Strydom v Nick Breytenbach Incorporated (A637/2011) [2013] ZAGPPHC 537 (13 November 2013)

Strydom v Nick Breytenbach Incorporated (A637/2011) [2013] ZAGPPHC 537 (13 November 2013)

The court found that the order of the Magistrates Court on locus standi was final and appealable. On the merits, the court held that the plaintiff failed to prove her entitlement to enforce the undertaking, as the agreed facts did not establish that she was the beneficiary of the payment or had any right to claim it from the defendant. The undertaking was made in favour of the conveyancing attorneys for the seller, and only the seller or his agent could enforce it. The plaintiff bore the onus to prove her entitlement but failed to do so. Accordingly, the proper order was absolution from the instance with costs.

Citation
[2013] ZAGPPHC 537
Parties
Plaintiff: Alletta Sophia Strydom; Defendant: Nick Breytenbach Incorporated
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
13 November 2013
Case Number
A637/2011
Procedural Posture
Civil Appeal / Appeal From Magistrates Court on Point in Limine Regarding Locus Standi
Outcome
Appeal upheld. Defendant absolved from the instance with costs.
Judges
Preller, Louw AA, Twala J
Legal Topics
Locus Standi, Undertaking Enforcement, Absolution From Instance
Civil Procedure Commercial and Corporate Locus Standi Undertaking Enforcement Absolution From Instance

Case Brief

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Parties

Alletta Sophia Strydom

Plaintiff

Nick Breytenbach Incorporated

Defendant

Procedural Posture

Civil Appeal / Appeal From Magistrates Court on Point in Limine Regarding Locus Standi

Legal Issues

  1. 1 Whether the order of the Magistrates Court on locus standi is appealable.
  2. 2 Whether the plaintiff had locus standi to enforce the undertaking given by the defendant.
  3. 3 Whether the defendant was obliged to pay the plaintiff under the terms of the undertaking.

Ratio Decidendi

The court found that the order of the Magistrates Court on locus standi was final and appealable. On the merits, the court held that the plaintiff failed to prove her entitlement to enforce the undertaking, as the agreed facts did not establish that she was the beneficiary of the payment or had any right to claim it from the defendant. The undertaking was made in favour of the conveyancing attorneys for the seller, and only the seller or his agent could enforce it. The plaintiff bore the onus to prove her entitlement but failed to do so. Accordingly, the proper order was absolution from the instance with costs.

Court Disposition

Appeal upheld. Defendant absolved from the instance with costs.

Orders

  • The appeal is upheld with costs.
  • The order of the Magistrates Court is set aside and substituted with: 'The defendant is absolved from the instance with costs.'