Du Plessis and Another v Basson & Pelser Prokureurs (A 219/2010) [2011] ZAWCHC 146 (17 February 2011)

Du Plessis and Another v Basson & Pelser Prokureurs (A 219/2010) [2011] ZAWCHC 146 (17 February 2011)

The respondent was not a party to the deed of sale and did not plead or prove a stipulatio alteri. There was no evidence that the contracting parties intended to confer a direct claim for wasted costs upon the respondent. The magistrate erred in finding locus standi for the respondent. Regarding the estate agent's commission, the evidence established that the sale was subject to a suspensive condition (obtaining a loan within 30 days), which was not fulfilled. The deed of sale was rectified to reflect this common mistake. As no enforceable sale was completed, the respondent was not entitled to commission. The magistrate's findings on breach and entitlement to costs on an attorney and...

Citation
[2011] ZAWCHC 146
Parties
Appellant: C G Du Plessis; Appellant: C G Sentrum BK; Respondent: Basson & Pelser Prokureurs
Court
Western Cape High Court, Cape Town
Jurisdiction
South Africa
Judgment Date
17 February 2011
Case Number
A 219/2010
Procedural Posture
Civil Appeal / Appeal From Magistrates Court Judgment
Outcome
Appeal allowed. Magistrate's judgment set aside. Respondent's claims dismissed with costs.
Judges
Baartman, Cloete
Legal Topics
Stipulatio Alteri, Rectification of Contract, Estate Agent Commission, Costs Award, Contractual Breach
Civil Procedure Land and Property Stipulatio Alteri Rectification of Contract Estate Agent Commission Costs Award Contractual Breach

Case Brief

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Parties

C G Du Plessis

Appellant

C G Sentrum BK

Appellant

Basson & Pelser Prokureurs

Respondent

Procedural Posture

Civil Appeal / Appeal From Magistrates Court Judgment

Legal Issues

  1. 1 Whether the respondent, not being a party to the deed of sale, had locus standi to claim wasted costs from the appellants.
  2. 2 Whether the respondent was entitled to estate agent's commission under the deed of sale.
  3. 3 Whether the deed of sale should be rectified to include a suspensive condition regarding the purchaser obtaining a loan.

Ratio Decidendi

The respondent was not a party to the deed of sale and did not plead or prove a stipulatio alteri. There was no evidence that the contracting parties intended to confer a direct claim for wasted costs upon the respondent. The magistrate erred in finding locus standi for the respondent. Regarding the estate agent's commission, the evidence established that the sale was subject to a suspensive condition (obtaining a loan within 30 days), which was not fulfilled. The deed of sale was rectified to reflect this common mistake. As no enforceable sale was completed, the respondent was not entitled to commission. The magistrate's findings on breach and entitlement to costs on an attorney and...

Court Disposition

Appeal allowed. Magistrate's judgment set aside. Respondent's claims dismissed with costs.

Orders

  • Plaintiff's claim against both defendants is dismissed with costs.
  • Costs to include reasonable travelling time, travelling expenses, and subsistence expenses of the appellants' attorney, including a refresher fee for each resumed day of the trial, subject to taxation by the clerk of the court.