: BORKOR (EIENDOMS) BEPERK
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
27 November 1989
Case Number
198/88
Procedural Posture
Civil Appeal / Appeal From Eastern Cape Division After Leave Granted
Outcome
Appeal upheld with costs; order of absolution from the instance restored.
Judges
Hoexter, Smalberger, Milne
Legal Topics
Agency, Ratification, Undisclosed Principal, Joint Liability, Absolution From the Instance
Commercial and Corporate Civil Procedure Agency Ratification Undisclosed Principal Joint Liability Absolution From the Instance

Case Brief

Summary, issues, holding and outcome

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Parties

VERA d'ASSONVILLE

Appellant

BORKOR (EIENDOMS) BEPERK

Respondent

Procedural Posture

Civil Appeal / Appeal From Eastern Cape Division After Leave Granted

Legal Issues

  1. 1 Whether the appellant ratified the contract entered into by her former husband with the respondent.
  2. 2 Whether the respondent may rely on the doctrine of undisclosed principal after obtaining judgment against the agent.
  3. 3 Whether the court a quo erred in overturning the magistrate's absolution from the instance.

Ratio Decidendi

The Supreme Court of Appeal held that ratification was not possible in this case because the contract was entered into by the agent (the appellant's former husband) in his own name and not as a representative of the appellant. The respondent's case at trial was based solely on ratification, and the evidence did not establish that the appellant had authorized or subsequently ratified the contract. Furthermore, the respondent had already obtained judgment against the agent, and under established law, could not pursue the principal (the appellant) for the same debt while the judgment against the agent remained in force. The court found that the magistrate was correct in granting absolution...

Court Disposition

Appeal upheld with costs; order of absolution from the instance restored.

Orders

  • The appeal succeeds with costs.
  • The order of the court a quo is set aside.