Magudu Game Company (Pty) Ltd v Bouwer (07/7248) [2007] ZAGPHC 390 (19 September 2007)

Magudu Game Company (Pty) Ltd v Bouwer (07/7248) [2007] ZAGPHC 390 (19 September 2007)

The application was dismissed because the applicant failed to tender payment of the purchase price or provide a guarantee in its founding affidavit, which is a necessary allegation for specific performance of the deed of sale. The applicant relied on the deed of sale but did not seek rectification or make out a case for it. Furthermore, there were disputes of fact regarding the authority of Mr. Greeff and alleged misrepresentations that could not be resolved on the papers. The applicant should have foreseen these disputes, especially given the history of similar litigation between the parties. The court exercised its discretion to refuse a postponement and upheld the respondent's point in...

Citation
[2007] ZAGPHC 390
Parties
Applicant: Magudu Game Company (Pty) Limited; Respondent: Roland Noel Bouwer
Court
High Courts - Gauteng
Jurisdiction
South Africa
Judgment Date
19 September 2007
Case Number
07/7248
Procedural Posture
Specific Performance Application / Hearing and Judgment
Outcome
Application dismissed with costs, including costs of senior counsel.
Judges
PA Meyer
Legal Topics
Specific Performance, Sale of Immovable Property, Tender of Performance, Dispute of Fact, Rectification of Contract
Civil Procedure Land and Property Specific Performance Sale of Immovable Property Tender of Performance Dispute of Fact Rectification of Contract

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Parties

Magudu Game Company (Pty) Limited

Applicant

Roland Noel Bouwer

Respondent

Procedural Posture

Specific Performance Application / Hearing and Judgment

Legal Issues

  1. 1 Whether the applicant's founding affidavit contains sufficient allegations to support a claim for specific performance of the deed of sale.
  2. 2 Whether the applicant was required to tender payment of the purchase price or provide a guarantee in its founding papers.
  3. 3 Whether the disputes of fact arising in the matter are capable of resolution on the papers or require referral to trial.

Ratio Decidendi

The application was dismissed because the applicant failed to tender payment of the purchase price or provide a guarantee in its founding affidavit, which is a necessary allegation for specific performance of the deed of sale. The applicant relied on the deed of sale but did not seek rectification or make out a case for it. Furthermore, there were disputes of fact regarding the authority of Mr. Greeff and alleged misrepresentations that could not be resolved on the papers. The applicant should have foreseen these disputes, especially given the history of similar litigation between the parties. The court exercised its discretion to refuse a postponement and upheld the respondent's point in...

Court Disposition

Application dismissed with costs, including costs of senior counsel.

Orders

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