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IN THE HIGH COURT OF SOUTH AFRICA /ES

(TRANSVAAL PROVINCIAL DIVISION)

CASE NO: A343/2004

DATE: 18/02/2005

UNREPORTABLE

IN THE MATTER BETWEEN:

HELGA MARIA KLAUER APPELLANT

AND

EBERLANZ WOODWORKS CC RESPONDENT

JUDGMENT

VAN DER MERWE, J

In this judgment I will refer to the appellant as the defendant and to the respondent as the plaintiff.

The appeal was previously enrolled to be heard on 27 July 2004. Because the record of the proceedings in the court a quo was not properly before court and because the defendant's heads of argument were filed late the matter was postponed sine die. The defendant was ordered to lodge and file an application for condonation within twenty one days. The costs occasioned by the postponement were reserved. A rule nisi was issued returnable on the date of the hearing of this appeal calling upon the defendant's attorneys of record to advance reasons why they should not be ordered to pay the wasted costs de bonis propriis.

The record is still not in order in all respects. The pleadings, exhibits, notice of appeal and the record of the evidence are contained in different bundles. Though all documents are before court it should have been presented in a better form. It is difficult to handle as it is.

0n behalf of the plaintiff we were asked to refuse condonation and to strike the appeal from the roll with costs.

The explanation for the failure to lodge a proper record and heads of argument timeously tendered in the application for condonation appears to be rather superficial but just sufficient for the court to come to the defendant's rescue. Condonation is therefore granted.

As far as costs are concerned I am not persuaded that the defendant's attorneys should pay the wasted costs occasioned by the postponement on 27 July 2004. The litigant, ie the defendant, will have to pay those costs. Whatever the attorney and defendant arrange amongst themselves concerning costs is of no concern to us.

The defendant is ordered to pay the wasted costs occasioned by the postponement on 27 July 2004, as well as the costs of the application for condonation.

The plaintiff issued summons out of the court a quo against the defendant as first defendant and her husband as the second defendant, in which it claimed payment of the amount of R4 708,00 together with interest and costs for goods sold and delivered and services rendered by it to the defendant and/or second defendant on or about 11 December 2001.

The defendant filed a special plea denying that the plaintiff has locus standi in respect of the claim as the defendant entered into an agreement, not with the plaintiff, but with a certain Mr R W Eberlanz in his personal capacity.

0n the merits the defendant pleaded that:

1. on or about 11 December 2001 an oral agreement was entered into on the terms that:

1.1 plaintiff had to supply material and render services at premises situated in Waterkloof Glen, Pretoria;

1.2 the price for the material and services would be R4 200,00 inclusive of VAT;

1.3 payment to the plaintiff would be made on completion of the work which had to be done by mid December 2001.

2. Although not satisfied with the workmanship, defendant intended paying the agreed price of R4 200,00 to the plaintiff.

3. Before effecting the payment of R4 200,00 the plaintiff removed certain cupboard doors it had installed.

4. As a result of the removal of the said doors the work undertaken is incomplete.

5. It will cost R900,00 to complete the work undertaken by the plaintiff.

6. In the premises the defendant is entitled to set off of this sum of R900,00.

In the alternative to the aforegoing the defendant pleaded that the plaintiff has not fulfilled its obligations in terms of the agreement and is therefore not entitled to any payment at all.

The court a quo dismissed the plaintiff's claim against the second defendant with costs. Judgment was granted in favour of the plaintiff against the defendant in the amount of R4 708,00 plus interest and costs.

The defendant noted an appeal against the court a quo's judgment and order. For what is to follow I quote the grounds of appeal which read as follows:

"Dit is die appellant se respekvolle submissie dat die agbare landdros fouteer het deur te bevind dat:

1. Die R900,00 waarna daar in die verweerskrif verwys word, nie bewys is nie.

2. Appellant met eiser sou kontrakteer het as hy geweet het dat eiser 'n beslote korporasie is.

3. Appellant en tweede verweerder in hierdie aangeleentheid se getuienis nie met mekaar strook nie.

4. Eiser die werk substansieel vervul het en daarom geregtig is op betaling.

Dit is die respekvolle submissie van die appellant dat die agbare landdros gefouteer het deur nie te bevind dat:

1. Die exceptio non adimpleti contractus soos gepleit in paragraaf 7 van die verweerskrif nie in hierdie geval toepassing vind nie;

2. eiser se werk na behore voltooi is en daarom geregtig is op betaling;

3. appellant te alle tye bereid was dat eiser sy werk na behore voltooi en dan betaal sal word."

