Naude v Joubert (CA280/2006) [2007] ZAECHC 5; [2007] 4 All SA 933 (E) (5 February 2007)

Naude v Joubert (CA280/2006) [2007] ZAECHC 5; [2007] 4 All SA 933 (E) (5 February 2007)

The court found that the written lease agreement between the appellant and respondent was cancelled by agreement when the respondent sold the restaurant business to Esterhuizen, with the appellant's knowledge. The appellant then entered into an oral lease agreement with Esterhuizen for the same premises, and the respondent signed a deed of suretyship for Esterhuizen's debts. The magistrate's credibility findings against the appellant were justified, as his evidence was evasive and contradicted by documentary evidence and prior litigation. The respondent and Esterhuizen's version was preferred as more probable and consistent with the facts. The deed of suretyship confirmed the termination...

Citation
[2007] ZAECHC 5
Parties
Appellant: Eric Rowland Naude; Respondent: Daniel Joubert
Court
High Courts - Eastern Cape
Jurisdiction
South Africa
Judgment Date
5 February 2007
Case Number
CA280/2006
Procedural Posture
Civil Appeal / Appeal From Magistrate's Court Judgment
Outcome
Appeal dismissed with costs.
Judges
PLASKET, EBRAHIM
Legal Topics
Lease Cancellation, Oral Lease Agreement, Suretyship, Termination by Agreement
Land and Property Civil Procedure Lease Cancellation Oral Lease Agreement Suretyship Termination by Agreement

Case Brief

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Parties

Eric Rowland Naude

Appellant

Daniel Joubert

Respondent

Procedural Posture

Civil Appeal / Appeal From Magistrate's Court Judgment

Legal Issues

  1. 1 Whether the written lease agreement between the appellant and respondent was cancelled by agreement.
  2. 2 Whether the respondent remained liable for rental payments after the alleged cancellation.
  3. 3 Whether the appellant was entitled to claim specific performance under the original lease agreement.

Ratio Decidendi

The court found that the written lease agreement between the appellant and respondent was cancelled by agreement when the respondent sold the restaurant business to Esterhuizen, with the appellant's knowledge. The appellant then entered into an oral lease agreement with Esterhuizen for the same premises, and the respondent signed a deed of suretyship for Esterhuizen's debts. The magistrate's credibility findings against the appellant were justified, as his evidence was evasive and contradicted by documentary evidence and prior litigation. The respondent and Esterhuizen's version was preferred as more probable and consistent with the facts. The deed of suretyship confirmed the termination...

Court Disposition

Appeal dismissed with costs.

Orders

  • The appeal is dismissed with costs.