Sand Van Heerden (Edms) Bpk v PROBOU (A29/2010) [2010] ZAFSHC 126 (23 September 2010)

Sand Van Heerden (Edms) Bpk v PROBOU (A29/2010) [2010] ZAFSHC 126 (23 September 2010)

The court found that the respondent failed to discharge the onus of proving, on a balance of probabilities, that it received 20% less sand than paid for over the eight-year period. The evidence relied upon by the respondent was insufficient, as only two loads were measured and the actual capacities of the appellant's trucks were not consistently established. The respondent also failed to provide satisfactory evidence of the prices paid for the sand over the relevant period. The uncertainty regarding which trucks were used for which deliveries and the fluctuating prices undermined the respondent's claim. Consequently, the magistrate should have granted absolution from the instance, as the...

Citation
[2010] ZAFSHC 126
Parties
Appellant: Sand Van Heerden (Edms) Bpk; Respondent: PROBOU
Court
Free State High Court, Bloemfontein
Jurisdiction
South Africa
Judgment Date
23 September 2010
Case Number
A29/2010
Procedural Posture
Civil Appeal / Appeal From Magistrate's Court Judgment
Outcome
Appeal upheld; absolution from the instance granted.
Judges
M. H. Rampai, A. Kruger
Legal Topics
Absolution From the Instance, Burden of Proof, Prescription Act, Quantification of Damages
Civil Procedure Commercial and Corporate Absolution From the Instance Burden of Proof Prescription Act Quantification of Damages

Case Brief

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Parties

Sand Van Heerden (Edms) Bpk

Appellant

PROBOU

Respondent

Procedural Posture

Civil Appeal / Appeal From Magistrate's Court Judgment

Legal Issues

  1. 1 Whether the respondent proved on a balance of probabilities that it received 20% less sand than paid for over an eight-year period.
  2. 2 Whether the respondent proved the price paid for the sand with reasonable certainty.
  3. 3 Whether prescription extinguished part of the respondent's claim.

Ratio Decidendi

The court found that the respondent failed to discharge the onus of proving, on a balance of probabilities, that it received 20% less sand than paid for over the eight-year period. The evidence relied upon by the respondent was insufficient, as only two loads were measured and the actual capacities of the appellant's trucks were not consistently established. The respondent also failed to provide satisfactory evidence of the prices paid for the sand over the relevant period. The uncertainty regarding which trucks were used for which deliveries and the fluctuating prices undermined the respondent's claim. Consequently, the magistrate should have granted absolution from the instance, as the...

Court Disposition

Appeal upheld; absolution from the instance granted.

Orders

  • The appeal succeeds with costs.
  • The magistrate's order is replaced with: 'Absolution from the instance with costs.'