Sechogo v Cindi and Another (CA & R 37/2002) [2002] ZANCHC 27 (20 September 2002)

Sechogo v Cindi and Another (CA & R 37/2002) [2002] ZANCHC 27 (20 September 2002)

The magistrate erred in granting absolution from the instance. The plaintiff was entitled to repayment of the purchase price due to breach of the warranty against eviction, which arises by operation of law and does not require cancellation of the contract. The voetstoots clause did not exclude the warranty against eviction, as it related only to the condition of the property and improvements, not to title. Even if the clause purported to exclude the warranty, it would not prevent the plaintiff from claiming repayment of the purchase price. The pleadings, despite technical shortcomings, sufficiently defined the issues, and the respondents were aware of the nature of the claim. The...

Citation
[2002] ZANCHC 27
Parties
Appellant: Solomon Sechogo; Respondent: Africa Cindi; Respondent: Doris Cindi
Court
Northern Cape High Court, Kimberley
Jurisdiction
South Africa
Judgment Date
20 September 2002
Case Number
CA & R 37/2002
Procedural Posture
Civil Appeal / Appeal Against Absolution From the Instance After Plaintiff Closed His Case in the Magistrate's Court.
Outcome
Appeal upheld with costs. The magistrate's order of absolution from the instance is set aside.
Judges
Majiedt, Buys
Legal Topics
Warranty Against Eviction, Absolution From the Instance, Voetstoots Clause, Actio Empti
Land and Property Civil Procedure Warranty Against Eviction Absolution From the Instance Voetstoots Clause Actio Empti

Case Brief

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Parties

Solomon Sechogo

Appellant

Africa Cindi

Respondent

Doris Cindi

Respondent

Procedural Posture

Civil Appeal / Appeal Against Absolution From the Instance After Plaintiff Closed His Case in the Magistrate's Court.

Legal Issues

  1. 1 Whether the magistrate erred in granting absolution from the instance after the plaintiff closed his case.
  2. 2 Whether the plaintiff was entitled to repayment of the purchase price due to breach of the warranty against eviction.
  3. 3 Whether the voetstoots clause excluded the warranty against eviction.

Ratio Decidendi

The magistrate erred in granting absolution from the instance. The plaintiff was entitled to repayment of the purchase price due to breach of the warranty against eviction, which arises by operation of law and does not require cancellation of the contract. The voetstoots clause did not exclude the warranty against eviction, as it related only to the condition of the property and improvements, not to title. Even if the clause purported to exclude the warranty, it would not prevent the plaintiff from claiming repayment of the purchase price. The pleadings, despite technical shortcomings, sufficiently defined the issues, and the respondents were aware of the nature of the claim. The...

Court Disposition

Appeal upheld with costs. The magistrate's order of absolution from the instance is set aside.

Orders

  • The appeal is upheld with costs.
  • The magistrate's order of absolution from the instance is set aside.