Herbst v Riley (A404/2010) [2013] ZAGPPHC 229 (26 July 2013)

Herbst v Riley (A404/2010) [2013] ZAGPPHC 229 (26 July 2013)

The court found that the appellant acted as an agent for an undisclosed principal, Silent Salesman CC, and not in his personal capacity. The respondent was aware of the principal's existence and had already obtained default judgment against the close corporation. According to established legal principles, the liability of an agent and an undisclosed principal is alternative, not joint or cumulative. Once judgment is obtained against one, the claimant is barred from proceeding against the other on the same contract. Therefore, the respondent could not continue the action against the appellant after securing judgment against Silent Salesman CC. The magistrate's judgment was set aside and...

Citation
[2013] ZAGPPHC 229
Parties
Appellant: Gravett Herbst; Respondent: T Riley
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
26 July 2013
Case Number
A404/2010
Procedural Posture
Civil Appeal / Appeal From Magistrate's Court Judgment
Outcome
Appeal upheld; magistrate's judgment set aside; respondent's claim dismissed with costs.
Judges
E M Makgoba, M M Jansen
Legal Topics
Agency Law, Undisclosed Principal, Joint and Several Liability, Default Judgment
Commercial and Corporate Agency Law Undisclosed Principal Joint and Several Liability Default Judgment

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 2 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Parties

Gravett Herbst

Appellant

T Riley

Respondent

Procedural Posture

Civil Appeal / Appeal From Magistrate's Court Judgment

Legal Issues

  1. 1 Whether the appellant was liable to the respondent under a verbal sale agreement for the purchase price of invertors.
  2. 2 Whether the respondent could proceed against both the agent (appellant) and the undisclosed principal (Silent Salesman CC) jointly or only in the alternative.
  3. 3 Whether the default judgment against the close corporation precluded further proceedings against the appellant.

Ratio Decidendi

The court found that the appellant acted as an agent for an undisclosed principal, Silent Salesman CC, and not in his personal capacity. The respondent was aware of the principal's existence and had already obtained default judgment against the close corporation. According to established legal principles, the liability of an agent and an undisclosed principal is alternative, not joint or cumulative. Once judgment is obtained against one, the claimant is barred from proceeding against the other on the same contract. Therefore, the respondent could not continue the action against the appellant after securing judgment against Silent Salesman CC. The magistrate's judgment was set aside and...

Court Disposition

Appeal upheld; magistrate's judgment set aside; respondent's claim dismissed with costs.

Orders

  • The appeal is upheld with costs, including costs occasioned by the hearing on 9 September 2011.
  • The judgment of the magistrate is set aside.