Gibson and Another v De Lange (AR 547/09) [2010] ZAKZPHC 60 (13 September 2010)

Gibson and Another v De Lange (AR 547/09) [2010] ZAKZPHC 60 (13 September 2010)

The court found that the respondent discharged the onus of proving an oral agreement to cancel the contract and that the appellants undertook to repay the investment. The respondent's evidence was credible, supported by contemporaneous notes, and the appellants' version was inconsistent with their pleadings and evidence. The court rejected the argument that the respondent needed to use the word 'cancel' explicitly, finding that the substance of the agreement was clear. The court held that, even absent an express repayment term, the law presumes a tacit obligation to restore what was delivered in part performance upon cancellation. The appeal was dismissed, and the respondent was entitled...

Citation
[2010] ZAKZPHC 60
Parties
Appellant: Walter McKenzie Gibson; Appellant: Elizabeth Arlene Marcelle Gibson; Respondent: Daniel Petrus De Lange
Court
Kwazulu-Natal High Court, Pietermaritzburg
Jurisdiction
South Africa
Judgment Date
13 September 2010
Case Number
AR 547/09
Procedural Posture
Civil Appeal / Appeal From Judgment of Balton J in the Court a Quo
Outcome
Appeal dismissed. Judgment of the court a quo upheld.
Judges
K Swain, Ntshangase, Msimang
Legal Topics
Contract Cancellation, Restitution, Onus of Proof, Oral Agreement, Repudiation
Commercial and Corporate Civil Procedure Contract Cancellation Restitution Onus of Proof Oral Agreement Repudiation

Case Brief

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Parties

Walter McKenzie Gibson

Appellant

Elizabeth Arlene Marcelle Gibson

Appellant

Daniel Petrus De Lange

Respondent

Procedural Posture

Civil Appeal / Appeal From Judgment of Balton J in the Court a Quo

Legal Issues

  1. 1 Whether the respondent proved the existence of an oral agreement to cancel the contract and for repayment of R400,000.00.
  2. 2 Whether the appellants' conduct amounted to unilateral termination or repudiation of the contract.
  3. 3 Whether the respondent was entitled to restitution of the investment made in Project 627.

Ratio Decidendi

The court found that the respondent discharged the onus of proving an oral agreement to cancel the contract and that the appellants undertook to repay the investment. The respondent's evidence was credible, supported by contemporaneous notes, and the appellants' version was inconsistent with their pleadings and evidence. The court rejected the argument that the respondent needed to use the word 'cancel' explicitly, finding that the substance of the agreement was clear. The court held that, even absent an express repayment term, the law presumes a tacit obligation to restore what was delivered in part performance upon cancellation. The appeal was dismissed, and the respondent was entitled...

Court Disposition

Appeal dismissed. Judgment of the court a quo upheld.

Orders

  • The appeal is dismissed.
  • The appellants are ordered to pay the respondent's costs of the appeal, including the wasted costs of the adjourned hearing on 23 July 2010.