The first and third grounds of appeal were abandoned in the defendant's heads of argument. In this respect it is to be noted that although it was alleged in the pleadings that cupboard doors were removed the evidence referred to only one cupboard door. It is that cupboard door that was worth R900,00 according to the defendant's plea. With the abandonment of the first ground of appeal there is no question of set off any longer. The third ground of appeal refers to the court a quo's finding that the defendant and the second defendant's evidence was contradictory. With the abandonment of this ground of appeal it is therefore accepted that the court a quo was correct in this respect.

In respect of the second ground of appeal the court a quo found that, on the probabilities, Mr Eberlanz did not contract with the defendant in his personal capacity. The court a quo did not find that Mr Eberlanz specifically informed the defendant that he was acting on behalf of a closed corporation. In fact, the court a quo found that "even if" the defendant was aware of the fact that Eberlanz was acting for the closed corporation, she would have entered into the agreement with the plaintiff. The defendant's evidence in this respect was according to the court a quo "not acceptable".

The defendant did say that she would have refused to contract with a closed corporation unless she had received a written quotation. 0therwise she would have relied on the integrity and honesty of the individual as is customary in Germany, her country of origin. Despite the defendant's contention that she contracted with Eberlanz personally, she said that she asked for a written quotation. Eberlanz, however, said that he does not issue written quotations at all.

In my judgment the defendant's special plea, ie the second ground of appeal, is based on an after thought. I agree with the court a quo that the defendant's evidence in this respect is not acceptable.

At worst for the plaintiff, Eberlanz contracted with the defendant for an undisclosed principle, ie the plaintiff. In law that means that the undisclosed principle (the plaintiff) as well as the agent (Eberlanz) are jointly and severally liable to the other contracting party. The undisclosed principle is also entitled to sue in his/her/its name.

See Cullinan v Noordkaaplandse Aartappelkernmoerkwekers Koöperasie Bpk 1972 1 SA 761 (AA).

It is clear that the undisclosed principle becomes a party to the contract and can enforce its rights in its own name.

The evidence in this respect is clear. Eberlanz testified that he had done business through the plaintiff since 1993. All the tools and equipment used in the business belong to the plaintiff. All employees are in the employ of the plaintiff and all material used in contracts are purchased by the plaintiff.

I am therefore satisfied that the court a quo was correct in dismissing the special plea. There is therefore no merit in the second ground of appeal.

As stated above with reference to the defendant's plea, and as appears from the evidence as well, the defendant started making out a cheque to Eberlanz Woodworks when Mr Eberlanz removed a cupboard door, according to him as some sort of security for payment of the amount due to the plaintiff. That, according to the defendant, rendered the works incomplete with the result that, according to her, she was and is not obliged to make payment to the plaintiff.

I am satisfied on the evidence as a whole that the work was completed. 0nly because of a dispute between the parties concerning the contract price did Mr Eberlanz remove a cupboard door. 0nce payment was effected the cupboard door could be clipped on with the result that the work would be "complete" as before the removal of the door.

Though Mr Eberlanz was prepared to put the door back there was no tender by the defendant to pay the contract price to the plaintiff. Throughout the defendant maintained that a lesser amount was due to whoever performed the work. 0n the evidence it is clear that the defendant was never of the intention to pay the agreed amount to the plaintiff. 0n the evidence it is furthermore clear that the defendant refused to pay the agreed price even if the plaintiff had reinstalled the cupboard door. In fact the defendant refused the plaintiff and Mr Eberlanz entrance to the premises and by doing that she made it impossible for the plaintiff to reinstall the door.

I am satisfied that the court a quo was correct in finding that the plaintiff had fulfilled its obligations in terms of the agreement.

The reference to the exceptio non adimpleti contractus in the notice of appeal does not assist the defendant. The exceptio was applicable in this case. The defendant cannot, however, rely on the exceptio. I am satisfied that the plaintiff completed the work. It only removed the cupboard door once it became clear that the defendant was not prepared to honour her obligations in terms of the agreement. The plaintiff tendered to reinstall the cupboard door against payment of the agreed price. The defendant, however, refused to allow the plaintiff to reinstall the cupboard door and to pay the agreed price. In any event defendant was obliged to pay the pro rata amount due in respect of the finished and accepted works. This she never did.

The defendant was therefore not entitled to rely on the exceptio. Before us counsel for the defendant abandoned any reliance on the exceptio.

For the reasons stated above I am also satisfied that the magistrate was correct in finding that the plaintiff did complete the work and that it was entitled to payment. For the same reasons the court a quo was also entitled to find that the defendant at no stage was prepared to allow the plaintiff to complete the work against payment of the agreed price.

