Van Rooyen NO v Rorich Wolmarans & Luderitz (146/08) [2008] ZASCA 135; [2009] 2 All SA 201 (SCA) (26 November 2008)

Van Rooyen NO v Rorich Wolmarans & Luderitz (146/08) [2008] ZASCA 135; [2009] 2 All SA 201 (SCA) (26 November 2008)

The Supreme Court of Appeal held that the appellant failed to discharge the onus of proving that payment of the proceeds to De Mist Trust Corporate Services was not a term of the mandate given to the respondent. The evidence, particularly the testimony of Mr Endres, established that it was a standing practice and instruction within the respondent's firm to pay proceeds to De Mist when Mr Lüderitz was a curator. The court found no basis to reject Endres's evidence, which was corroborated by documentary records and the conduct of the parties. The court concluded that the respondent acted in accordance with the mandate and was not negligent. Accordingly, the appeal was dismissed with costs.

Citation
[2008] ZASCA 135
Parties
Appellant: Pieter Bernardus van Rooyen NO; Respondent: Rorich Wolmarans & Lüderitz Inc
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
26 November 2008
Case Number
146/08
Procedural Posture
Civil Appeal / Appeal From Pretoria High Court
Outcome
Appeal dismissed with costs.
Judges
Scott, Brand, Combrinck, Boruchowitz, Griesel
Legal Topics
Mandate Liability, Professional Negligence, Insolvency Practices, Burden of Proof
Civil Procedure Commercial and Corporate Mandate Liability Professional Negligence Insolvency Practices Burden of Proof

Case Brief

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Parties

Pieter Bernardus van Rooyen NO

Appellant

Rorich Wolmarans & Lüderitz Inc

Respondent

Procedural Posture

Civil Appeal / Appeal From Pretoria High Court

Legal Issues

  1. 1 Whether the respondent, as conveyancer, was mandated to pay the proceeds of the sale of insolvent estate assets to a third party, De Mist Trust Corporate Services.
  2. 2 Whether the respondent acted negligently in paying the proceeds to De Mist Trust Corporate Services instead of the curators.
  3. 3 Whether the appellant discharged the onus of proving that payment to De Mist was not a term of the mandate.

Ratio Decidendi

The Supreme Court of Appeal held that the appellant failed to discharge the onus of proving that payment of the proceeds to De Mist Trust Corporate Services was not a term of the mandate given to the respondent. The evidence, particularly the testimony of Mr Endres, established that it was a standing practice and instruction within the respondent's firm to pay proceeds to De Mist when Mr Lüderitz was a curator. The court found no basis to reject Endres's evidence, which was corroborated by documentary records and the conduct of the parties. The court concluded that the respondent acted in accordance with the mandate and was not negligent. Accordingly, the appeal was dismissed with costs.

Court Disposition

Appeal dismissed with costs.

Orders

  • The appeal is dismissed with costs.