Magano and Another v Dipheko (1532/2018) [2019] ZANCHC 37 (30 August 2019)

Magano and Another v Dipheko (1532/2018) [2019] ZANCHC 37 (30 August 2019)

The court found that material disputes of fact exist regarding the circumstances of the signing of the Deed of Sale and the respondent's claim of innocent misrepresentation. These disputes cannot be resolved on affidavit alone. The evidence of third parties, such as the conveyancer and the person who presented the documents, is necessary to adjudicate the matter fairly. The court determined that the applicants could not have foreseen the respondent's reliance on innocent misrepresentation. Accordingly, the matter is referred for oral evidence under Rule 6(5)(g), and costs are reserved for the court hearing the oral evidence.

Citation
[2019] ZANCHC 37
Parties
Applicant: Setlhodi Moses Magano; Applicant: Gloria Masego Magano; Respondent: Themba Hope Dipheko
Court
Northern Cape High Court, Kimberley
Jurisdiction
South Africa
Judgment Date
30 August 2019
Case Number
1532/2018
Procedural Posture
Urgent Application / Referral for Oral Evidence Under Rule 6(5)(g)
Outcome
Matter referred for oral evidence under Rule 6(5)(g); costs reserved.
Judges
Sieberhagen
Legal Topics
Specific Performance, Sale of Immovable Property, Innocent Misrepresentation, Dispute of Fact, Referral for Oral Evidence
Civil Procedure Land and Property Specific Performance Sale of Immovable Property Innocent Misrepresentation Dispute of Fact Referral for Oral Evidence

Case Brief

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Parties

Setlhodi Moses Magano

Applicant

Gloria Masego Magano

Applicant

Themba Hope Dipheko

Respondent

Procedural Posture

Urgent Application / Referral for Oral Evidence Under Rule 6(5)(g)

Legal Issues

  1. 1 Whether the applicants are entitled to specific performance and transfer of the immovable property under the Deed of Sale.
  2. 2 Whether the Deed of Sale is void due to alleged innocent misrepresentation by the respondent.
  3. 3 Whether the matter can be decided on affidavit or requires oral evidence due to material disputes of fact.

Ratio Decidendi

The court found that material disputes of fact exist regarding the circumstances of the signing of the Deed of Sale and the respondent's claim of innocent misrepresentation. These disputes cannot be resolved on affidavit alone. The evidence of third parties, such as the conveyancer and the person who presented the documents, is necessary to adjudicate the matter fairly. The court determined that the applicants could not have foreseen the respondent's reliance on innocent misrepresentation. Accordingly, the matter is referred for oral evidence under Rule 6(5)(g), and costs are reserved for the court hearing the oral evidence.

Court Disposition

Matter referred for oral evidence under Rule 6(5)(g); costs reserved.

Orders

  • The matter is referred for oral evidence in terms of Rule 6(5)(g).
  • Either party may call any witness to give evidence, provided a summary of such witness's evidence is furnished to the other party 10 days prior to the hearing if no affidavit has been deposed.