Tshiki and Another v Buffalo City Metro Municipality and Another (CA302/2017) [2018] ZAECGHC 122 (15 November 2018)

Tshiki and Another v Buffalo City Metro Municipality and Another (CA302/2017) [2018] ZAECGHC 122 (15 November 2018)

The court found that there was no evidence supporting the allegation that the first appellant contracted in his personal capacity; all documentation and correspondence were addressed to the second appellant, a corporate entity. The second appellant, however, was deregistered as a company at the relevant times and had not been re-registered, resulting in a lack of legal capacity to contract or sue for damages. The court held that the trial judge was correct in concluding that the second appellant had no locus standi and that the first appellant did not contract personally. The defence of res iudicata was rejected, as previous proceedings were dismissed on procedural grounds and did not...

Citation
[2018] ZAECGHC 122
Parties
Appellant: Mpeleki Tshiki; Appellant: Tshiki & Sons Incorporated; Respondent: Buffalo City Metro Municipality; Respondent: West Restitution Association (Pty) Ltd
Court
Eastern Cape High Court, Grahamstown
Jurisdiction
South Africa
Judgment Date
15 November 2018
Case Number
CA302/2017
Procedural Posture
Civil Appeal / Appeal From Judgment of Ntlama Aj, Leave Granted by Supreme Court of Appeal
Outcome
Appeal dismissed with costs, including costs of two counsel where utilised.
Judges
Lowe, Pickering, Nqumse
Legal Topics
Locus Standi, Contract of Mandate, Deregistration of Company, Res Iudicata, Municipal Procurement, Damages for Breach of Contract
Commercial and Corporate Civil Procedure Locus Standi Contract of Mandate Deregistration of Company Res Iudicata Municipal Procurement Damages for Breach of Contract

Case Brief

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Parties

Mpeleki Tshiki

Appellant

Tshiki & Sons Incorporated

Appellant

Buffalo City Metro Municipality

Respondent

West Restitution Association (Pty) Ltd

Respondent

Procedural Posture

Civil Appeal / Appeal From Judgment of Ntlama Aj, Leave Granted by Supreme Court of Appeal

Legal Issues

  1. 1 Whether a contract of mandate for conveyancing services was concluded between the appellants and the respondents.
  2. 2 Whether the first appellant contracted in his personal capacity or only through the second appellant.
  3. 3 Whether the second appellant, as a deregistered company, had locus standi to claim damages.

Ratio Decidendi

The court found that there was no evidence supporting the allegation that the first appellant contracted in his personal capacity; all documentation and correspondence were addressed to the second appellant, a corporate entity. The second appellant, however, was deregistered as a company at the relevant times and had not been re-registered, resulting in a lack of legal capacity to contract or sue for damages. The court held that the trial judge was correct in concluding that the second appellant had no locus standi and that the first appellant did not contract personally. The defence of res iudicata was rejected, as previous proceedings were dismissed on procedural grounds and did not...

Court Disposition

Appeal dismissed with costs, including costs of two counsel where utilised.

Orders

  • The appeal is dismissed with costs, such costs to include the costs of two counsel where utilised.