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IN THE NORTH GAUTENG HIGH COURT, PRETORIA

(REPUBLIC OF SOUTH AFRICA)

Case Number: A 278/13

DATE: 03 DECEMBER 2013

In the matter between:

GROENEWALD LUBBE INCORPORATED.....................................APPLICANT (Plaintiff a quo)

And

BRONWEN FICK..........................................................................RESPONDENT (Defendant a quo)

JUDGMENT

MOLEFE, J:

[1] This is an appeal against the judgment by the Honourable Magistrate for the district of Pretoria handed down on 5 February 2013. This appeal is with leave of the trial court. For convenience the parties shall be referred to as they were in the trial court.

[2] The plaintiff sued for damages in the amount of R41 000*00 outstanding and arising from an orai agreement of sale of a motor vehicle. The defendant filed a plea containing a special plea and a counter claim. The defendant’s plea read as follows:

“Die Verweerderes ontken die Eiser se locus standi en die Eiser word geplaas tot die bewys daarvan dat die nodige locus standi het om die aksie in te stel. Indien die Verweerderes nie daarin kan slag om die nodige locus standi te bewys nie pleit die Vervseerderes dat die Eiser se aksie van die hand bewys word met koste’!.

[3] The Plaintiff replied to the defendant’s plea and counter claim but did not deal with the contents of the special plea.

[4] The court a quo upheld the defendant’s special plea of lack of locus standi with costs. The magistrate’s reasons for her judgment were stated as follows:

“The law recognizes that the non-owner who is in lawful possession of property has an interest in its presetvation which is distinct from that of the owner who is not in possession. A lawful possessor with a contract with the owner may have locus standi to sue for wrongful damage or where property is destroyed. An owner and a possessor will seek damage for their respective different interests. In Spolander v Word 1940 CPD 24, the plaintiff, a non- owner, successfully claimed damages, as he had undertaken to be liable for any damage to the vehicle while using it. However in the case in point, the plaintiff’s action is not based on undue enrichment or damages but is based on contract. Therefore it is questionable whether the plaintiff had the authority to conclude a sale agreement with the defendant while the vehicle was still under an existing agreement of finance by BMW finance.

The crux of the issue is whether the plaintiff had the authority to enter into an agreement of sale when it held no title of ownership but only that of possessor. The agreement was entered into with the defendant in 2009 but the obligations in terms of the instalment agreement between the plaintiff and BMW finance was only completed (paid up) by 1st February 2010.

The plaintiff could not provide the court with the BMW finance contract or details thereof satisfying the court of its onus that it had the relevant authority to conclude a sale agreement with the defendant but relied on being a bona fide possessor. In addition the plaintiff failed to reply to the special plea of the defendant setting out its defence. In the premises the court upholds the defendant’s special plea with costs".

[5] The respondent did not file her heads of argument and on the day of the hearing of the appeal there was no appearance by or on behalf of the appellant.

[6] The appellant disputes the court a quo’s findings that the appellant had no locus standi to have instituted the action and that the appellant did not have the authority to conclude a sale agreement with the respondent whilst the vehicle was still on an existing agreement of finance by BMW Finance.

[7] I will now deal with the respondent’s special plea. Firstly the, respondent’s special plea did not attack the plaintiff’s authority to enter into the contract nor the validity of the contract. The special plea was to question the plaintiff’s locus standi. A preliminary procedural question that has to be considered in the judicial process is whether the parties to the litigation have the necessary standing or legal capacity to litigate. Locus standi concerns the sufficiency and directness of a litigant’s interest in proceedings which warrants his or her title to prosecute the claim asserted.

[8] A person wishing to institute or defend legal proceedings must have a direct and substantial interest in the right which is the subject matter of the litigation and the outcome of such litigation. In my view, the plaintiff as the bona fide possessor of the vehicle, has a direct and substantial interest in the subject matter of the litigation and therefore had the necessary locus standi to have instituted the action against the respondent, in addition, the plaintiff’s cause of action was based on the alleged contract between the parties, with the plaintiff asserting its rights under the contract. The plaintiff clearly has a direct and substantial interest in the action based on the contract, whatever the ultimate merits of that claim turn out to be.

[9] It is also of concern that the defendant questioned the plaintiff’s locus standi in a special plea and not an exception. The question whether a particular party has standing to sue and be sued may be dealt with on an exception .

[10] The court a quo’s finding that the plaintiff failed to reply to the defendant’s special plea is without merit. Rule 6 (4) of the Magistrates’ Court Rules provides that:

“Every pleading shall contain a clear and concise statement of the material facts upon which the pleader relies for his or her claim, defence or answer to any pleadings, as the case may be, with sufficient particularity to enable the opposite party to reply thereto”.

The defendant’s special plea was with no sufficient details and in my view, it is incorrect to have expected the plaintiff to reply thereto, as the defendant failed to state the grounds of her special plea.

[11] The learned magistrate’s finding that the plaintiff did not have authority to conclude the sale agreement with the respondent is in my view, irrelevant as it was not pleaded by the respondent. In any event, this is an issue that goes to the merits of the claim, and not to the plaintiff’s locus standi to institute the action. It is however worth mention that the plaintiff’s cause of action was based on a sale agreement. A party relying on a contract of sale must allege and prove a contract in which the parties agreed to a) purchase and sell; b) on the thing purchased and c) on the price .

In casu, the parties complied with the above-mentioned requirements of a contract of safe. In the circumstances, the Court a quo ought properly to have dismissed the special plea and gone on to determine the merits of the claim on the basis that the plaintiff had locus standi to institute the action.

[12] I do not agree with the judgment and reasons for the judgment of the Court a quo.

In the result, I make the following order;

a) The appeal is upheld with costs;

b) the matter is remitted to the magistrate to proceed with the trial on merits.

D.S. MOLEFE

JUDGE OF THE HIGH COURT

I agree.

R. M. KEIGHTLEY

ACTING JUDGE OF THE HIGH COURT

APPEARANCES:

Counsel on behalf of Applicant : Adv. W J Botha Instructed by : Liesl van Rensburg Attorneys

Respondent’s Attorneys : Bennie Badenhorst Attorneys

Date Heard 21 November 2013

Date Delivered : 03 December 2013

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