IN THE HIGH COURT OF SOUTH AFRICA,
FREE STATE DIVISION, BLOEMFONTEIN
Reportable:                              YES/NO
Of Interest to other Judges:   YES/NO
Circulate to Magistrates:        YES/NO	

Appeal number:   A153/2019
In the matter between: 

MARIE LOMBAARD t/a DE OUDE						                          Appellant		                  							Appellant
KRAAL COUNTRY ESTATE & SPA			    Appellant

and

BLOEMFONTEIN STAALWERKE (PTY) LTD
t/a VAN TONDER STAALKONSTRUKSIES		      Respondent

CORAM:			VAN ZYL J et REINDERS, J 	

HEARD ON:		21 OCTOBER 2019	

JUDGMENT BY:		REINDERS, J	

DELIVERED ON:	18 FEBRUARY 2020
________________________________________________________

 [1]	This is an appeal against the whole of the judgment of Magistrate M.C. Mokgobo handed down in the District Court, Bloemfontein on 3 June 2019.

[2]	Under civil case nr 26969/2015 the respondent, describing itself as Bloemfontein Staalwerke (Pty) Ltd t/a Van Tonder Staalkonstruksies, issued a summons against the appellant. It is convenient to proceed by referring to the parties as in the trial court.

[3]	In the summons defendant is described as “Marie Lombard, h/a De Oude Kraal Country Estate en Spa, ‘n meerderjarige vrou, wie handel dryf vanaf De Oude Kraal…”. A similar description of defendant is to be found in the amended declaration.

[4]	The summons aver that plaintiff and defendant during 2015 entered into a verbal agreement. Plaintiff was represented by Johan van Tonder (Mr van Tonder), and defendant acted in her personal capacity as Marie Lombard (Mrs Lombard). It is alleged that in terms of the agreement plaintiff would erect a steel construction on the premises of defendant. During October 2015 the parties entered into a further verbal agreement. Plaintiff avers that it has complied with all its obligations in terms of the agreement and defendant is indebted to plaintiff in the amount of   R 67 000-00  together with interest and costs.

[5] 	Defendant filed a plea and disputed that she conducts business as De Oude Kraal Country Estate and Spa. In amplification of the aforementioned plea it was averred that she acted in her capacity as authorised representative of a company. A conditional counter-claim was filed by defendant based on unprofessional and defective workmanship allegedly performed by plaintiff.

[6]	The matter proceeded before Magistrate Mokgobo who, at the commencement of the proceedings, was requested to order a separation of issues in terms of sec 29(4) of the Rules of the Magistrates’ Courts. Although not stated in so many words, the learned Magistrate gave a ruling to the effect that it was first to be determined whether it was in fact plaintiff and defendant as cited who contracted with each other. It followed that all the remaining issues and defences as well as the provisional counter-claim stood over for later determination if need be.

[7]	Having made the ruling	 the parties (in my view correctly so) agreed that the plaintiff should adduce evidence first. The magistrate heard evidence and concluded that he was satisfied that “the right party (defendant) is before court”. In my view the magistrate concluded that plaintiff has proven upon a preponderance of probabilities that it entered into the verbal agreements with the defendant as cited. 

[8]	It is against this order that defendant appealed to this court. The grounds of appeal are set out in the Notice of Appeal dated 1 July 2019. The nub hereof is that the magistrate erred in failing to find that De Oude Kraal Country Estate (Pty) Ltd was the contracting party, and failing to find that defendant does not trade in her own name.

[9]	Before us Mr J Els represented the appellant and Mr R Coetzee appeared on behalf of respondent. 

[10]	As mentioned earlier herein the defendant from the outset disputed having entered into an agreement with plaintiff. It is and was emphatically denied that she at any stage conducted business as De Oude Kraal Country Estate and Spa or for that matter that the steel construction would be erected on her premises. To this plea plaintiff did not file any reply to rely for example on estoppel or any representation in this regard. It was therefore incumbent upon plaintiff to prove the identity of the parties to the contract, as the parties to a contract constitute one of the essentialia thereof.
See: Societe Commerciale de Moteurs v Ackermann 1981 (3) SA 422 (A) at 439 H.

[11]	The defendant testified personally. According to her testimony she at no stage conducted business as De Oude Kraal Country Estate and Spa. At the time of her testimony the business was conducted by a company of which she and her husband were appointed directors on 24 November 2015. De Oude Kraal commenced conducting business during 1991 and was originally conducted in the name of a trust known as De Oude Kraal Trust. Due to advice the business was conducted through a close corporation known as De Oude Kraal Country Estate CC since 1999 until it was converted to a company in November 2015. This was confirmed by the defendant’s husband Mr Lombard under oath. In her testimony she averred that it was made clear to plaintiff’s representative at the time when the agreement was entered into that she acted on behalf of the close corporation. The evidence that defendant conducted business since 1991 through the entities as described could not be seriously challenged nor was any evidence adduced in this regard suggesting on a preponderance of probabilities that this is not so.

[12] The magistrate found that defendant’s evidence was substantially corroborated by her husband and accepted both defendant and her husband’s evidence in this regard. The magistrate however found that “the conclusion (that) cannot be resisted is that respondent was never informed that applicant was acting in her representative capacity and respondent was justified to have assumed that applicant was at that critical moment acting in her personal capacity.” The magistrate was ostensibly fortified in his finding based on an e-mail addressed to plaintiff wherein the identity of the owner of the business as a company or close corporation had been omitted. 

