De Villers v Goosen (2009/23474) [2012] ZAGPJHC 199 (23 October 2012)

De Villers v Goosen (2009/23474) [2012] ZAGPJHC 199 (23 October 2012)

The court found that the written acknowledgment of debt did not correctly reflect the true agreement reached between the defendant and Ronald Irvine at the August 2006 family meetings. The evidence of both Mr Goosen and Mrs Dixon, who were present at the meetings, supported the defendant's claim that the obligation to pay would terminate upon Mr Irvine's death. The plaintiff, as cessionary, was not present at the negotiations and her evidence was based on subsequent statements by Mr Irvine. The court held that there was nothing inherently improbable about the family arrangement and that the oral evidence outweighed the absence of the critical term in the written AoD. Accordingly, the...

Citation
[2012] ZAGPJHC 199
Parties
Plaintiff: De Villers Susannah Petro; Defendant: Goosen Grenville Richard
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
23 October 2012
Case Number
2009/23474
Procedural Posture
Civil Trial / Judgment After Trial
Outcome
Plaintiff's claim dismissed. Defendant's counterclaim for rectification granted.
Judges
Whitcutt
Legal Topics
Rectification of Contract, Acknowledgment of Debt, Cession of Claim, Onus of Proof, Family Arrangement
Civil Procedure Commercial and Corporate Rectification of Contract Acknowledgment of Debt Cession of Claim Onus of Proof Family Arrangement

Case Brief

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Parties

De Villers Susannah Petro

Plaintiff

Goosen Grenville Richard

Defendant

Procedural Posture

Civil Trial / Judgment After Trial

Legal Issues

  1. 1 Whether the written acknowledgment of debt (AoD) should be rectified to reflect the true agreement reached between the parties.
  2. 2 Whether the obligation to pay under the AoD terminated upon the death of the creditor, Ronald Irvine.
  3. 3 Whether the National Credit Act applies to the AoD if rectification is not granted.

Ratio Decidendi

The court found that the written acknowledgment of debt did not correctly reflect the true agreement reached between the defendant and Ronald Irvine at the August 2006 family meetings. The evidence of both Mr Goosen and Mrs Dixon, who were present at the meetings, supported the defendant's claim that the obligation to pay would terminate upon Mr Irvine's death. The plaintiff, as cessionary, was not present at the negotiations and her evidence was based on subsequent statements by Mr Irvine. The court held that there was nothing inherently improbable about the family arrangement and that the oral evidence outweighed the absence of the critical term in the written AoD. Accordingly, the...

Court Disposition

Plaintiff's claim dismissed. Defendant's counterclaim for rectification granted.

Orders

  • The written Acknowledgment of Debt dated 1 December 2006 is rectified by the addition of a clause providing that in the event of the death of the creditor before payment of the amount of R850,000, any remaining outstanding balance will be regarded as written off and no further amounts shall be payable by the debtor.
  • The plaintiff's claim is dismissed.