Refilon Investments (Pty) Ltd v Fedsure Participation Mortgage Managers (Pty) Ltd (A1172/05) [2007] ZAGPHC 62 (1 June 2007)

Refilon Investments (Pty) Ltd v Fedsure Participation Mortgage Managers (Pty) Ltd (A1172/05) [2007] ZAGPHC 62 (1 June 2007)

The court held that clause 3 of the settlement agreement was an express acceleration clause, entitling the respondents to judgment for the full outstanding amount upon any breach of the agreement. The language and context of the contract indicated that the parties intended the respondents to have the right to claim the full compromised sum if the appellants failed to honour their obligations. The appellants' breaches were material and ongoing, justifying acceleration. There was no evidentiary basis for rectification, as no common mistake or misrepresentation was established. Joint and several liability was found to be the intention of the parties, given the background of the suretyship...

Citation
[2007] ZAGPHC 62
Parties
Appellant: Refilon Investments (Pty) Ltd; Appellant: Jan Hendrik Duvenage; Respondent: Fedsure Participation Mortgage Managers (Pty) Ltd; Respondent: Fedbond Nominees (Pty) Ltd
Court
High Courts - Gauteng
Jurisdiction
South Africa
Judgment Date
1 June 2007
Case Number
A1172/05
Procedural Posture
Civil Appeal / Appeal From Decision of Mavundla J Delivered 18 August 2005
Outcome
Appeal dismissed; costs awarded against the appellants jointly and severally.
Judges
JR Murphy, C Pretorius, L Molopa
Legal Topics
Settlement Agreement, Acceleration Clause, Joint and Several Liability, Rectification, Interest on Judgment Debt
Commercial and Corporate Civil Procedure Settlement Agreement Acceleration Clause Joint and Several Liability Rectification Interest on Judgment Debt

Case Brief

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Parties

Refilon Investments (Pty) Ltd

Appellant

Jan Hendrik Duvenage

Appellant

Fedsure Participation Mortgage Managers (Pty) Ltd

Respondent

Fedbond Nominees (Pty) Ltd

Respondent

Procedural Posture

Civil Appeal / Appeal From Decision of Mavundla J Delivered 18 August 2005

Legal Issues

  1. 1 Whether clause 3 of the settlement agreement entitled the respondents to judgment for the full outstanding amount upon breach.
  2. 2 Whether the appellants were liable jointly and severally under the deed of settlement.
  3. 3 Whether the appellants established grounds for rectification of the settlement agreement.

Ratio Decidendi

The court held that clause 3 of the settlement agreement was an express acceleration clause, entitling the respondents to judgment for the full outstanding amount upon any breach of the agreement. The language and context of the contract indicated that the parties intended the respondents to have the right to claim the full compromised sum if the appellants failed to honour their obligations. The appellants' breaches were material and ongoing, justifying acceleration. There was no evidentiary basis for rectification, as no common mistake or misrepresentation was established. Joint and several liability was found to be the intention of the parties, given the background of the suretyship...

Court Disposition

Appeal dismissed; costs awarded against the appellants jointly and severally.

Orders

  • The appeal is dismissed.
  • The appellants are ordered to pay the costs of the appeal jointly and severally.