[13]	I am of the view that the magistrate erred in this regard. Having regard to the pleadings it was incumbent upon plaintiff to prove its allegation in the summons that defendant as cited, conducts business as described. The uncontroverted evidence by defendant is that she has never so conducted business. No reliance could be placed on representation by defendant or even a failure in the e-mail to refer to a close corporation or a company. Not only was the e-mail sent after the agreement was entered into but could the contents thereof not assist plaintiff in proving that defendant does business as alleged. Reference in the said e-mail stating that the writer thereof (Mrs Lombard) was not going to pay in my view is a typical letter drawn by a lay person which in casu could not lead to the more plausible inference that defendant contracted with plaintiff. The letter was addressed to plaintiff’s first witness, namely Mr van Tonder, and payment was not due to him but rather to the plaintiff.

[14]	The plaintiff adduced no evidence that defendant conducts business as described in the summons and particulars of claim. Mrs van Tonder, the second witness for the plaintiff, confirmed that the initial invoice by plaintiff was made out to De Oude Kraal,  although she could not recall whether it was for the close corporation or the company. She knew that defendant as cited was not acting in her personal capacity and she knew so before the quotations or invoices were issued.

[15]	On the evidence the magistrate should therefore have concluded that defendant does not conduct business as alleged in the summons. On the contrary, it should have been common cause that defendant has never done business in the aforementioned manner, nor was there evidence that the steel construction was erected on a premises belonging to defendant. The impression that plaintiff might have been under is neither here nor there. The plaintiff bears the onus to prove on a preponderance of probability with whom it entered into an agreement.

[16]	The evidence discloses that De Oude Kraal Country Estate and Spa is conducted in the name of a company. It follows that plaintiff did not succeed in proving its case and the proper order would have been absolution of the instance.

[17]	Appeals from magistrates’ courts are governed by the provisions of s 83 of the Magistrates’ Court Act 32 of 1944 (the Act). In terms hereof, for any “rule” or order” to be appealable, the effect must be that of a “final judgment”.  In the heads or argument filed on behalf of the respective parties it was common cause that the order of the magistrate was appealable. At the commencement of the appeal this court raised the issue of appealability in view of the judgment of the Supreme Court of Appeal in Steenkamp v South African Broadcasting Corporation 2002 (1) SA 625 SCA where it was held that an order of a magistrate in favour of a plaintiff on liability where the same and the issue of quantum had been separated, is not appealable as the ruling on liability does not constitute a declaratory order as a magistrate has no competence or jurisdiction to issue a declaratory order.  

[17.1]	The parties were afforded the opportunity to file supplementary heads and we are indebted for the assistance. We were referred to Zweni v Minister of Law and Order 1993 (1) SA 523 (A).  At 532J - 533A the court held that an order which is final in its effect has three attributes. Firstly, the decision must be final in effect and not susceptible to alteration by the court that made it; secondly, it must be definitive of the rights of the parties; and thirdly, it must have the effect of disposing of at least a substantial portion of the relief claimed  in the main proceedings,

[17.2]	Mr Els referred us to Ndlovu v Santam Limited 2006 (2) SA 239 (SCA) where the court held that a special plea of jurisdiction was final in effect and appealable. It was held that there is no sound reason in principle not to follow and apply the approach in Zweni supra to determine the finality of an order granted. Moreover, this question is to be answered with reference to the order itself (at 245 D-E). Upon examination of the order one determines whether it has the effect of a final judgment as provided in sec 83(b) of the Act. With reference to the relief claimed it should also include the relief claimed by the defendant (at 246B-C).

[18]	Upon an examination of the order of the magistrate, it is evident that if defendant would have succeeded with her defence, it would have been the end of the road for the plaintiff. The defendant pleaded that she was not a party to the contract. The magistrate dismissed her plea and this order is final and irrevocable. It cannot be revisited if the trial should proceed. It is not only definitive of the rights of the parties, but disposes of a substantial portion of the relief claimed.

[19]	Applying the principles laid down in Zweni supra, we are therefore satisfied that the order of the magistrate has the effect of a final judgment as contemplated in s 83(b) of the Act. The matter is accordingly appealable as submitted by the parties in their original heads of argument. To me it appears in any event to be highly impracticable and a substantial waste of costs and court time to have the matter to be proceeded with on all the outstanding aspects and then to have the parties to come back to this court to obtain a judgment on an issue which has finally been disposed of by the magistrate. I consider it to be in the interest of justice and the interest of the parties to now make the order that the magistrate in my view originally should have made.

[20]	There is no reason why the costs should not follow the event. 

[21]	The following order is accordingly issued:

1.	The appeal is upheld with costs.

2.	The order of the magistrate dated 3 June 2019 is set aside and replaced with the following:

“Absolution of the instance is granted with costs.”

			______________
C. REINDERS, J

	I concur.
______________
C. VAN ZYL, J

On behalf of appellant:	Adv J Els
		Instructed by:
		Symington & De Kok
		Bloemfontein

On behalf of respondent:	Mr R Coetzee
			Steenkamp & Jansen Attorneys
			Bloemfontein