Solomon N.O. and Others v Spur Cool Corporation (PTY) Ltd and Others (3215/00) [2002] ZAWCHC 1; 2002 (5) SA 214 (C); [2002] 2 All SA 359 (C) (30 January 2002)

Solomon N.O. and Others v Spur Cool Corporation (PTY) Ltd and Others (3215/00) [2002] ZAWCHC 1; 2002 (5) SA 214 (C); [2002] 2 All SA 359 (C) (30 January 2002)

The court found that the cession clause in the mortgage bond did not immediately transfer the right to claim rentals and revenues to the mortgagee, as it was subject to suspensive conditions and required either breach or consent to become effective. Therefore, the plaintiffs retained locus standi to sue for damages. In quantifying damages, the court held that only loss of rental up to the date of transfer of the property could be recovered, as the sale of the property rendered any further loss of rental irrelevant. The plaintiffs were entitled to recover costs incurred in securing the replacement tenant, specifically the expenditure on fixtures and fittings and a fair estimate for the...

Citation
[2002] ZAWCHC 1
Parties
Plaintiff: Solomon N.O. and Others; Defendant: Spur Cool Corporation (PTY) Ltd; Defendant: Second Defendant (name not specified); Defendant: Third Defendant (name not specified)
Court
Western Cape High Court, Cape Town
Jurisdiction
South Africa
Judgment Date
30 January 2002
Case Number
3215/00
Procedural Posture
Civil Trial / Judgment After Trial
Outcome
Judgment granted in favour of the plaintiffs against the first and second defendants, jointly and severally, for payment of damages and interest; costs apportioned between parties.
Judges
Binns-Ward
Legal Topics
Cession in Securitatem Debiti, Quantification of Contractual Damages, Limitation of Surety Liability, Locus Standi, Mitigation of Loss, Interest on Damages
Land and Property Commercial and Corporate Civil Procedure Cession in Securitatem Debiti Quantification of Contractual Damages Limitation of Surety Liability Locus Standi Mitigation of Loss +1 more

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Parties

Solomon N.O. and Others

Plaintiff

Spur Cool Corporation (PTY) Ltd

Defendant

Second Defendant (name not specified)

Defendant

Third Defendant (name not specified)

Defendant

Procedural Posture

Civil Trial / Judgment After Trial

Legal Issues

  1. 1 Whether the cession clause in the mortgage bond deprived the plaintiffs of locus standi to sue for damages.
  2. 2 How damages should be quantified in light of the sale of the property and replacement lease.
  3. 3 Whether the second defendant's liability under the deed of suretyship is limited by clause 20.

Ratio Decidendi

The court found that the cession clause in the mortgage bond did not immediately transfer the right to claim rentals and revenues to the mortgagee, as it was subject to suspensive conditions and required either breach or consent to become effective. Therefore, the plaintiffs retained locus standi to sue for damages. In quantifying damages, the court held that only loss of rental up to the date of transfer of the property could be recovered, as the sale of the property rendered any further loss of rental irrelevant. The plaintiffs were entitled to recover costs incurred in securing the replacement tenant, specifically the expenditure on fixtures and fittings and a fair estimate for the...

Court Disposition

Judgment granted in favour of the plaintiffs against the first and second defendants, jointly and severally, for payment of damages and interest; costs apportioned between parties.

Orders

  • Payment of the sum of R365,336 by the first and second defendants, jointly and severally, the one paying the other being absolved.
  • Interest a tempore morae on R238,336 at 15.5% per annum from 10 May 2000.