Merwe v Nelspruit Eiendomsagentskap (352/85) [1986] ZASCA 128 (20 November 1986)

Merwe v Nelspruit Eiendomsagentskap (352/85) [1986] ZASCA 128 (20 November 1986)

The Supreme Court of Appeal found that the respondent failed to prove, on a balance of probabilities, that Brink was the effective cause of the sale transaction between the appellant and Jonker. The evidence showed that Maritz was the person who introduced Jonker to Volstruis and facilitated the negotiations leading to the sale. Brink's involvement was not sufficiently direct or decisive to constitute the effective cause. The court held that the trial judge erred in finding otherwise and that absolution from the instance should have been granted. Accordingly, the appeal succeeded, and the order of the trial court was set aside and replaced with absolution from the instance, with costs...

Citation
[1986] ZASCA 128
Parties
Appellant: E M van der Merwe; Respondent: Nelspruit Eiendomsagentskap
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
20 November 1986
Case Number
352/85
Procedural Posture
Civil Appeal / Appeal From Judgment of the Transvaal Provincial Division
Outcome
Appeal upheld; absolution from the instance granted; costs awarded to the appellant.
Judges
Trengove, Grosskopf, Smalberger
Legal Topics
Estate Agent Commission, Effective Cause, Burden of Proof
Commercial and Corporate Estate Agent Commission Effective Cause Burden of Proof

Case Brief

Summary, issues, holding and outcome

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Parties

E M van der Merwe

Appellant

Nelspruit Eiendomsagentskap

Respondent

Procedural Posture

Civil Appeal / Appeal From Judgment of the Transvaal Provincial Division

Legal Issues

  1. 1 Whether the respondent proved on a balance of probabilities that its representative was the effective cause of the sale transaction between the appellant and Jonker.
  2. 2 Whether the trial court erred in finding that Brink was the effective cause of the transaction.
  3. 3 Whether absolution from the instance should have been granted.

Ratio Decidendi

The Supreme Court of Appeal found that the respondent failed to prove, on a balance of probabilities, that Brink was the effective cause of the sale transaction between the appellant and Jonker. The evidence showed that Maritz was the person who introduced Jonker to Volstruis and facilitated the negotiations leading to the sale. Brink's involvement was not sufficiently direct or decisive to constitute the effective cause. The court held that the trial judge erred in finding otherwise and that absolution from the instance should have been granted. Accordingly, the appeal succeeded, and the order of the trial court was set aside and replaced with absolution from the instance, with costs...

Court Disposition

Appeal upheld; absolution from the instance granted; costs awarded to the appellant.

Orders

  • The appeal succeeds with costs.
  • The order of the trial court is set aside and replaced with: 'Absolution from the instance, with costs in favour of the defendant.'