mCubed International (Pty) Ltd and and Another v Singer NO and Others (118/08) [2009] ZASCA 6; 2009 (4) SA 471 (SCA) ; [2009] 2 All SA 536 (SCA) (11 March 2009)

mCubed International (Pty) Ltd and and Another v Singer NO and Others (118/08) [2009] ZASCA 6; 2009 (4) SA 471 (SCA) ; [2009] 2 All SA 536 (SCA) (11 March 2009)

The Supreme Court of Appeal held that, although the appellants' conduct gave rise to an implied misrepresentation regarding the legality of the investment structure, the respondents failed to establish factual causation. The evidence showed that the Trust would have invested offshore through another institution even if the misrepresentation had not occurred, and thus the loss would have been incurred regardless. Furthermore, the losses suffered were attributable to the strengthening of the Rand against the US Dollar, not to any misrepresentation or conduct by the appellants. Applying the flexible test for legal causation, the court found the losses too remote to attract liability. The...

Citation
[2009] ZASCA 6
Parties
Appellant: mCubed International (Pty) Ltd; Appellant: mCubed Life Limited; Respondent: Leon John Singer NO; Respondent: Andries Olivier NO; Respondent: Frank William Muggleston NO
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
11 March 2009
Case Number
118/08
Procedural Posture
Civil Appeal / Appeal From High Court, Cape Town
Outcome
Appeal upheld; cross-appeal dismissed; respondents' claims dismissed with costs.
Judges
Streicher, Brand, Mhlantla, Leach, Bosielo
Legal Topics
Misrepresentation, Pure Economic Loss, Factual and Legal Causation, Remoteness of Damage, Exchange Control Regulations
Delict Civil Procedure Misrepresentation Pure Economic Loss Factual and Legal Causation Remoteness of Damage Exchange Control Regulations

Case Brief

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Parties

mCubed International (Pty) Ltd

Appellant

mCubed Life Limited

Appellant

Leon John Singer NO

Respondent

Andries Olivier NO

Respondent

Frank William Muggleston NO

Respondent

Procedural Posture

Civil Appeal / Appeal From High Court, Cape Town

Legal Issues

  1. 1 Whether the appellants made actionable misrepresentations to the respondents regarding the legality and implementation of an offshore investment structure.
  2. 2 Whether the misrepresentations caused the respondents' capital and interest losses, factually and legally.
  3. 3 Whether the losses suffered by the respondents were too remote to attract delictual liability.

Ratio Decidendi

The Supreme Court of Appeal held that, although the appellants' conduct gave rise to an implied misrepresentation regarding the legality of the investment structure, the respondents failed to establish factual causation. The evidence showed that the Trust would have invested offshore through another institution even if the misrepresentation had not occurred, and thus the loss would have been incurred regardless. Furthermore, the losses suffered were attributable to the strengthening of the Rand against the US Dollar, not to any misrepresentation or conduct by the appellants. Applying the flexible test for legal causation, the court found the losses too remote to attract liability. The...

Court Disposition

Appeal upheld; cross-appeal dismissed; respondents' claims dismissed with costs.

Orders

  • The appeal is upheld with costs.
  • The order of the court a quo is set aside and replaced by: 'The plaintiffs' claims are dismissed with costs.'