Du Toit v Bredenkamp and Another (42609/11) [2013] ZAGPJHC 21 (13 February 2013)

Du Toit v Bredenkamp and Another (42609/11) [2013] ZAGPJHC 21 (13 February 2013)

The court found that clause 6.2 of the agreement did not impose a duty on any particular party to confirm the amount of the plaintiff's loan account. The word 'confirmation' was ambiguous in context, and evidence aliunde was permissible to determine its meaning. The reconciliation provided by Ms de Vries within the...

Source-derived case information.

Citation
[2013] ZAGPJHC 21
Parties
Plaintiff: Ernest Jacques Du Toit; Defendant: Margaret Wynne Bredenkamp; Defendant: Gary Mark Carlisle
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
13 February 2013
Case Number
42609/11
Procedural Posture
Civil Trial / Absolution From the Instance After Closure of Plaintiff's Case
Outcome
Defendants absolved from the instance; plaintiff ordered to pay costs.
Judges
FHD Van Oosten
Legal Topics
Contract Interpretation, Loan Account Repayment, Absolution From the Instance
Commercial and Corporate Civil Procedure Contract Interpretation Loan Account Repayment Absolution From the Instance

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Parties

Ernest Jacques Du Toit

Plaintiff

Margaret Wynne Bredenkamp

Defendant

Gary Mark Carlisle

Defendant

Procedural Posture

Civil Trial / Absolution From the Instance After Closure of Plaintiff's Case

Legal Issues

  1. 1 Whether the defendants were obliged to confirm the amount of the plaintiff's loan account within 10 days as per clause 6.2 of the agreement.
  2. 2 Whether the deeming provision in clause 6.2 was triggered, making the amount of R2,800,000.00 payable to the plaintiff.
  3. 3 Whether the defendants' reconciliation constituted sufficient confirmation to prevent the deeming provision from operating.

Ratio Decidendi

The court found that clause 6.2 of the agreement did not impose a duty on any particular party to confirm the amount of the plaintiff's loan account. The word 'confirmation' was ambiguous in context, and evidence aliunde was permissible to determine its meaning. The reconciliation provided by Ms de Vries within the required period constituted sufficient confirmation, establishing the correctness of the amount owing and preventing the deeming provision from operating. The plaintiff's reliance on the deeming provision was misplaced, and his proposed expert evidence was irrelevant to the pleaded cause of action. Consequently, the defendants were entitled to absolution from the instance.

Court Disposition

Defendants absolved from the instance; plaintiff ordered to pay costs.

Orders

  • The defendants are absolved from the instance.
  • The plaintiff is ordered to pay the costs of the action.