Client success story: Absolution from the Instance in Contractual Dispute
In a recent High Court judgment in Liberty Group Ltd v Kokerboom Management (Pty) Ltd and Another, the Honourable Nuku J granted absolution from the instance against the plaintiff, Liberty Group Limited. This judgment serves as a critical reminder of a fundamental legal principle: a party claiming payment under a contract must first present sufficient evidence to establish a prima facie case.
The Plaintiff's Failure to Establish a Prima Facie Case
Absolution from the instance is granted when a plaintiff fails to produce evidence upon which a court, applying its mind reasonably, could find in their favour. In this matter, the plaintiff’s case for a claim exceeding R518,000 faltered on several key evidentiary points:
Discredited Certificate of Balance: The plaintiff's initial reliance on a certificate of balance was undermined when its own witness admitted under cross-examination that the certificate was incorrect and included amounts not actually due.
Missing Contractual Terms: The plaintiff failed to prove the specific terms of its Affiliate Agreement because the key schedule (Annexure "D"), intended to outline the basis for remuneration and clawbacks, was left blank.
Unproven Calculations: For a separate Funding Agreement, the plaintiff sought a reduced amount but presented no evidence at trial to substantiate the calculation of this new figure. The judge noted this calculation was never canvassed with any witness.
The Court's Finding
The Court found that the plaintiff had failed to meet its basic legal burden. In his judgment, Nuku J concluded:
"The plaintiff is the party best suited to explain how these amounts are calculated. Understandably, it relied on the certificate of balance when the action was started, but things changed when it could no longer rely on it after it was shown to be wrong. When that happened, as argued on behalf of the defendants, the plaintiff needed to (a) prove the terms of the agreements, and (b) show evidence that supports its claim within the contract's terms. The plaintiff has failed to do this, and as a result, the Court cannot come to its assistance.”
Conclusion
We are thankful for the trust placed in our firm by our clients, Kokerboom Management (Pty) Ltd and Mr Pierre Jacques Theron, to represent them in this matter. We believe that justice prevailed through the correct application of established legal principles regarding the burden of proof. We also extend our gratitude to our counsel for his invaluable contribution and skilled advocacy in court.
