Amandlagcf Construction CC v Tresso Developments (Pty) Ltd and Others (11087/2022) [2023] ZAWCHC 209 (17 August 2023)

Amandlagcf Construction CC v Tresso Developments (Pty) Ltd and Others (11087/2022) [2023] ZAWCHC 209 (17 August 2023)

The applicant failed to produce any written contract or evidence of a tacit agreement with Tresso. Its affidavits did not set out a cause of action, nor did it identify any representative of Tresso who concluded or ratified a contract. The application for referral to oral evidence was a fishing expedition, seeking to elicit facts not present in the affidavits. Tresso’s denial of liability was unequivocal and consistent, and the applicant did not dislodge the essential facts of Tresso’s defence. The applicant’s litigation conduct was abusive, warranting punitive costs. The application for referral to oral evidence and the main application against Tresso were dismissed with costs on an...

Citation
[2023] ZAWCHC 209
Parties
Applicant: Amandlagcf Construction CC; Respondent: Tresso Developments (Pty) Ltd; Respondent: Deca Consulting Engineers CC; Respondent: Anton Oberholzer; Respondent: JITW Developments (Pty) Ltd
Court
Western Cape High Court, Cape Town
Jurisdiction
South Africa
Judgment Date
17 August 2023
Case Number
11087/2022
Procedural Posture
Civil Application / Application for Referral to Oral Evidence and Judgment on Main Application
Outcome
Application for referral to oral evidence refused; main application against Tresso dismissed with costs on attorney and client scale.
Judges
K Hofmeyr
Legal Topics
Referral to Oral Evidence, Tacit Contract, Ratification, Unjust Enrichment, Attorney Client Costs
Civil Procedure Commercial and Corporate Referral to Oral Evidence Tacit Contract Ratification Unjust Enrichment Attorney Client Costs

Case Brief

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Parties

Amandlagcf Construction CC

Applicant

Tresso Developments (Pty) Ltd

Respondent

Deca Consulting Engineers CC

Respondent

Anton Oberholzer

Respondent

JITW Developments (Pty) Ltd

Respondent

Procedural Posture

Civil Application / Application for Referral to Oral Evidence and Judgment on Main Application

Legal Issues

  1. 1 Whether the applicant has established a cause of action against Tresso Developments (Pty) Ltd for payment under a written or tacit contract.
  2. 2 Whether the application for referral to oral evidence constitutes a fishing expedition and should be refused.
  3. 3 Whether the applicant is entitled to judgment against Tresso Developments (Pty) Ltd.

Ratio Decidendi

The applicant failed to produce any written contract or evidence of a tacit agreement with Tresso. Its affidavits did not set out a cause of action, nor did it identify any representative of Tresso who concluded or ratified a contract. The application for referral to oral evidence was a fishing expedition, seeking to elicit facts not present in the affidavits. Tresso’s denial of liability was unequivocal and consistent, and the applicant did not dislodge the essential facts of Tresso’s defence. The applicant’s litigation conduct was abusive, warranting punitive costs. The application for referral to oral evidence and the main application against Tresso were dismissed with costs on an...

Court Disposition

Application for referral to oral evidence refused; main application against Tresso dismissed with costs on attorney and client scale.

Orders

  • The applicant’s application for referral to oral evidence is refused, with costs on an attorney and client scale.
  • The applicant’s main application against the first respondent is dismissed, with costs on an attorney and client scale.