Division: Supreme Court of Appeal
Case No: 555/03
Date of hearing: 3 November 2004
Date of delivery: 19 November 2004
Coram: Scott, Mthiyane, Brand JJA, Comrie et Patel AJJA
In this case the Supreme Court of Appeal upheld an appeal against a decision of the High Court, Pretoria. Here it was held that the appellant, who had purchased immovable property at a public auction, was on the accepted facts a "nominee" for someone whom he, in turn, had the right to "nominate" as a purchaser.
The crux for the SCA was whether the appellant fell within the purview of clause 16 of the Conditions of Sale thereby rendering him liable as surety and co-principal debtor for the obligations of the purchaser (Moosa). It reads as follows:
16. In the event of the Purchaser being a company, a corporation or a partnership, or in the event of the Purchaser signing as a nominee or a trustee then and in all such events the person signing these conditions shall be deemed to have bound himself as surety and co-principal debtor for all the obligations of the Purchaser and, if applicable, jointly and severally with any other person signing these conditions on behalf of the Purchaser and hereby renounces the benefits of excussion and division, no value received and errors in calculation, the effect of which he acknowledges to be aware.
In deciding whether the appellant was obliged to sign the Conditions of Sale thereby making him liable, the court relied upon the true nature of the oral agreement between the appellant and the auctioneer before the auction. Based on the appellant's testimony, the court concluded that the agreement was simply that if the appellant purchased the property at the auction he would be permitted, if he so wished, to cede his rights and delegate his obligations as purchaser to another in his stead.
There was therefore no question of the appellant having purchased the property in any capacity other than in his personal capacity. In this sense then in its intended context the meaning of "nominee" was that of an "assignee" or a person to whom rights may be ceded and obligations delegated.