Constantine Investments (Pty) Ltd v Du Preez [2008] ZAGPHC 441; A3104/07, A3103/07 (4 August 2008)

Constantine Investments (Pty) Ltd v Du Preez [2008] ZAGPHC 441; A3104/07, A3103/07 (4 August 2008)

The court found that the magistrate erred in granting absolution from the instance, as the plaintiff's case, although not without difficulties, presented sufficient evidence of a valid lease agreement and arrear rentals due to require an answer from the defendant. The matter should be referred back to the magistrate to continue as if absolution had not been granted, allowing the trial to proceed and all evidence to be considered before a final determination is made. The costs of the appeal are to be costs in the respective trial actions, as the ultimate outcome remains uncertain and will depend on the full conspectus of evidence presented at trial.

Citation
[2008] ZAGPHC 441
Parties
Appellant: Constantine Investments (Pty) Ltd; Respondent: Du Preez, Mariska
Court
High Courts - Gauteng
Jurisdiction
South Africa
Judgment Date
4 August 2008
Case Number
A3104/07, A3103/07
Procedural Posture
Civil Appeal / Appeal Against Absolution From the Instance at Close of Plaintiff's Case
Outcome
Appeal upheld; order of absolution from the instance set aside; matter referred back to magistrate for continuation; costs of appeal to be costs in the trial actions.
Judges
Willis, Maluleke
Legal Topics
Absolution From the Instance, Lease Agreement, Arrear Rentals, Damages for Breach
Civil Procedure Land and Property Absolution From the Instance Lease Agreement Arrear Rentals Damages for Breach

Case Brief

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Parties

Constantine Investments (Pty) Ltd

Appellant

Du Preez, Mariska

Respondent

Procedural Posture

Civil Appeal / Appeal Against Absolution From the Instance at Close of Plaintiff's Case

Legal Issues

  1. 1 Whether the magistrate was correct in granting absolution from the instance at the close of the plaintiff's case.
  2. 2 Whether the plaintiff established a prima facie case based on the lease agreement and arrear rentals.
  3. 3 Whether the matter should be referred back for continuation of trial.

Ratio Decidendi

The court found that the magistrate erred in granting absolution from the instance, as the plaintiff's case, although not without difficulties, presented sufficient evidence of a valid lease agreement and arrear rentals due to require an answer from the defendant. The matter should be referred back to the magistrate to continue as if absolution had not been granted, allowing the trial to proceed and all evidence to be considered before a final determination is made. The costs of the appeal are to be costs in the respective trial actions, as the ultimate outcome remains uncertain and will depend on the full conspectus of evidence presented at trial.

Court Disposition

Appeal upheld; order of absolution from the instance set aside; matter referred back to magistrate for continuation; costs of appeal to be costs in the trial actions.

Orders

  • The appeal is upheld.
  • The order of absolution from the instance, with costs in each case, is set aside.