Agile Capital Holdings (Pty) Ltd v 68 Melville Road Properties (Pty) Ltd (A5048/2022) [2024] ZAGPJHC 396 (23 April 2024)

Agile Capital Holdings (Pty) Ltd v 68 Melville Road Properties (Pty) Ltd (A5048/2022) [2024] ZAGPJHC 396 (23 April 2024)

The court held that FA6 was hearsay evidence, but its probative value was not challenged by the appellant, who did not dispute the veracity of its contents. The absence of a confirmatory affidavit from the author was not fatal in the circumstances, as the appellant accepted the correctness of the calculation and did not suffer prejudice from its admission. The court exercised its discretion under section 3(1)(c) of the Law of Evidence Amendment Act to admit FA6 in the interests of justice. Regarding jurisdiction, the court found that clause 4.4 of the sale agreement only applied to disputes about the determination of the Total Base Development Cost, which was not in issue. The appellant...

Citation
[2024] ZAGPJHC 396
Parties
Appellant: Agile Capital Holdings (Pty) Ltd; Respondent: 68 Melville Road Properties (Pty) Ltd
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
23 April 2024
Case Number
A5048/2022
Procedural Posture
Civil Appeal / Appeal From Order of Court a Quo; Leave to Appeal Granted
Outcome
Appeal dismissed; costs awarded against the appellant on an attorney and client scale.
Judges
B. Vally, R. Strydom, B. Ford
Legal Topics
Contractual Interpretation, Hearsay Evidence, Expert Determination, Admissibility of Evidence
Commercial and Corporate Civil Procedure Contractual Interpretation Hearsay Evidence Expert Determination Admissibility of Evidence

Case Brief

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Parties

Agile Capital Holdings (Pty) Ltd

Appellant

68 Melville Road Properties (Pty) Ltd

Respondent

Procedural Posture

Civil Appeal / Appeal From Order of Court a Quo; Leave to Appeal Granted

Legal Issues

  1. 1 Whether the document FA6, prepared by DHP Quantity Surveyors, is admissible as evidence without a confirmatory affidavit from its author.
  2. 2 Whether the High Court had jurisdiction to adjudicate the dispute, or whether the matter should have been referred to expert determination by a quantity surveyor under clause 4.4 of the sale agreement.

Ratio Decidendi

The court held that FA6 was hearsay evidence, but its probative value was not challenged by the appellant, who did not dispute the veracity of its contents. The absence of a confirmatory affidavit from the author was not fatal in the circumstances, as the appellant accepted the correctness of the calculation and did not suffer prejudice from its admission. The court exercised its discretion under section 3(1)(c) of the Law of Evidence Amendment Act to admit FA6 in the interests of justice. Regarding jurisdiction, the court found that clause 4.4 of the sale agreement only applied to disputes about the determination of the Total Base Development Cost, which was not in issue. The appellant...

Court Disposition

Appeal dismissed; costs awarded against the appellant on an attorney and client scale.

Orders

  • The appeal is dismissed.
  • The appellant is to pay the costs of the appeal, including the costs of two counsel where two counsel were employed, and which costs are to be taxed on an attorney and client scale.