Wallach v Lew Geffen Estates CC (110/91) [1993] ZASCA 39; 1993 (3) SA 258 (AD); [1993] 2 All SA 213 (A) (25 March 1993)

Wallach v Lew Geffen Estates CC (110/91) [1993] ZASCA 39; 1993 (3) SA 258 (AD); [1993] 2 All SA 213 (A) (25 March 1993)

The court held that the appellant and Wallach were in breach of the settlement agreement and order of court by failing to pay the required interest and instalment on the due date, and by failing to cede the mortgage bond as security. The appellant's arguments regarding the typed copy and cheque presentation were rejected as unfounded. The alleged oral agreement was not raised in the affidavits and was inconsistent with the admissions made. The order referring the matter for oral evidence was interlocutory and not appealable. The court a quo was entitled to decide the matter on affidavit, as oral evidence would not have affected the outcome. The appeal was dismissed with costs.

Citation
[1993] ZASCA 39
Parties
Appellant: Regina Mila Wallach; Respondent: Lew Geffen Estates CC
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
25 March 1993
Case Number
110/91
Procedural Posture
Civil Appeal / Appeal From Judgment of Court a Quo; Consideration of Interlocutory Order and Merits
Outcome
Appeal dismissed with costs, including costs of application for leave to appeal.
Judges
Hoexter, Milne, F H Grosskopf, Goldstone, Howie
Legal Topics
Suretyship, Interlocutory Orders, Acceleration Clause, Breach of Settlement Agreement
Civil Procedure Commercial and Corporate Suretyship Interlocutory Orders Acceleration Clause Breach of Settlement Agreement

Case Brief

Summary, issues, holding and outcome

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Parties

Regina Mila Wallach

Appellant

Lew Geffen Estates CC

Respondent

Procedural Posture

Civil Appeal / Appeal From Judgment of Court a Quo; Consideration of Interlocutory Order and Merits

Legal Issues

  1. 1 Whether the appellant was in breach of the settlement agreement and order of court.
  2. 2 Whether the court a quo was correct to decide the matter on affidavit without hearing oral evidence.
  3. 3 Whether the interlocutory order referring the matter for oral evidence was appealable.

Ratio Decidendi

The court held that the appellant and Wallach were in breach of the settlement agreement and order of court by failing to pay the required interest and instalment on the due date, and by failing to cede the mortgage bond as security. The appellant's arguments regarding the typed copy and cheque presentation were rejected as unfounded. The alleged oral agreement was not raised in the affidavits and was inconsistent with the admissions made. The order referring the matter for oral evidence was interlocutory and not appealable. The court a quo was entitled to decide the matter on affidavit, as oral evidence would not have affected the outcome. The appeal was dismissed with costs.

Court Disposition

Appeal dismissed with costs, including costs of application for leave to appeal.

Orders

  • The appeal is dismissed with costs, including the costs of the application for leave to appeal.
  • For the guidance of the taxing master, although heads of argument were filed for the respondent, it was not represented by counsel before the appellate court.