Goosen v van Blerk NO (3123/1999) [2013] ZAECPEHC 28 (11 June 2013)

Goosen v van Blerk NO (3123/1999) [2013] ZAECPEHC 28 (11 June 2013)

The court found that the plaintiff failed to discharge the onus of proving a prior oral agreement regarding the five meter high embankment wall. The written agreement, correspondence, and plaintiff's own testimony did not establish the existence of such a term or a common mistake. The plaintiff's evidence was insufficient and lacked corroboration, especially given the absence of any reference to the alleged oral agreement in pre-litigation correspondence and pleadings for over a decade. The applicable legislation did not require inclusion of the embankment wall height as a term, and the plaintiff's reliance on statutory definitions was misplaced. Consequently, rectification was refused....

Citation
[2013] ZAECPEHC 28
Parties
Plaintiff: Gerhard Goosen; Defendant: Bernardus Pieter van Blerk N.O.
Court
Eastern Cape High Court, Port Elizabeth
Jurisdiction
South Africa
Judgment Date
11 June 2013
Case Number
3123/1999
Procedural Posture
Civil Trial / Final Judgment
Outcome
Plaintiff's claim dismissed; defendant's counterclaim upheld.
Judges
Chetty
Legal Topics
Rectification of Contract, Onus of Proof, Defective Workmanship, Damages for Breach, Expert Evidence
Commercial and Corporate Civil Procedure Rectification of Contract Onus of Proof Defective Workmanship Damages for Breach Expert Evidence

Case Brief

Summary, issues, holding and outcome

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Parties

Gerhard Goosen

Plaintiff

Bernardus Pieter van Blerk N.O.

Defendant

Procedural Posture

Civil Trial / Final Judgment

Legal Issues

  1. 1 Whether the written agreement should be rectified to include a term regarding a five meter high embankment wall.
  2. 2 Whether the plaintiff discharged the onus to prove a prior oral agreement for rectification.
  3. 3 Whether the plaintiff performed his contractual obligations under the agreement.

Ratio Decidendi

The court found that the plaintiff failed to discharge the onus of proving a prior oral agreement regarding the five meter high embankment wall. The written agreement, correspondence, and plaintiff's own testimony did not establish the existence of such a term or a common mistake. The plaintiff's evidence was insufficient and lacked corroboration, especially given the absence of any reference to the alleged oral agreement in pre-litigation correspondence and pleadings for over a decade. The applicable legislation did not require inclusion of the embankment wall height as a term, and the plaintiff's reliance on statutory definitions was misplaced. Consequently, rectification was refused....

Court Disposition

Plaintiff's claim dismissed; defendant's counterclaim upheld.

Orders

  • The plaintiff's claim for rectification is refused and the action dismissed.
  • The counterclaim succeeds and the plaintiff is ordered to pay the defendant the sum of R250,000.00 together with interest thereon at the legal rate of 15.5% per annum a tempore morae.