Liberty Group Limited v Kokerboom Management (Pty) Ltd and Another (19172/2022) [2025] ZAWCHC 501 (28 October 2025)

Case Note

Liberty Group Ltd v Kokerboom Management (Pty) Ltd and Another
Case no: 19172/2022
[2025] ZAWCHC 500 (28 October 2025)

Reportability

This case is reportable as it addresses significant principles of contract law in South Africa, particularly regarding the importance of pleading and proving the terms of an agreement when seeking repayment. The case illustrates the procedural burdens placed on plaintiffs in contract disputes and clarifies the evidentiary requirements for establishing claims therein. The implications of the court's determinations regarding absolution from the instance shed light on the importance of accurate and sufficient evidence in contract enforcement scenarios.

Cases Cited

• Forbes v Golach & Cohen 1917 AD 559
• Liberty Group Ltd t/a Liberty Life v K & D Telemarketing (75525/2010) [2015] ZAGPPHC 1135 (4 September 2015)

Legislation Cited

• Prescription Act 69 of 1969
• Bills of Exchange Act 34 of 1964

Rules of Court Cited

None specifically referenced in the judgment.

HEADNOTE

Summary

In this matter, the plaintiff Liberty Group Limited sought repayment from the defendants, based on three separate agreements. The court assessed whether the plaintiff had adequately established the defendants' indebtedness and scrutinized the applicability of additional oral terms and the prescription of the claim. Ultimately, the court found that the plaintiff failed to substantiate its claims sufficiently to warrant a judgment in its favor, resulting in an order for absolution with costs.

Key Issues

The central legal issues in this judgment included the following:

1. Whether the plaintiff established the defendants' indebtedness.
2. The existence and impact of oral terms agreed upon outside the formal contracts.
3. Whether the plaintiff's claims were subject to prescription under the relevant statute.

Held

The court concluded that the plaintiff had failed to prove the defendants' indebtedness sufficiently. Consequently, it granted the defendants absolution from the instance with costs, holding that the procedural onus rested with the plaintiff to establish its claims rooted in the contract's terms.

THE FACTS

The plaintiff, Liberty Group Ltd, demanded repayment of R409,258.11 from the defendants, Kokerboom Management (Pty) Ltd and Pierre Jacques Theron. The claim stemmed from three agreements, including an Affiliate Agreement, a Funding Agreement, and a Confirmation of Settlement and Undertaking to Repay (AOD). The plaintiff's primary contention was that the defendants had failed to meet stipulated performance targets, leading to a loan repayment status.

Crucially, the Affiliate Agreement included provisions around advances made to the defendant, the accrual of interest, evidence of indebtedness via a certified document, and stipulations concerning fees for services rendered. An issue arose concerning an annexure that was found to be blank, raising significant questions regarding the enforceability of the claim.

The defendants contended various defenses, including disputing the liability, claiming that the plaintiff had breached oral terms, and asserting that any claims had prescribed. The plaintiff asserted that the necessary acknowledgment by the defendants interrupted the prescription period, and the court was tasked with evaluating these claims against the evidentiary backdrop established during the trial.

THE ISSUES

The legal questions to be decided involved: 1. Did the plaintiff prove the defendants' indebtedness for the claimed amounts? 2. Were there any additional oral terms affecting the agreements, and did any breach excuse the defendants' liability? 3. Had the plaintiff's claim prescribed under the Prescription Act?

ANALYSIS

In its analysis, the court focused on the evidentiary requirements for establishing a contractual claim. The plaintiff bore the burden of demonstrating the validity of its claims under the agreements. The court underscored that without a detailed explanation of how the claimed amounts arose—and particularly given the blank annexure which was supposed to articulate remuneration—it could not conclusively hold the defendants liable.

Additionally, the reliance on a certificate of balance that proved to be inaccurate further complicated the plaintiff's position. The court noted that the intricacies of the agreements’ terms and a lack of clarity regarding the terms of remuneration placed the plaintiff in a difficult position. The court highlighted that a claimant must provide clear and convincing evidence that aligns with the terms of the contract as agreed upon by the parties involved.

The court determined that the plaintiff's case was undermined by the inconsistencies in claims presented at trial, such as contradictions with the actual amounts that were stated as owed versus what was supported by the evidence. Thus, the court concluded that absolution was the appropriate remedy.

REMEDY

As a result of its findings, the court issued an order for absolution from the instance, thereby relieving the defendants from the necessity of further performance or liability in respect of the plaintiff's claims, and awarding costs to the defendants, including the costs associated with counsel, in accordance with Scale B.

LEGAL PRINCIPLES

The judgment elucidated critical legal principles, including: - The necessity for a party claiming payment under a contract to plead and substantiate the specific terms and conditions laid out in the agreement. - The implications of evidence concerning performance and compliance with contractual obligations. - The importance of clarity and precision in the presentation of claims, particularly in contract disputes where monetary claims are contested. - The impact of prescription on claims, specifically how acknowledgment of liability can affect the running of the prescription period under relevant statutes.

This case serves as a pointed reminder of the rigorous standards plaintiffs must meet when seeking to enforce contractual rights, especially in complex transactional contexts.