Honey & Partners Inc and Others v Quince Property Finance (Pty) Ltd (345/11) [2011] ZASCA 213 (29 November 2011)

Honey & Partners Inc and Others v Quince Property Finance (Pty) Ltd (345/11) [2011] ZASCA 213 (29 November 2011)

The Supreme Court of Appeal held that the adverse credibility findings made by the trial judge against Honey Inc's witness, Mr Rossouw, were not challenged on appeal and were supported by the record. These findings rendered the defence of rectification unsustainable, as the evidence necessary to establish a common continuing intention was found to be wholly lacking in credibility. The court further noted that the master agreement did not apply to the transaction in question, which involved an advance on profits, and that the finance agreement was a separate, valid contract. Accordingly, Honey Inc and its directors were held jointly and severally liable for repayment of the bridging...

Citation
[2011] ZASCA 213
Parties
Appellant: Honey & Partners Inc; Appellant: E F Saffy; Appellant: R J Britz; Appellant: J J van Zyl; Appellant: N J Naude; Appellant: J M Burger; Appellant: N J G Dreyer; Appellant: C J Potgieter; Appellant: H L Buchner; Appellant: J du Toit; Appellant: G de Beer; Appellant: N H Barnaschone; Appellant: D J J de Villiers; Appellant: S J le Roux; Appellant: J J Feuth; Appellant: L B Saffy; Appellant: H E van der Walt; Appellant: A Prinsloo; Appellant: G S Goodes; Respondent: Quince Property Finance (Pty) Ltd
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
29 November 2011
Case Number
345/11
Procedural Posture
Civil Appeal / Appeal From the Free State High Court, Bloemfontein
Outcome
Appeal dismissed with costs.
Judges
Harms, Ponnan, Snyders, Leach, Seriti
Legal Topics
Rectification of Contract, Attorneys Liability, Bridging Finance, Credibility of Witnesses
Commercial and Corporate Civil Procedure Rectification of Contract Attorneys Liability Bridging Finance Credibility of Witnesses

Case Brief

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Parties

Honey & Partners Inc

Appellant

E F Saffy

Appellant

R J Britz

Appellant

J J van Zyl

Appellant

N J Naude

Appellant

J M Burger

Appellant

N J G Dreyer

Appellant

C J Potgieter

Appellant

H L Buchner

Appellant

J du Toit

Appellant

G de Beer

Appellant

N H Barnaschone

Appellant

D J J de Villiers

Appellant

S J le Roux

Appellant

J J Feuth

Appellant

L B Saffy

Appellant

H E van der Walt

Appellant

A Prinsloo

Appellant

G S Goodes

Appellant

Quince Property Finance (Pty) Ltd

Respondent

Procedural Posture

Civil Appeal / Appeal From the Free State High Court, Bloemfontein

Legal Issues

  1. 1 Whether the finance agreement should be rectified to reflect the parties' true intention regarding Honey Inc's liability.
  2. 2 Whether Honey Inc and its directors are liable to the respondent for repayment of the bridging finance advanced to Joroy 0002 CC.
  3. 3 Whether adverse credibility findings against Honey Inc's witness preclude the defence of rectification.

Ratio Decidendi

The Supreme Court of Appeal held that the adverse credibility findings made by the trial judge against Honey Inc's witness, Mr Rossouw, were not challenged on appeal and were supported by the record. These findings rendered the defence of rectification unsustainable, as the evidence necessary to establish a common continuing intention was found to be wholly lacking in credibility. The court further noted that the master agreement did not apply to the transaction in question, which involved an advance on profits, and that the finance agreement was a separate, valid contract. Accordingly, Honey Inc and its directors were held jointly and severally liable for repayment of the bridging...

Court Disposition

Appeal dismissed with costs.

Orders

  • The appeal is dismissed with costs.