Alli v De Lira

• Judge: Claassen AJP and Bekker J
• Judgment Date: 21 September 1973
• Citation: 1973 (4) SA 635 (T)
• Hearing Date: 12 September 1973
• Court: Transvaal Provincial Division

Bekker, J.:

F Plaintiff (the appellant) sued defendant (respondent) in the magistrate's court for payment of the sum of R110 being in respect of

'goedere verkoop op mark in 1971 deur eiser op spesiale aandrang en versoek van verweerder'.

G The summons was issued on 16th September, 1971. On receipt of the summons defendant informed plaintiff, in effect, that he had issued summons against the wrong person. He advised plaintiff 'that it is not he it is his son who is concerned.' This is then the first occasion on which defendant spoke to him 'as far as this matter is concerned'. The H son referred to is Manuel de Lira. Similar assertion was made in an affidavit filed on the defendant's behalf by his attorney during the course of summary judgment proceedings and before the plea had been filed. In his plea defendant denied that he had bought any goods from plaintiff during that year and, accordingly, denied that he was liable to plaintiff.

It was common cause that defendant in fact never bought any goods from plaintiff. At the trial the case against defendant was that Manuel, in purchasing the goods, fruit and vegetables, acted as agent for defendant

Bekker J

and/or that the latter ratified and/or acquiesced in the transactions and, accordingly, that he was liable. Although this was not specifically pleaded, as I think it should have been done, no point was made of it by A the defendant and the case proceeded on that footing. After plaintiff had testified and closed his case defendant, without closing his case, applied for and obtained an order of absolution from the instance with costs. The ground on which the magistrate granted the application was that there was no prima facie admissible evidence in support of either B the agency, ratification or acquiescence relied on by the plaintiff on which a finding in his favour might be justified. It is against this order that the present appeal is brought.

The following facts are either common cause or have been proved. Manuel is the plaintiff's son, who according to an estimate by plaintiff was 18 to 20 years old and who during the year 1971, apart from earlier cash C purchases, had bought fruit and vegetables from plaintiff at his stall on the market to the value of R110. These purchases were made on credit. Plaintiff had often seen defendant at the market but not in the company of his son; nor had he ever seen the two of them arriving together in the defendant's lorry. He knew defendant was a market gardener who D delivered produce, including vegetables, to market agents for purposes of sale. He had conversed with defendant on occasion but 'not regarding as this business is concerned'. For some eight months prior to the issue of summons (16/9/71) plaintiff had been ill in hospital but in any event had been absent from the market. It is, as mentioned previously, common E cause that plaintiff never had any dealings with defendant but only with his son and that after issue of summons defendant informed him that he should look to the son for payment. This summons was, however, preceded by a letter of demand dated 20th August, 1971, addressed to defendant in the following terms and to which defendant failed to react in any manner whatsoever:

'Geagte meneer,

i.s. Ebrahim Alli Handeldrywende as: Alli Stores/Uself - R110

F Ons is opgedra deur ons kliënt, mnr. Ebrahim Alli, handeldrywende as Alli Stores, om van u te eis, soos ons hiermee doen, die onmiddellike betaling van die bedrag van R110 ten aansien van goedere verkoop op mark in 1971 deur ons kliënt, op u spesiale aandrang en versoek.

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