Vorster NO v PM Security And Crime Prevention (Pty) Ltd T/A Hermanus (A313/2014) [2015] ZAWCHC 64 (20 May 2015)

Vorster NO v PM Security And Crime Prevention (Pty) Ltd T/A Hermanus (A313/2014) [2015] ZAWCHC 64 (20 May 2015)

The court held that CEH's particulars of claim, as amplified by further particulars, sufficiently made out a case for the recovery of commission, even if CEH had not formally accepted the benefits of clause 9 by signature. The oral mandate and the conduct of the parties indicated acceptance of the commission terms. The court further found that, even assuming CEH was required to refer the dispute to mediation under clause 11, the Trust's prior repudiation of CEH's status as a party to the contract rendered mediation futile. Therefore, CEH was not precluded from instituting action without mediation. The magistrate was correct to dismiss both special pleas.

Citation
[2015] ZAWCHC 64
Parties
Appellant: Lodewikus Bartholomeus Vorster NO as trustee of the Elma Vorster Kindertrust; Respondent: PM Security And Crime Prevention (Pty) Ltd T/A Chas Everitt Hermanus
Court
Western Cape High Court, Cape Town
Jurisdiction
South Africa
Judgment Date
20 May 2015
Case Number
A313/2014
Procedural Posture
Civil Appeal / Appeal Against Dismissal of Special Pleas in Magistrate's Court
Outcome
Appeal dismissed with costs.
Judges
Erasmus, Rogers
Legal Topics
Estate Agent Commission, Locus Standi, Mediation Clause, Oral Mandate, Contractual Repudiation
Commercial and Corporate Civil Procedure Estate Agent Commission Locus Standi Mediation Clause Oral Mandate Contractual Repudiation

Case Brief

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Parties

Lodewikus Bartholomeus Vorster NO as trustee of the Elma Vorster Kindertrust

Appellant

PM Security And Crime Prevention (Pty) Ltd T/A Chas Everitt Hermanus

Respondent

Procedural Posture

Civil Appeal / Appeal Against Dismissal of Special Pleas in Magistrate's Court

Legal Issues

  1. 1 Whether the respondent accepted the benefits conferred by the deed of sale and thus acquired locus standi to claim commission.
  2. 2 Whether the respondent's failure to refer the dispute to mediation as required by the contract rendered its action premature.

Ratio Decidendi

The court held that CEH's particulars of claim, as amplified by further particulars, sufficiently made out a case for the recovery of commission, even if CEH had not formally accepted the benefits of clause 9 by signature. The oral mandate and the conduct of the parties indicated acceptance of the commission terms. The court further found that, even assuming CEH was required to refer the dispute to mediation under clause 11, the Trust's prior repudiation of CEH's status as a party to the contract rendered mediation futile. Therefore, CEH was not precluded from instituting action without mediation. The magistrate was correct to dismiss both special pleas.

Court Disposition

Appeal dismissed with costs.

Orders

  • The appeal is dismissed with costs.