Malamed and Another v Cleveland Estate Malamed and Another vs Vorner Investments (Pty) Ltd (02/84) [1984] ZASCA 4; [1984] 2 All SA 110 (A) ; 1984 (3) SA 155 (A) (28 February 1984)

Malamed and Another v Cleveland Estate Malamed and Another vs Vorner Investments (Pty) Ltd (02/84) [1984] ZASCA 4; [1984] 2 All SA 110 (A) ; 1984 (3) SA 155 (A) (28 February 1984)

The court found that Melamed and Hurwitz failed to establish the existence of a tacit contract appointing them as conveyancers for all township transfers. The conduct relied upon, namely the nomination in deeds of sale and the parties' relationship, was equivocal and did not demonstrate the necessary consensus or unequivocal intention to contract. The court also held that the relevant clauses in the deeds of sale did not constitute a stipulation for the benefit of a third party, as there was no intention for Melamed and Hurwitz to become parties to the contract by acceptance. The appeal was dismissed as the main and alternative claims were not proven.

Citation
[1984] ZASCA 4
Parties
Appellant: Joel Melamed and Hurwitz; Respondent: Cleveland Estates (Proprietary) Limited; Respondent: Vorner Investments (Proprietary) Limited
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
28 February 1984
Case Number
02/84
Procedural Posture
Civil Appeal / Appeal From Trial Court Judgment on Liability for Damages Following Alleged Unlawful Termination of Conveyancer Appointment.
Outcome
Appeal dismissed with costs, including costs of two counsel.
Judges
Corbett, Kotze, Trengove, Smuts, Grosskopf
Legal Topics
Agency Law, Tacit Contract, Stipulatio Alteri, Conveyancing, Irrevocable Mandate
Commercial and Corporate Land and Property Agency Law Tacit Contract Stipulatio Alteri Conveyancing Irrevocable Mandate

Case Brief

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Parties

Joel Melamed and Hurwitz

Appellant

Cleveland Estates (Proprietary) Limited

Respondent

Vorner Investments (Proprietary) Limited

Respondent

Procedural Posture

Civil Appeal / Appeal From Trial Court Judgment on Liability for Damages Following Alleged Unlawful Termination of Conveyancer Appointment.

Legal Issues

  1. 1 Whether a tacit contract existed appointing Melamed and Hurwitz as conveyancers for all township transfers.
  2. 2 Whether the cancellation of the alleged appointment constituted a breach of contract entitling Melamed and Hurwitz to damages.
  3. 3 Whether the deeds of sale contained a stipulation for the benefit of a third party (stipulatio alteri) in favour of Melamed and Hurwitz.

Ratio Decidendi

The court found that Melamed and Hurwitz failed to establish the existence of a tacit contract appointing them as conveyancers for all township transfers. The conduct relied upon, namely the nomination in deeds of sale and the parties' relationship, was equivocal and did not demonstrate the necessary consensus or unequivocal intention to contract. The court also held that the relevant clauses in the deeds of sale did not constitute a stipulation for the benefit of a third party, as there was no intention for Melamed and Hurwitz to become parties to the contract by acceptance. The appeal was dismissed as the main and alternative claims were not proven.

Court Disposition

Appeal dismissed with costs, including costs of two counsel.

Orders

  • The appeals are dismissed with costs, including the costs of two counsel.