Bruintjies and Another v Ethwar (CA283/2014) [2015] ZAECGHC 114 (14 October 2015)

Bruintjies and Another v Ethwar (CA283/2014) [2015] ZAECGHC 114 (14 October 2015)

The court held that the defence of unilateral error or mistake was not properly raised in the pleadings and was not fully canvassed at trial, thus could not be relied upon. The first appellant's evidence was found to be unreliable and contradictory, and his version of a mistake was rejected. The respondent was a credible witness, and the probabilities favoured his account. The second appellant's liability as indemnity surety had not matured, as the respondent had not exhausted remedies against the first appellant. Therefore, the appeal of the first appellant was dismissed, while the appeal of the second appellant was upheld, and the claim against her was dismissed.

Citation
[2015] ZAECGHC 114
Parties
Appellant: Walton Bruintjies; Appellant: Eveline Bruintjies; Respondent: Sonjar Ethwar
Court
Eastern Cape High Court, Grahamstown
Jurisdiction
South Africa
Judgment Date
14 October 2015
Case Number
CA 283/2014
Procedural Posture
Civil Appeal / Appeal From Magistrate's Court Judgment
Outcome
First appellant's appeal dismissed with costs; second appellant's appeal upheld with costs; claim against second appellant dismissed.
Judges
T Malusi, PW Tshiki
Legal Topics
Breach of Contract, Suretyship, Indemnity Surety, Pleadings and Amendment
Commercial and Corporate Civil Procedure Breach of Contract Suretyship Indemnity Surety Pleadings and Amendment

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 4 Authorities cited 4 Party arguments 2 Amounts and remedies 2
Sign in to unlock

Parties

Walton Bruintjies

Appellant

Eveline Bruintjies

Appellant

Sonjar Ethwar

Respondent

Procedural Posture

Civil Appeal / Appeal From Magistrate's Court Judgment

Legal Issues

  1. 1 Whether the appellants were liable for breach of contract under the dissolution agreement.
  2. 2 Whether the defence of unilateral error or mistake was properly raised and canvassed.
  3. 3 Whether the second appellant's liability as indemnity surety had matured.

Ratio Decidendi

The court held that the defence of unilateral error or mistake was not properly raised in the pleadings and was not fully canvassed at trial, thus could not be relied upon. The first appellant's evidence was found to be unreliable and contradictory, and his version of a mistake was rejected. The respondent was a credible witness, and the probabilities favoured his account. The second appellant's liability as indemnity surety had not matured, as the respondent had not exhausted remedies against the first appellant. Therefore, the appeal of the first appellant was dismissed, while the appeal of the second appellant was upheld, and the claim against her was dismissed.

Court Disposition

First appellant's appeal dismissed with costs; second appellant's appeal upheld with costs; claim against second appellant dismissed.

Orders

  • The appeal by the first appellant is dismissed with costs.
  • The appeal by the second appellant is upheld with costs.