IN THE HIGH COURT OF SOUTH AFRICA 
(WESTERN CAPE HIGH COURT, CAPE TOWN)

Case No A 219/2010

In the matter between:

C G DU PLESSIS 						First Appellant
C G SENTRUM BK						Second Appellant

and

BASSON & PELSER PROKUREURS			Respondent

Court: Baartman J et Cloete, AJ

Heard:  11 February 2011

Delivered: 17 February 2011

JUDGMENT

CLOETE A J:

INTRODUCTION

[2] Respondent is a firm of attorneys which issued summons against (a) the first appellant (as second defendant) in his personal capacity and as surety and co-principal debtor of the second appellant; and (b) second appellant, a close corporation (as first defendant).

[3] The respondent advanced two claims against the appellants which are set out in its amended particulars of claim. Both of the respondent's claims are based on a deed of sale entered into on 7 November 2006 between one Gideon Christoffel Lourens ("Lourens") as seller and the appellants as purchaser(s). The subject matter of the sale was an immovable property situated at erf 2581 Robertson. Western Cape.

[4] The first claim for payment of the sum of R 6691.80 was in respect of wasted legal costs allegedly incurred by the respondent in relation to the sale. The second claim was for payment of the sum of R 50 000 in respect of estate agent's commission to which the respondent alleges it was entitled. The respondent averred that the appellants were liable to effect payment of these amounts because they unilaterally cancelled the deed of sale

[5] In support of the first claim, the respondent relied upon the provisions of clauses 8.1 and 16 of the deed of sale

[9] I will deal hereunder with whether it is necessary for me to determine if it was competent for the respondent to cite, and sue, the appellants in the manner in which it did. However, for sake of convenience only, I will refer in this judgement to the first and second appellants as 'the appellants'.

THE FIRST CLAIM FOR PAYMENT OF WASTED COSTS

THE SECOND CLAIM FOR PAYMENT OF ESTATE AGENT'S COMMISSION

[17] A Mr Cohen was called as a witness on behalf of respondent. He is the husband of a Mrs Cohen, who was employed by the respondent at the time It is common cause that Mr Cohen acted as the duly authorised agent of the seller Lourens. It appears from the record that Mr Cohen was directly instrumental in bringing about the conclusion of the agreement of sale between Lourens {whom he represented) and the appellants. Although initially evasive, he eventually conceded that he represented to the appellants that the sale of the immovable property in question was indeed subject to the suspensive condition outlined above.

[20] Further, the evidence of the first appellant to the effect that application had been made for the mortgage bond which was not granted was not seriously challenged by the respondent, and. to my mind, must be accepted.

[22] The question which now arises is whether the respondent in these circumstances is entitled to payment of the commission claimed

OTHER ISSUES ARISING

[25] In light of the conclusions reached. I do not believe that it is necessary to consider any of the remaining grounds of appeal. It accordingly also follows that it is not necessary for me to make any findings regarding the manner in which the first and second appellants were cited, and sued, by the respondent. What should however be mentioned is that there does not appear to be any basis, either in fact or in law, upon which the magistrate concluded that the respondent was entitled to costs on a scale as between attorney and client.

[26] As to costs, appellants' counsel submitted that this court should exercise its discretion in terms of rule 33(9) of the magistrate's court rules. I am of the view that it was indeed reasonable, in the circumstances of this matter, for the appellants to have employed the services of an attorney other than a local attorney to represent them.

[27] I accordingly propose that the appeal is allowed with costs and the magistrate's judgement is altered to read: "Plaintiffs claim against both defendants is dismissed with costs; such costs to include the reasonable travelling time, travelling expenses and subsistence expenses of their attorney, including a refresher fee for each resumed day of the trial, provided that the determination of such costs shall be done on taxation by the clerk of the court."
J I Cloete, AJ

I agree. It is so ordered