Wilson v Pecanprops 43 CC and Others (987/2010) [2011] ZANWHC 6 (24 February 2011)

Wilson v Pecanprops 43 CC and Others (987/2010) [2011] ZANWHC 6 (24 February 2011)

The court found that the second respondent failed to establish the necessary elements of fraudulent misrepresentation. There was no allegation or proof of a prior oral agreement, no particularity regarding the terms allegedly misrepresented, and no evidence that the applicant knew any representation to be false. The...

Source-derived case information.

Citation
[2011] ZANWHC 6
Parties
Applicant: Gregory Martin Wilson; Respondent: Pecanprops 43 CC; Respondent: Mugadi Samuel Mngomezulu; Respondent: Isaac Kabelo Kutu
Court
North West High Court, Mafikeng
Jurisdiction
South Africa
Judgment Date
24 February 2011
Case Number
987/2010
Procedural Posture
Civil Application / Judgment After Opposed Application
Outcome
Application granted; judgment entered against all respondents jointly and severally.
Judges
Kgoele
Legal Topics
Mortgage Loan Agreement, Suretyship, Certificate of Balance, Fraudulent Misrepresentation, Dispute of Fact, Rectification of Contract
Banking and Finance Civil Procedure Mortgage Loan Agreement Suretyship Certificate of Balance Fraudulent Misrepresentation Dispute of Fact Rectification of Contract

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Parties

Gregory Martin Wilson

Applicant

Pecanprops 43 CC

Respondent

Mugadi Samuel Mngomezulu

Respondent

Isaac Kabelo Kutu

Respondent

Procedural Posture

Civil Application / Judgment After Opposed Application

Legal Issues

  1. 1 Whether the applicant is entitled to judgment against the respondents for the claimed amount under the mortgage loan and suretyship agreements.
  2. 2 Whether the second respondent has established a bona fide defense of fraudulent misrepresentation sufficient to warrant referral to oral evidence.
  3. 3 Whether the written agreements should be rectified to correct the misdescription of the first respondent's name.

Ratio Decidendi

The court found that the second respondent failed to establish the necessary elements of fraudulent misrepresentation. There was no allegation or proof of a prior oral agreement, no particularity regarding the terms allegedly misrepresented, and no evidence that the applicant knew any representation to be false. The disputes raised by the second respondent were found to be fictitious, uncreditworthy denials, and palpably implausible versions that could be rejected on the papers without referral to oral evidence. The written agreements constituted the sole recordal of the parties' terms, and the principle of caveat subscriptor applied. The applicant was entitled to judgment as claimed,...

Court Disposition

Application granted; judgment entered against all respondents jointly and severally.

Orders

  • Judgment is granted against the first, second and third respondents jointly and severally, the one paying the other to be absolved.
  • Payment of the sum of R1 889 017,29.