Hamilsplit (EDMS) Bpk and Another v Erasmus and Another (4483/2005) [2007] ZAFSHC 98 (20 September 2007)

Hamilsplit (EDMS) Bpk and Another v Erasmus and Another (4483/2005) [2007] ZAFSHC 98 (20 September 2007)

The court found that the plaintiffs failed to discharge the onus of proving, on a balance of probabilities, that the first defendant orally agreed to assume liability for the repayment of commission ('vervallings') as alleged. The evidence presented by the plaintiffs, particularly that of Mr. Van der Westhuizen, was vague and lacked documentary support. In contrast, the testimony of Mr. Marais, an independent witness, supported the first defendant's version that the oral amendment only concerned administrative changes and an increase in the management fee, not the assumption of liability for commission repayments. The court held that, at best, the probabilities were evenly balanced and...

Citation
[2007] ZAFSHC 98
Parties
Plaintiff: Hamilsplit (EDMS) Bpk; Plaintiff: Hamilton Solutions BPK; Defendant: Johannes Gerhardus Erasmus; Defendant: Pieter Johannes Pieterse
Court
Free State High Court, Bloemfontein
Jurisdiction
South Africa
Judgment Date
20 September 2007
Case Number
4483/2005
Procedural Posture
Civil Trial / Judgment After Trial
Outcome
The first defendant is absolved from the instance with costs.
Judges
C.H.G. van der Merwe, R
Legal Topics
Commission Agreements, Oral Variation of Contract, Risk Allocation, Burden of Proof
Commercial and Corporate Commission Agreements Oral Variation of Contract Risk Allocation Burden of Proof

Case Brief

Summary, issues, holding and outcome

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Parties

Hamilsplit (EDMS) Bpk

Plaintiff

Hamilton Solutions BPK

Plaintiff

Johannes Gerhardus Erasmus

Defendant

Pieter Johannes Pieterse

Defendant

Procedural Posture

Civil Trial / Judgment After Trial

Legal Issues

  1. 1 Whether the first defendant orally agreed to amend the management agreement to assume liability for repayment of commission ('vervallings').
  2. 2 Whether the oral amendment to the management agreement is enforceable despite the written non-variation clause.
  3. 3 Whether the plaintiffs proved on a balance of probabilities that the oral amendment was made and acted upon.

Ratio Decidendi

The court found that the plaintiffs failed to discharge the onus of proving, on a balance of probabilities, that the first defendant orally agreed to assume liability for the repayment of commission ('vervallings') as alleged. The evidence presented by the plaintiffs, particularly that of Mr. Van der Westhuizen, was vague and lacked documentary support. In contrast, the testimony of Mr. Marais, an independent witness, supported the first defendant's version that the oral amendment only concerned administrative changes and an increase in the management fee, not the assumption of liability for commission repayments. The court held that, at best, the probabilities were evenly balanced and...

Court Disposition

The first defendant is absolved from the instance with costs.

Orders

  • Judgment is granted in favour of the second plaintiff against the second defendant by agreement.
  • The first defendant is absolved from the instance with costs.