In the heads of argument reference was made to the contract price and the question whether VAT was included or not. There is no such ground of appeal in the notice of appeal. It is therefore not necessary to deal with this line of attack on the court a quo's judgment. The court a quo in fact found that the defendant and the second defendant's evidence was contradictory. That in particular referred to their evidence on the contract price. I am satisfied that the court a quo was correct in granting the plaintiff's claim in the amount it did.

It was also suggested in the heads of argument that the court a quo was biased and that it had mero motu to order that parts of the evidence had to be translated for the defendant to understand. This is also not a ground of appeal. The defendant was legally represented and if she did not understand the evidence given by Mr Eberlanz it was for her and/or her legal representative to arrange for an interpreter to translate the evidence in a language she could understand. I do not find it necessary to deal any further with this suggested ground of appeal.

At the end of his argument counsel for the defendant referred us to the provisions of rule 7(3) of the Uniform Rules of Court. The rule reads as follows:

"(3) An attorney instructing an advocate to appear in an appeal on behalf of any party other than a party who has caused the appeal to be set down shall, before the hearing thereof, file with the registrar a power of attorney authorising him so to act."

The subrule is couched in peremptory terms. In spite of that the following was said in the judgment in the matter of Solomons v Allie 1965 4 SA 755 (T) at 756B C:

"The necessity for a respondent to file a power of attorney to oppose the appeal is as peremptory, in my view, as the requirement in respect of the appellant. But there is this distinction, that the respondent, who has failed to file a power of attorney, has no locus standi here to oppose. The appeal is properly on our roll and it would have to be heard and we will have to decide, after hearing argument on the merits of the appeal. In the case where the appellant's power of attorney was wanting the court refused, and I think had no jurisdiction, to grant a postponement of something that was not on its roll. But the position seems to me different where the power of attorney of the respondent is lacking. The appeal is properly before the court and we have a discretion."

The judgment in the Solomons case supra was referred to with apparent approval by MILNE, JP in Rajah v Pillay 1966 2 SA 222 (N). In the Rajah matter the power of attorney became available before counsel for the respondent addressed the court in argument. The court then concluded that so long as the power of attorney was filed before argument, the intention of the rule was fulfilled.

In Erasmus, Superior Court Practice, B1 60 the learned author states the following:

"The ultimate test enunciated by the appellate division is whether it is 'in the interest of justice' to give an attorney time to produce proper proof of authority."

Reference is then made to the judgment in the matter of Queensland Insurance Co Ltd v Banque Commerciale Africaine 1946 AD 272. In the Queensland matter the court of appeal allowed both parties to address the court without a power of attorney having been filed by the respondent. The court of appeal allowed a power of attorney to be filed and dismissed the appeal. The court found that in the particular circumstances of the case the interests of justice required that time be given to file a power of attorney.

In the instant matter, no point in limine was taken on behalf of the defendant that no power of attorney had been filed. 0nly at the end of his argument did counsel for the defendant refer to the absence of a power of attorney in the court file. Counsel for the plaintiff, after argument was completed, wanted an opportunity to investigate the existence or not of a power of attorney. It transpired that at the time of the hearing of the appeal there was no power of attorney filed on behalf of the plaintiff. I instructed counsel for the parties to address us on the question of the failure to timeously file the power of attorney as well as on the question of costs occasioned by the hearing of the appeal on the second day, ie 15 February 2005.

Had counsel for the defendant timeously taken the point in limine the plaintiff's legal representatives could have been forewarned and could have obtained a power of attorney before argument started. In my judgment the interests of justice require that the power of attorney be received and the appeal finalised. The defendant did not take a point in limine in respect of the power of attorney on the previous hearing which took place on 27 July 2004. 0nly now, as an after thought, was the point taken at a belated stage of the proceedings. The parties already knew on 14 February 2005 that a power of attorney was available and that if the defendant persists in her attitude, extra costs would be incurred. The defendant did persist in her attitude, in my judgment, unreasonably so.

The defendant alone is to blame for the extra costs so incurred and she will have to pay such costs.

In the result the following orders are granted:

1. Condonation for the late filing of the heads of argument and record is granted.

2. The defendant is ordered to pay the wasted costs occasioned by the postponement on 27 July 2004 as well as the costs of the application for condonation.

3. The appeal is dismissed with costs.

4. The defendant is ordered to pay the costs of the appearance on 15 February 2004.

W J VAN DER MERWE

JUDGE OF THE HIGH COURT

I agree

R D CLAASSEN

JUDGE OF THE HIGH COURT

A343-2004

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