Pharo v Futter and Another (1206/2016) [2017] ZAKZDHC 11; 2018 (2) SACR 192 (KZD) (20 March 2017)

Pharo v Futter and Another (1206/2016) [2017] ZAKZDHC 11; 2018 (2) SACR 192 (KZD) (20 March 2017)

The court held that the plaintiff's claim for loss of prospective profits is unsustainable in law. Under the law of delict, damages are intended to restore the plaintiff to the position he would have occupied had the delict not occurred. If the misrepresentations had not been made, the plaintiff would not have entered into the agreement and would not have earned any profits. The claim for loss of profits is therefore not recoverable. The exception is properly taken against the distinct damages claim, as it is separate from the restitution claim. The court found that leading evidence on the damages claim would be a waste of time and money, as the claim is bound to fail. The exception is...

Citation
[2017] ZAKZDHC 11
Parties
Plaintiff: Shawn Pharo; Defendant: Alan Craig Futter; Defendant: Piet Grove
Court
Kwazulu-Natal High Court, Durban
Jurisdiction
South Africa
Judgment Date
20 March 2017
Case Number
1206/2016
Procedural Posture
Exception Application / Exception to Particulars of Claim
Outcome
Exception upheld; damages claim for loss of prospective profits struck out; plaintiff ordered to pay costs.
Judges
Ploos van Amstel
Legal Topics
Exception Procedure, Fraudulent Misrepresentation, Negligent Misrepresentation, Measure of Damages, Restitution
Civil Procedure Delict Exception Procedure Fraudulent Misrepresentation Negligent Misrepresentation Measure of Damages Restitution

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 4 Authorities cited 7 Party arguments 2 Amounts and remedies 2
Sign in to unlock

Parties

Shawn Pharo

Plaintiff

Alan Craig Futter

Defendant

Piet Grove

Defendant

Procedural Posture

Exception Application / Exception to Particulars of Claim

Legal Issues

  1. 1 Whether the plaintiff's claim for loss of prospective profits is sustainable in law following cancellation of the agreement due to misrepresentation.
  2. 2 Whether an exception can be upheld against only part of the plaintiff's claim where distinct causes of action exist.
  3. 3 Whether the damages claimed by the plaintiff are recoverable under the law of delict.

Ratio Decidendi

The court held that the plaintiff's claim for loss of prospective profits is unsustainable in law. Under the law of delict, damages are intended to restore the plaintiff to the position he would have occupied had the delict not occurred. If the misrepresentations had not been made, the plaintiff would not have entered into the agreement and would not have earned any profits. The claim for loss of profits is therefore not recoverable. The exception is properly taken against the distinct damages claim, as it is separate from the restitution claim. The court found that leading evidence on the damages claim would be a waste of time and money, as the claim is bound to fail. The exception is...

Court Disposition

Exception upheld; damages claim for loss of prospective profits struck out; plaintiff ordered to pay costs.

Orders

  • The exception is upheld.
  • Paragraphs 19 and 31 and prayers 21.3 and 33.3 of the particulars of claim are struck out.