Gopee v Hurdeen
| Jurisdiction | South Africa |
| Judge | Henriques J |
| Judgment Date | 09 February 2018 |
| Docket Number | 13440/2011 |
| Court | KwaZulu-Natal Division, Durban |
| Hearing Date | 26 May 2014 |
| Citation | 2018 JDR 0153 (KZD) |
Henriques J:
The applicant's claim is for specific performance emanating from an alleged agreement concluded between the applicant and the late Gangaram Hurdeen (the deceased) dated 16th November 2000.
The applicant instituted motion proceedings against the respondents seeking inter alia a declarator directing the first respondent to sign all documents and carry out all acts necessary to transfer to the applicant a public permit with registration number PMD1310571/1.
Applicant's case
The applicant in support of her claim relied on the averments contained in the affidavit of Sudesh Ramdas, her son, the general manager of Springfield Omnibus Services (Durban) CC.
It is contended that an agreement of purchase and sale was concluded whereby the deceased sold to the applicant the public bus permit held
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Henriques J
in the name of Newlands West Transport (Pty) Ltd, for a purchase consideration of R 90 000-00.
The agreement contained suspensive conditions and was contingent upon the deceased acquiring transfer of the permit into his name. In effect, the deceased had sold his right, title and interest in and to the permit to the applicant.
The deceased died on 09 December 2002 and the permit subsequently vested in the deceased's estate and was thereafter transferred to the First Respondent who collected same on or about 24 June 2011.
First respondent's case
The first respondent raised various defences in his answering affidavit, supplementary affidavit and further supplementary affidavit filed just prior to the hearing of the opposed application;
I propose dealing with a summary of the defences as set out hereunder:-
The applicant's locus standi
The first respondent contends that there is no causal nexus between the applicant and the first respondent in that at the time of concluding the purchase and sale agreement, registration of the permit vested in the company. On a proper construction of the agreement it is clear that the deceased sold a contingent right which he would acquire in the future and ex facie the agreement the applicant is a contracting party. The first respondent's contention is ill conceived in that the concept of locus standi relates to the legal capacity to sue and not to the validity or efficacy of the underlying claim or agreement. There is accordingly no merit in such defence.
First respondent's authority/locus standi
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Henriques J
It is clear from the papers that the public permit subsequently vested in the deceased's estate and was thereafter transferred to the first respondent.
As previously alluded to, the sale was premised on the contingency that the deceased would acquire registration of the permit in his name, hence the deceased's right would come into existence in the future. This eventuality occurred albeit after the death of the deceased. There is accordingly no merit in the contention that the deceased did not have the right to sell his right, title and interest in and to the permit and equally the defence that the deceased lacked locus standi is without legal premise.
Successful challenge under Case No. 9019/2000
The suggestion that the agreement of sale was successfully impugned under the above case number is simply devoid of factual substance and I need not delay myself any further with this defence; [1]
Prescription
The respondent contends that the applicant's claim has prescribed by the effluxion of time since the signature of the agreement, subsequent death of the deceased and until the date the application was instituted. The term debt as defined in the Prescription Act has been cogently interpreted by the Constitutional Court in the case of Makate vs Vodacom (Pty) Ltd (CCT52/15) (2016) ZACC 13 (26 April 2016). The Constitutional Court ruled that the concept debt should not be given a wider meaning than its ordinary interpretation. In finding that the deceased had sold a future right, it is axiomatically reasonable to conclude that prescription in respect of the claim of the applicant would commence on the occurrence of the future event or the enforcement of such event. In the premises, I find that the defence of prescription is without substance.
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Henriques J
The Road Transportation Act/National Land Transport Transition Act and National Land Transport Act
The first respondent's reliance on the above legislation in substantiation of its...
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