Le Roux v Visser (5694/2019) [2020] ZAFSHC 127 (30 July 2020)

Le Roux v Visser (5694/2019) [2020] ZAFSHC 127 (30 July 2020)

The applicant failed to prove the existence and terms of the alleged verbal agreement entitling her to delivery of the dog Vasti or to damages. The respondent’s version, supported by documentary evidence, was not shown to be false, untenable, or far-fetched. There was a fundamental dispute of fact that could not be resolved on the papers, and the applicant did not seek referral to oral evidence at the appropriate stage. Furthermore, the claim for unliquidated damages was not properly substantiated. The matter was not appropriate for the High Court given the value involved and should have been brought before the Magistrates’ Court. The application was dismissed with costs.

Citation
[2020] ZAFSHC 127
Parties
Applicant: Johanna Christina Le Roux; Respondent: Johanna Francina Visser
Court
Free State High Court, Bloemfontein
Jurisdiction
South Africa
Judgment Date
30 July 2020
Case Number
5694/2019
Procedural Posture
Urgent Application / Final Judgment After Opposed Motion and Interlocutory Application
Outcome
Application dismissed with costs.
Judges
Daffue
Legal Topics
Specific Performance, Breach of Contract, Motion Proceedings, Jurisdiction of Magistrates Court, Unliquidated Damages
Civil Procedure Land and Property Specific Performance Breach of Contract Motion Proceedings Jurisdiction of Magistrates Court Unliquidated Damages

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Parties

Johanna Christina Le Roux

Applicant

Johanna Francina Visser

Respondent

Procedural Posture

Urgent Application / Final Judgment After Opposed Motion and Interlocutory Application

Legal Issues

  1. 1 Whether the applicant proved the existence and terms of a verbal agreement entitling her to delivery of the dog Vasti.
  2. 2 Whether the respondent breached the alleged agreement by refusing to deliver Vasti.
  3. 3 Whether the applicant is entitled to specific performance or damages as claimed.

Ratio Decidendi

The applicant failed to prove the existence and terms of the alleged verbal agreement entitling her to delivery of the dog Vasti or to damages. The respondent’s version, supported by documentary evidence, was not shown to be false, untenable, or far-fetched. There was a fundamental dispute of fact that could not be resolved on the papers, and the applicant did not seek referral to oral evidence at the appropriate stage. Furthermore, the claim for unliquidated damages was not properly substantiated. The matter was not appropriate for the High Court given the value involved and should have been brought before the Magistrates’ Court. The application was dismissed with costs.

Court Disposition

Application dismissed with costs.

Orders

  • Leave is granted to applicant to file her supplementary affidavit dated 4 June 2020.
  • Respondent’s supplementary answering affidavit dated 23 July 2020 and applicant’s replying affidavit thereto are accepted as part of the evidential material before the court.