Sentrakoop Handelaars Bpk v Lourens and Another

• Jurisdiction: South Africa
• Judge: Marais J
• Judgment Date: 17 May 1991
• Citation: 1991 (3) SA 540 (W)
• Hearing Date: 17 May 1991
• Court: Witwatersrand Local Division

Marais J:

The plaintiff sued defendant on various causes of action, all F of which were based on debts alleged to be owed by defendants to the plaintiff directly. Both defendants filed special pleas in which they claimed that the plaintiff was not entitled to sue them and did not have a right of action against them, having been divested thereof by a cession in securitatem debiti dated 6 July 1971, in terms of which the plaintiff ceded to Volkskas Bank Ltd all its right, title and interest G in and to all amounts then owed to it, or which might thereafter be owed to it by any of its then current or future debtors arising out of any cause of indebtedness.

As a response to such pleas, the plaintiff now seeks to amend its particulars of claim by introducing an averment that the plaintiff sues as agent for Volkskas Bank by virtue of the provisions of the written H cession entered into between the plaintiff and Volkskas Bank in July 1971.

It is clear, and it is common cause between the parties, that the effect of the cession in securitatem debiti was to vest the relevant rights of action in the cessionary, that is Volkskas Bank, and similarly, to divest the plaintiff or cedent of such rights. As to this, I see Holzman NO and Another v Knight's Engineering and Precision Works (Pty) Ltd 1979 (2) SA 784 (W) at 792.

Hence the plaintiff can only succeed in the action if it can sue on behalf of or as agent for Volkskas.

The amendment is opposed and the real issue to be decided is whether it is competent for one person to sue as agent for another, to whom the J debt claimed is owed or alleged to be owed.

Marais J

A The plaintiff contends that it is competent for it to sue in that capacity. For this proposition, reliance is placed on a decision of the Provincial Division of the Orange Free State, Clark v Van Rensburg and Another 1964 (4) SA 153 (O).

Before I deal with Clark's case, it is useful to examine earlier authority on this point. The first case that I turn to is Leslie's Trustee v Leslie 1903 TS 701. This is a judgment of the Full Bench of B the Transvaal Court, headed by Innes CJ. There an attorney sued in his own name, but on behalf of a non-resident plaintiff. The headnote reads:

'A petition to the Court made by an agent on behalf of his principal, should be drawn in the name of the principal whose interests are C actually concerned and not in the name of the agent.'

As so often occurs, the headnote is not in the exact words of the judgment, the relevant portion of which reads as follows:

'The Court has over and over again pointed out that when an application is made by a person acting merely in the capacity of attorney, the petition should be in the name of the principal whose D interests are actually concerned.'

Although the judgment refers to a person acting in the capacity of attorney, it seems to me clear that the reference is to an attorney acting as agent and to that extent I think that the headnote correctly reflects what the judgment says.

E In that case the question of whether it was completely invalid or incompetent for the agent to sue in his own name is not raised or decided. However, it seems to me that while the Court is saying that it is procedurally wrong for an agent to sue in his own name on behalf of his principal, that it also tacitly indicated that this procedure, although defective, was not so fatally defective as to vitiate the proceedings. The case of Leslie was so interpreted in Hallis & Co v F Eastern Districts Sporting Club 1909 TS 450 at 452, where Solomon J said:

'Because Alexander was merely acting as their agent, the petition was in fact the petition of Hallis & Co and it should have been so stated on the face of the petition, but I do not think that is a fatal defect. In Leslie's Trustee v Leslie 1903 TS 701 it was pointed out that a petition G by an agent on behalf of a principal should be drawn in the name of the principal, but the fact that it was drawn in the name of the agent was not held to be a fatal defect in that case, and I do not think that it should be so treated now. In any case, it was the simplest matter to amend the petition and put it in order, but personally I do not think that merely because there is such a defect in the petition, it should be treated as a fatal defect and that the rule nisi should have been discharged on that ground.' H

The case of Hallis and Co was further commented on in the Transvaal Provincial Division by Williamson J in Witwatersrand and District Nursery Trades Association and Others v Herholdt 1956 (4) SA 361 (T) at 364G, where the following is said:

'The second point is whether in any event...