BMW Financial Services (SA) (Pty) Ltd v Finlay and Others (55858/10; 55860/10; 56219/10) [2017] ZAGPPHC 181 (24 February 2017)

BMW Financial Services (SA) (Pty) Ltd v Finlay and Others (55858/10; 55860/10; 56219/10) [2017] ZAGPPHC 181 (24 February 2017)

The court found, on a balance of probabilities, that the oral representation by BMW's agent, Steyn, was made to Dixon and conveyed to Tabata, who relied on it in concluding the sale of shares. Tabata was not certain which suretyships he had signed and acted on the representation to his detriment. The court held that the suretyship agreement did not preclude oral cancellation, following the authority in Morgan, and that the requirements for estoppel were satisfied. The plaintiff failed to call a key witness, Humphries, to rebut the defendant's case, justifying an adverse inference. The alternative argument for a tacit term was rejected as not justified by the circumstances. Accordingly,...

Citation
[2017] ZAGPPHC 181
Parties
Plaintiff: BMW Financial Services (SA) (Pty) Ltd; Defendant: Sean Alister Finlay; Defendant: Dumisani Dumekhaya Tabata; Defendant: John Levallon Pascoe; Defendant: Two Ships Trading 148 (Pty) Ltd; Defendant: Amabubesi Motor Trading Group (Pty) Ltd
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
24 February 2017
Case Number
55858/2010; 55860/2010; 56219/2010
Procedural Posture
Civil Trial / Judgment After Trial on Merits; Claim Against Second Defendant Only
Outcome
Plaintiff's claim against the second defendant is dismissed with costs.
Judges
Hughes
Legal Topics
Suretyship, Estoppel, Oral Cancellation, Contractual Terms, Burden of Proof
Commercial and Corporate Civil Procedure Suretyship Estoppel Oral Cancellation Contractual Terms Burden of Proof

Case Brief

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Parties

BMW Financial Services (SA) (Pty) Ltd

Plaintiff

Sean Alister Finlay

Defendant

Dumisani Dumekhaya Tabata

Defendant

John Levallon Pascoe

Defendant

Two Ships Trading 148 (Pty) Ltd

Defendant

Amabubesi Motor Trading Group (Pty) Ltd

Defendant

Procedural Posture

Civil Trial / Judgment After Trial on Merits; Claim Against Second Defendant Only

Legal Issues

  1. 1 Whether the oral representation by BMW's agent constituted a release of the suretyship agreement with Tabata.
  2. 2 Whether Tabata is entitled to rely on estoppel to avoid liability under the suretyship.
  3. 3 Whether the suretyship agreement required written cancellation or permitted oral cancellation.

Ratio Decidendi

The court found, on a balance of probabilities, that the oral representation by BMW's agent, Steyn, was made to Dixon and conveyed to Tabata, who relied on it in concluding the sale of shares. Tabata was not certain which suretyships he had signed and acted on the representation to his detriment. The court held that the suretyship agreement did not preclude oral cancellation, following the authority in Morgan, and that the requirements for estoppel were satisfied. The plaintiff failed to call a key witness, Humphries, to rebut the defendant's case, justifying an adverse inference. The alternative argument for a tacit term was rejected as not justified by the circumstances. Accordingly,...

Court Disposition

Plaintiff's claim against the second defendant is dismissed with costs.

Orders

  • The plaintiff’s claim against the second defendant, Dumisani Tabata, is dismissed with costs, including costs of senior counsel.
  • The case against the third defendant is postponed by consent.