Van der Merwe v Hendrik Fielies t/a Komeng Building & Related Services (CA & R 73/2016) [2018] ZANCHC 11 (9 February 2018)

Van der Merwe v Hendrik Fielies t/a Komeng Building & Related Services (CA & R 73/2016) [2018] ZANCHC 11 (9 February 2018)

The court found that the appellant failed to discharge the onus of proving the existence of an oral agreement for payment of R75 000.00 per km plus VAT. The evidence showed that the respondent had quoted the department a lower rate and could not have agreed to the higher tariff. The appellant's reliance on the letter from the respondent's attorneys did not assist, as it confirmed that the parties ultimately agreed to a lesser amount. The Magistrate's findings were based on the probabilities and credibility of the witnesses, and there was no material misdirection. The appeal was dismissed as the appellant did not establish his entitlement to the claimed amount.

Citation
[2018] ZANCHC 11
Parties
Appellant: C Van der Merwe; Respondent: Hendrik Fielies t/a Komeng Building & Related Services
Court
Northern Cape High Court, Kimberley
Jurisdiction
South Africa
Judgment Date
9 February 2018
Case Number
CA & R 73/2016
Procedural Posture
Civil Appeal / Appeal Against Judgment and Part of Order of Regional Magistrate
Outcome
Appeal dismissed with costs.
Judges
Phatshoane, Snyders
Legal Topics
Oral Contract, Onus of Proof, Subcontracting, Contractual Dispute, Payment Claim, Mutually Destructive Versions
Commercial and Corporate Civil Procedure Oral Contract Onus of Proof Subcontracting Contractual Dispute Payment Claim Mutually Destructive Versions

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 3 Authorities cited 4 Party arguments 2 Amounts and remedies 5
Sign in to unlock

Parties

C Van der Merwe

Appellant

Hendrik Fielies t/a Komeng Building & Related Services

Respondent

Procedural Posture

Civil Appeal / Appeal Against Judgment and Part of Order of Regional Magistrate

Legal Issues

  1. 1 Whether the parties orally agreed to a contract fee of R75 000.00 per km plus VAT for resurfacing the roads.
  2. 2 Whether the appellant discharged the onus to prove the existence and terms of the alleged oral agreement.
  3. 3 Whether the Magistrate erred in her factual and credibility findings regarding the parties' versions.

Ratio Decidendi

The court found that the appellant failed to discharge the onus of proving the existence of an oral agreement for payment of R75 000.00 per km plus VAT. The evidence showed that the respondent had quoted the department a lower rate and could not have agreed to the higher tariff. The appellant's reliance on the letter from the respondent's attorneys did not assist, as it confirmed that the parties ultimately agreed to a lesser amount. The Magistrate's findings were based on the probabilities and credibility of the witnesses, and there was no material misdirection. The appeal was dismissed as the appellant did not establish his entitlement to the claimed amount.

Court Disposition

Appeal dismissed with costs.

Orders

  • The appeal is dismissed with costs.