Heinzelmann Dill v Els Enslin Boukontrakteurs CC (A 966/2006) [2009] ZAGPPHC 181 (31 March 2009)

Heinzelmann Dill v Els Enslin Boukontrakteurs CC (A 966/2006) [2009] ZAGPPHC 181 (31 March 2009)

The court found that the appellant failed to discharge the onus of proving that the original oral agreement was amended to exclude liability for damages. The evidence of Mr Saunders was evasive, uncertain, and unconvincing, while Mr MacDonald was resolute and credible in his denial of any amendment. The probabilities overwhelmingly favoured the respondent, as it was fundamentally improbable that the respondent would knowingly expose itself to significant risk without any indemnity. The trial court's assessment of the evidence was upheld, and the appeal was dismissed.

Citation
[2009] ZAGPPHC 181
Parties
Appellant: Heinzelmann Dill; Respondent: Els Enslin Boukontrakteurs CC
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
31 March 2009
Case Number
A 966/2006
Procedural Posture
Civil Appeal / Appeal From Trial Court Judgment
Outcome
Appeal dismissed with costs.
Judges
E Bertelsmann, W R C Prinsloo, A A Louw
Legal Topics
Oral Contract Amendment, Professional Liability Exclusion, Onus of Proof, Damages for Unprofessional Conduct
Commercial and Corporate Civil Procedure Oral Contract Amendment Professional Liability Exclusion Onus of Proof Damages for Unprofessional Conduct

Case Brief

Summary, issues, holding and outcome

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Parties

Heinzelmann Dill

Appellant

Els Enslin Boukontrakteurs CC

Respondent

Procedural Posture

Civil Appeal / Appeal From Trial Court Judgment

Legal Issues

  1. 1 Whether the original oral agreement between the parties was amended to exclude the appellant's liability for damages arising from unprofessional conduct.
  2. 2 Whether the appellant discharged the onus of proving the alleged amendment to the contract.
  3. 3 Whether tacit acceptance of a liability exclusion clause can be inferred from silence.

Ratio Decidendi

The court found that the appellant failed to discharge the onus of proving that the original oral agreement was amended to exclude liability for damages. The evidence of Mr Saunders was evasive, uncertain, and unconvincing, while Mr MacDonald was resolute and credible in his denial of any amendment. The probabilities overwhelmingly favoured the respondent, as it was fundamentally improbable that the respondent would knowingly expose itself to significant risk without any indemnity. The trial court's assessment of the evidence was upheld, and the appeal was dismissed.

Court Disposition

Appeal dismissed with costs.

Orders

  • The appeal is dismissed with costs, including the costs of senior counsel.