Gushman NO and Another v Traut NO and Others (3981/2012) [2012] ZAFSHC 217 (22 November 2012)

Gushman NO and Another v Traut NO and Others (3981/2012) [2012] ZAFSHC 217 (22 November 2012)

The court found that the written cession agreement should be rectified as this relief was not opposed by respondents. However, applicants failed to prove repudiation or breach of contract by respondents. The evidence showed that respondents withheld further financing due to unresolved management issues within Centrepoint, not as a deliberate intention to abandon the agreements. The court held that applicants were not entitled to cancel the agreements or claim restitution, as Centrepoint, not the applicants, was the proper party to seek such relief. The contractual arrangements did not amount to a sale of shares, as no consideration was agreed upon, and the applicants had no reciprocal...

Citation
[2012] ZAFSHC 217
Parties
Applicant: Larrington Phendule Gushman N.O.; Applicant: Mpoyana Lazarus Ledwaba N.O.; Respondent: Louis Jonas Traut N.O.; Respondent: Walter Schultze N.O.; Respondent: Centrepoint Developments (Pty) Ltd
Court
Free State High Court, Bloemfontein
Jurisdiction
South Africa
Judgment Date
22 November 2012
Case Number
3981/2012
Procedural Posture
Urgent Application / Application for Rectification and Contractual Relief
Outcome
Application granted only to the extent of rectification of the written cession agreement; all other relief dismissed with costs.
Judges
J P Daffue
Legal Topics
Rectification of Contract, Contract for Benefit of Third Party, Repudiation, Restitution, Shareholder Dispute
Commercial and Corporate Civil Procedure Rectification of Contract Contract for Benefit of Third Party Repudiation Restitution Shareholder Dispute

Case Brief

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Parties

Larrington Phendule Gushman N.O.

Applicant

Mpoyana Lazarus Ledwaba N.O.

Applicant

Louis Jonas Traut N.O.

Respondent

Walter Schultze N.O.

Respondent

Centrepoint Developments (Pty) Ltd

Respondent

Procedural Posture

Urgent Application / Application for Rectification and Contractual Relief

Legal Issues

  1. 1 Whether the written cession agreement should be rectified.
  2. 2 Whether applicants are entitled to confirmation of cancellation of the written cession agreement and associated oral agreement.
  3. 3 Whether applicants are entitled to restitution and transfer of 51% shares in Centrepoint against payment.

Ratio Decidendi

The court found that the written cession agreement should be rectified as this relief was not opposed by respondents. However, applicants failed to prove repudiation or breach of contract by respondents. The evidence showed that respondents withheld further financing due to unresolved management issues within Centrepoint, not as a deliberate intention to abandon the agreements. The court held that applicants were not entitled to cancel the agreements or claim restitution, as Centrepoint, not the applicants, was the proper party to seek such relief. The contractual arrangements did not amount to a sale of shares, as no consideration was agreed upon, and the applicants had no reciprocal...

Court Disposition

Application granted only to the extent of rectification of the written cession agreement; all other relief dismissed with costs.

Orders

  • The written cession agreement entered into between the parties is rectified in accordance with prayer 2 of the notice of motion.
  • Save for the above, the application is dismissed with costs.