Valodia v Cooper Bezuidenhout Inc and Others (2387/2013) [2013] ZAFSHC 171 (26 September 2013)

Valodia v Cooper Bezuidenhout Inc and Others (2387/2013) [2013] ZAFSHC 171 (26 September 2013)

The court found no conduct by the applicant that would justify a departure from the Shifren-principle, and held that the parties were bound by the terms of their written agreement, including the non-variation clause. The respondents' argument that the applicant and the Haripersad Family Trust were acting in concert was unsupported by facts in the affidavits and amounted to speculation. The court did not impose an onus on the respondents but merely found that there was insufficient factual basis for their allegations. After considering the facts, judgment, and arguments, the court concluded that there were no reasonable prospects of success on appeal.

Citation
[2013] ZAFSHC 171
Parties
Applicant: Hassan Mahomed Valodia; Respondent: Cooper Bezuidenhout Incorporated; Respondent: Donovan Theodore Majiedt N.O.; Respondent: Brian Itumeleng Nakedi N.O.; Respondent: Norman Klein N.O.; Respondent: Jaichand Haripersad N.O.; Respondent: Vidhiawathie Haripersad N.O.; Respondent: The Master of the Free State High Court
Court
Free State High Court, Bloemfontein
Jurisdiction
South Africa
Judgment Date
26 September 2013
Case Number
2387/2013
Procedural Posture
Leave to Appeal / Application for Leave to Appeal Following Judgment Dated 29 August 2013.
Outcome
Application for leave to appeal dismissed; costs awarded against the second, third, and fourth respondents.
Judges
P.J.T. De Wet
Legal Topics
Leave to Appeal, Non Variation Clause, Shifren Principle, Public Policy Exception, Onus of Proof
Civil Procedure Commercial and Corporate Leave to Appeal Non Variation Clause Shifren Principle Public Policy Exception Onus of Proof

Case Brief

Summary, issues, holding and outcome

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Parties

Hassan Mahomed Valodia

Applicant

Cooper Bezuidenhout Incorporated

Respondent

Donovan Theodore Majiedt N.O.

Respondent

Brian Itumeleng Nakedi N.O.

Respondent

Norman Klein N.O.

Respondent

Jaichand Haripersad N.O.

Respondent

Vidhiawathie Haripersad N.O.

Respondent

The Master of the Free State High Court

Respondent

Procedural Posture

Leave to Appeal / Application for Leave to Appeal Following Judgment Dated 29 August 2013.

Legal Issues

  1. 1 Whether the non-variation clause in the written agreement (clause 22) precluded oral amendment or departure from the contract terms.
  2. 2 Whether public policy justified a departure from the Shifren-principle in the circumstances of the case.
  3. 3 Whether the court imposed an onus on the respondents to prove that the applicant and the Haripersad Family Trust were acting in concert.

Ratio Decidendi

The court found no conduct by the applicant that would justify a departure from the Shifren-principle, and held that the parties were bound by the terms of their written agreement, including the non-variation clause. The respondents' argument that the applicant and the Haripersad Family Trust were acting in concert was unsupported by facts in the affidavits and amounted to speculation. The court did not impose an onus on the respondents but merely found that there was insufficient factual basis for their allegations. After considering the facts, judgment, and arguments, the court concluded that there were no reasonable prospects of success on appeal.

Court Disposition

Application for leave to appeal dismissed; costs awarded against the second, third, and fourth respondents.

Orders

  • The application for leave to appeal is dismissed.
  • The second, third and fourth respondents are ordered to pay the costs of the application.