Christou v Christoudoulou

• Jurisdiction: South Africa
• Judge: Snyman AJ and Badenhorst AJ
• Judgment Date: 19 August 1958
• Court: Transvaal Provincial Division
• Hearing Date: 19 August 1958
• Citation: 1959 (1) SA 586 (T)

Christou v Christoudoulou
1959 (1) SA 586 (T)

1959 (1) SA p586

Citation	1959 (1) SA 586 (T)
Court	Transvaal Provincial Division
Judge	Snyman AJ and Badenhorst AJ
Heard	August 19, 1958
Judgment	August 19, 1958

Flynote : Sleutelwoorde

Contract — Formation — Admission of an obligation in an existing contract — Such not capable of affording a separate cause of action unless it amounts to a novation.

Headnote : Kopnota

B There is no such juristic concept as an admission of an obligation in an existing contract so divorced from that contract as to form a separate cause of action, and capable of proof without reference to the contract to which it relates. It is only where admissions are so made as to constitute fresh or novated undertakings, that they can be sued on. C

Case Information

Appeal from a decision in a magistrate's court. The facts appear from the reasons for judgment.

H. J. Preiss, for the appellant.

P v Lowenthal, for the respondent.

Judgment

Snyman, A.J.:

The respondent in this appeal, (the plaintiff in the magistrate's court), sued the appellant, (the defendant in the D magistrate's court), for the sum of £105. The particulars of claim to the summons sets out two claims: firstly for the payment of the sum of £100 and secondly for the payment of £5. This appeal is in respect of the first claim only.

E The first paragraph of the particulars of claim in the summons deals with the sum of £100 which it is said has been duly ceded to the plaintiff on or about the 25th July, 1957 and was payable by the defendant in terms of an agreement dated 11th January, 1957, entered into between the defendant and the cedent.

Then in para. 3 of the particulars of claim the plaintiff says:

F 'That thereafter on or about the 1st August, 1957, and at Johannesburg aforesaid, it was agreed between plaintiff's attorneys of record herein, duly authorised thereto and the defendant that the defendant would make payment of the said sum of £100 to the said attorneys on behalf of the said plaintiff at their offices in Johannesburg by not later than the 20th day of August, 1957, together with an agreed amount of £5 for legal costs incurred by plaintiff in connection with the recovery of the aforesaid sum of £100.'

G The summons goes on to allege that 'the whole cause of action arose within the jurisdiction of this Honourable Court.'

This last allegation was necessary in order to give the Johannesburg magistrate's court jurisdiction in terms of sec. 28 (d) of the Magistrates' Courts Act of 1944. After further particulars had been asked for and given, the plaintiff applied for summary judgment. This was not proceeded with but the cause of action is set out in the H affidavit applying for...