Titan Asset Management (Pty) Ltd and Others v Lanzerac Estate Investments (Pty) Ltd and Another (2102 / 2020) [2023] ZAWCHC 136; [2023] 3 All SA 589 (WCC) (9 June 2023)

Parties

Procedural Posture

Civil Procedure / Exception to Particulars of Claim

Legal Issues

1. 1 Whether the plaintiffs are precluded from rescinding the contracts by virtue of exclusion clauses.
2. 2 Whether the plaintiffs' tender of restitution is legally adequate given the alleged worthlessness of the shares tendered.
3. 3 Whether the absence of Aussenkjer Boerdery (Pty) Ltd as a party constitutes fatal non-joinder.

Ratio Decidendi

The court held that exclusion clauses in the contracts cannot preclude rescission where the contracts were induced by fraud. Upon rescission for fraud, the contracts are void ab initio and the innocent party is not bound by exclusion clauses. The plaintiffs' tender of Steinhoff NV shares, equivalent in number to those received, is not obviously inadequate for restitution, as shares are fungible and the value relevant for restitution is the fraud-tainted value, not the contractual value. The adequacy of the tender is a matter for trial. The intra-group transfer of shares does not prevent effective restitution. The absence of Aussenkjer Boerdery as a party does not render the particulars of...

Court Disposition

All exceptions dismissed with costs, including the fees of two counsel.

Orders

• The excipient abandoned the first exception.
• The second, third, and fourth exceptions are dismissed with costs, including the fees of two counsel.