Dereck v Gardel [2008] ZAGPHC 443; 17434/05, 17436/05 (19 September 2008)

Dereck v Gardel [2008] ZAGPHC 443; 17434/05, 17436/05 (19 September 2008)

The court found the plaintiff to be a credible witness and the defendant's version to be unreliable and riddled with untruths. The documentary evidence and probabilities overwhelmingly supported the plaintiff's contention that the payments were loans, not venture capital or share capital. There was no evidence that the plaintiff held any shareholding in the company, nor that the debts were extinguished by the acknowledgment of debt. The references to the Wildlife Trust were satisfactorily explained and irrelevant to the liability. The court held that the plaintiff succeeded in proving his claim on a balance of probabilities.

Citation
[2008] ZAGPHC 443
Parties
Plaintiff: Joubert Dereck; Defendant: Gardel's Dinner Dance Martini Bar (Pty) Limited; Defendant: Burdett, Donald Marshall John
Court
High Courts - Gauteng
Jurisdiction
South Africa
Judgment Date
19 September 2008
Case Number
17434/05 and 17436/05
Procedural Posture
Civil Trial / Trial Judgment
Outcome
Judgment for the plaintiff in both consolidated cases.
Judges
Willis
Legal Topics
Oral Contract, Loan Agreement, Shareholding Dispute, Amendment of Claim, Summary Judgment, Burden of Proof
Commercial and Corporate Civil Procedure Oral Contract Loan Agreement Shareholding Dispute Amendment of Claim Summary Judgment Burden of Proof

Case Brief

Summary, issues, holding and outcome

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Parties

Joubert Dereck

Plaintiff

Gardel's Dinner Dance Martini Bar (Pty) Limited

Defendant

Burdett, Donald Marshall John

Defendant

Procedural Posture

Civil Trial / Trial Judgment

Legal Issues

  1. 1 Whether the payments made by the plaintiff to the company and the defendant were loans or venture capital.
  2. 2 Whether the plaintiff is entitled to repayment of the amounts claimed from the company and the defendant.
  3. 3 Whether the defendant's version that the debts were extinguished by an acknowledgment of debt is credible.

Ratio Decidendi

The court found the plaintiff to be a credible witness and the defendant's version to be unreliable and riddled with untruths. The documentary evidence and probabilities overwhelmingly supported the plaintiff's contention that the payments were loans, not venture capital or share capital. There was no evidence that the plaintiff held any shareholding in the company, nor that the debts were extinguished by the acknowledgment of debt. The references to the Wildlife Trust were satisfactorily explained and irrelevant to the liability. The court held that the plaintiff succeeded in proving his claim on a balance of probabilities.

Court Disposition

Judgment for the plaintiff in both consolidated cases.

Orders

  • In case number 17434/05, the defendant is ordered to pay the plaintiff R1,246,202, interest at 8% per annum from the date of service of summons to date of payment, and costs of suit.
  • In case number 17436/05, the identical order is made: the defendant is ordered to pay the plaintiff R1,246,202, interest at 8% per annum from the date of service of summons to date of payment, and costs of suit.