Beckwith v Foundation Investment Co

• Jurisdiction: South Africa
• Judge: Steyn CJ, Hoexter JA, Ogilvie Thompson JA, Malan AJA and Holmes AJA
• Judgment Date: 05 December 1960
• Hearing Date: 25 November 1960
• Court: Appellate Division

Hoexter, J.A.:

This is an appeal from a judgment of the Transvaal Provincial Division upholding the judgment of a magistrate.

Hoexter JA

On the 9th January, 1957, the appellant gave a mandate to the respondent in the following terms:

'I, Salomina Christina Beckwith, the owner of two portions of portion of portion 33 of portion 28 of the farm Rietvallei No. 89 as shown on the diagrams, Dist. Krugersdorp, hereby authorise you to sell my property on A a terms deed of sale or a straight transfer deed of sale for the net sum of £3,000 (three thousand pounds) which is my price. All moneys and benefits over and above the aforementioned sum will be yours in their entirety and shall be treated as, and considered to be your commission, which sum you may deduct from the purchaser's deposit on the course of the terms deed of sale, or keep in your trust account from the initial deposit where transfer is waiting to be effected. After transfer this sum will be free of trust to your company account.'

B On the 12th January, 1957, as a result of the respondent's efforts, the appellant signed a deed of sale, the relevant terms of which were the following:

'The seller hereby sells to the purchaser who hereby purchases certain property together with all buildings and erections and fixed improvements thereon.' (Here follows a description of the property sold.)

'1. The purchase price is the sum of £3,300 payable as to £400 in cash C on the signing of these presents, to be paid to Foundation Investments & Co., 408/410 Sanderson Buildings, corner Harrison/President Streets, Johannesburg, on account of the seller, and the balance of £2,900 together with interest thereon as hereinafter mentioned shall be paid monthly in instalments of £20 each payable monthly on the 7th day of each and every succeeding month, commencing on the 7th day of February, 1957 . . . Notwithstanding anything herein contained, it is specially D agreed that whatever balance shall be owing by the purchaser on the 11th day of January, 1961, in respect of the purchase price and interest shall be paid in full on that date . . .'

The purchaser, in terms of this agreement, paid over to the respondent the initial deposit of £400 and the respondent retained £300 thereof as its commission. The purchaser was unable after the lapse of a year to E fulfil his obligations under his contract of sale with the appellant and the contract was accordingly cancelled. The appellant then sued the respondent in the magistrate's court for the sum of £200, abandoning the amount of £100 in order to bring the claim within the jurisdiction of the magistrate. The magistrate entered judgment for the respondent with...