Ndara and Another v Weir Investments (Pty) Ltd and Others (3180/2013) [2019] ZAECGHC 95 (1 October 2019)

Ndara and Another v Weir Investments (Pty) Ltd and Others (3180/2013) [2019] ZAECGHC 95 (1 October 2019)

The court found that the incomplete record was nevertheless adequate for proper consideration of the appeal, as the relevant evidence and documents were available and the issue on appeal was narrow. The plaintiffs had knowledge of the material facts giving rise to their claim by 2005, when they learned they had paid the price of a new vehicle for a demonstration model and knew the identities of the defendants. The subsequent discovery of a document in 2013 merely provided proof of their earlier knowledge and did not constitute new material facts. The claim for a declaration of nullity was, in substance, a claim to resile from the contract and claim consequential relief, and thus...

Citation
[2019] ZAECGHC 95
Parties
Applicant: Mzukisi Lubabalo Ndara; Applicant: Unathi Ndara; Respondent: Weir Investments (Pty) Ltd; Respondent: First Rand Bank Ltd t/a Wesbank; Respondent: Jean van Aart
Court
Eastern Cape High Court, Grahamstown
Jurisdiction
South Africa
Judgment Date
1 October 2019
Case Number
3180/2013
Procedural Posture
Leave to Appeal / Application for Leave to Appeal Following Dismissal of Claim on Prescription
Outcome
Application for leave to appeal dismissed with costs.
Judges
J M Roberson
Legal Topics
Prescription Act, Fraudulent Misrepresentation, Contract Rescission, Declaration of Rights, Damages, Restitution
Civil Procedure Commercial and Corporate Delict Prescription Act Fraudulent Misrepresentation Contract Rescission Declaration of Rights Damages +1 more

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Parties

Mzukisi Lubabalo Ndara

Applicant

Unathi Ndara

Applicant

Weir Investments (Pty) Ltd

Respondent

First Rand Bank Ltd t/a Wesbank

Respondent

Jean van Aart

Respondent

Procedural Posture

Leave to Appeal / Application for Leave to Appeal Following Dismissal of Claim on Prescription

Legal Issues

  1. 1 Whether the incomplete trial record is adequate for proper consideration of the appeal.
  2. 2 When did prescription begin to run in respect of the plaintiffs' claims based on fraudulent misrepresentation and contract?
  3. 3 Whether the claim for a declaration that the agreement is null and void constitutes a 'debt' under the Prescription Act.

Ratio Decidendi

The court found that the incomplete record was nevertheless adequate for proper consideration of the appeal, as the relevant evidence and documents were available and the issue on appeal was narrow. The plaintiffs had knowledge of the material facts giving rise to their claim by 2005, when they learned they had paid the price of a new vehicle for a demonstration model and knew the identities of the defendants. The subsequent discovery of a document in 2013 merely provided proof of their earlier knowledge and did not constitute new material facts. The claim for a declaration of nullity was, in substance, a claim to resile from the contract and claim consequential relief, and thus...

Court Disposition

Application for leave to appeal dismissed with costs.

Orders

  • The plaintiffs' application for leave to appeal is dismissed with costs.