Qahoosein and Another v Bharshila Liquor Store CC (A431/2011) [2013] ZAGPPHC 508 (4 December 2013)

Qahoosein and Another v Bharshila Liquor Store CC (A431/2011) [2013] ZAGPPHC 508 (4 December 2013)

The court found that there was insufficient evidence to establish a binding agreement between the respondent and the second appellant for the latter to assume liability as a co-principal debtor. The second appellant's mere assent ('yes') and his conduct did not amount to an explicit, implied, or tacit agreement with detailed terms. The contradictions in the second appellant's testimony and his previous business dealings were not sufficient to prove the existence of a contract. The respondent's repeated attempts to contact the first appellant, rather than holding the second appellant liable, further indicated the absence of such an agreement. Accordingly, the appeal by the second appellant...

Citation
[2013] ZAGPPHC 508
Parties
Appellant: Mohamed Qahoosein; Appellant: Harif Hoosein Dawood; Respondent: Bharshila Liquor Store CC
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
4 December 2013
Case Number
A431/2011
Procedural Posture
Civil Appeal / Appeal From Judgment of the Court a Quo
Outcome
The appeal by the second appellant is upheld with costs; the claim against him is dismissed. The appeal by the first appellant is dismissed with costs.
Judges
NS Masango, NF Kgomo, HJ Fabricius
Legal Topics
Goods Sold and Delivered, Joint and Several Liability, Co Principal Debtor, Contract Formation, Express and Implied Terms
Commercial and Corporate Civil Procedure Goods Sold and Delivered Joint and Several Liability Co Principal Debtor Contract Formation Express and Implied Terms

Case Brief

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Parties

Mohamed Qahoosein

Appellant

Harif Hoosein Dawood

Appellant

Bharshila Liquor Store CC

Respondent

Procedural Posture

Civil Appeal / Appeal From Judgment of the Court a Quo

Legal Issues

  1. 1 Whether the second appellant assumed liability as a co-principal debtor for the indebtedness of the first appellant to the respondent.
  2. 2 Whether there was a valid agreement between the respondent and the second appellant regarding payment for goods sold and delivered.
  3. 3 Whether the court a quo erred in finding against the second appellant.

Ratio Decidendi

The court found that there was insufficient evidence to establish a binding agreement between the respondent and the second appellant for the latter to assume liability as a co-principal debtor. The second appellant's mere assent ('yes') and his conduct did not amount to an explicit, implied, or tacit agreement with detailed terms. The contradictions in the second appellant's testimony and his previous business dealings were not sufficient to prove the existence of a contract. The respondent's repeated attempts to contact the first appellant, rather than holding the second appellant liable, further indicated the absence of such an agreement. Accordingly, the appeal by the second appellant...

Court Disposition

The appeal by the second appellant is upheld with costs; the claim against him is dismissed. The appeal by the first appellant is dismissed with costs.

Orders

  • The appeal by the second appellant is upheld with costs.
  • The order of the court a quo is substituted: Plaintiff's claim against the second defendant is dismissed with costs.