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IN THE HIGH COURT OF SOUTH AFRICA

(GAUTENG DIVISION, PRETORIA)

 

CASE NO: 41424/20

 

REPORTABLE: YES/NO

OF INTEREST TO OTHER JUDGES: YES/NO

REVISED

DATE: 21/09/2021

 

In the matter between:

 

AL MAYYA INTERNATIONAL LIMITED (BVI)                              PLAINTIFF

 

and

 

DPD VALUERS (PROPRIETARY) LIMITED                                   DEFENDANT

 

JUDGMENT IN RESPECT OF AN EXCEPTION RAISED BY THE DEFENDANT

 

PLAINTIFF'S CASE

 

1.           The Plaintiff's cause of action may be summarised as follows. The Sheikh Mohammed bin Hammad AI-Sharqi, the Crown Prince of Fujairah ("the Crown Prince") utilised the Plaintiff as a special purpose corporate vehicle to implement a transaction encompassing the purchase of an interest in a game farm called Rietkuil ("Rietkuil") in Limpopo province, South Africa.

 

2.           The farm Rietkuil was to be acquired by a special purpose vehicle called Valley of the Kings Thaba Motswere Proprietary Limited ("Valley of the Kings"), a company registered in South Africa. The Plaintiff would, in terms of the transaction, subscribe for shares in Valley of the Kings, being the entity in which the Crown Prince's interest in Rietkuil was to be held.

 

3.           The Crown Prince and/or the Plaintiff on or about 2 May 2012 engaged Clyde & Co LLP, a law firm practising professionally in Dubai in the United Arab Emirates ("Clyde & Co"), to advise him and/or the Plaintiff on the aforementioned transaction. In terms of its mandate from the Plaintiff, Clyde & Co would, inter alia, advise the Plaintiff how his investment in Rietkuil should be structured, draft relevant agreements, advise the Plaintiff on the real estate aspects of the transaction, oversee a due diligence investigation into the land ownership of Rietkuil, and review and advise on and assist with the negotiation of the purchase and sale agreement for Rietkuil.

 

4.           On 5 September 2012, and at Pretoria, Clyde & Co engaged the services of the Defendant to undertake the valuation of Rietkuil in order to determine its open market value and to furnish it with a written property report.

 

5.           The Plaintiff alleges that the Defendant conducted itself negligently in that - acting through one of its employees, a professional registered valuer by the name of Li-Alet Starke ("Starke") - the Defendant gave a valuation of the farm Rietkuil in the amount "R 104,414,150 rounded up to R 105,000,000" in circumstances where the Defendant's written property valuation report did not take into consideration that the Rietkuil farm had been bought and sold on the open market approximately 10 months previously for the sum of only R28,924,700.00. An entity called Thaba Motswere Game Farm Proprietary Limited ("TMots") had acquired Rietkuil for the aforementioned purchase price on 9 November 2011. The Defendant was aware of this previous sale. Given that the Defendant employed the comparable sales method, it was incumbent on the Defendant in determining the land component of Rietkuil to refer to this previous sale in the property valuation report.

 

6.           At the time of the compilation of the property valuation report, the Defendant knew (or ought to have known) that the Plaintiff intended to acquire a 55% equity interest in Valley of the Kings, that the Plaintiff would subscribe for 550 ordinary shares in Valley of the Kings by way of a subscription agreement for the total subscription price of R 100,000,000.00, that Valley of the Kings had acquired the accommodation and game business from TMots for a total purchase consideration of R 180,000,000.00 of which R 105,000,000.00 was attributed to the purchase price of Rietkuil (being the immovable properties only), that the Plaintiff would be the majority shareholder in Valley of the Kings, that Rietkuil was the principal asset of Valley of the Kings and determined the underlying value of its shares, and that the Plaintiff would rely on the property valuation report in concluding the subscription agreement.

 

7.           The Plaintiff, relying on the Defendant's property valuation report, concluded a subscription agreement on 27 September 2012, in terms whereof the Plaintiff subscribed for 550 ordinary shares in Valley of the Kings for the total subscription price of R 100,000,00.00 ("the subscription agreement").

 

8.           Prior to the Defendant preparing the property valuation report, as already mentioned, the Defendant was aware that TMots had acquired Rietkuil (being the immovable properties only) for a combined purchase price of R28,924,700.00 on 9 November 2011.

 

9.           In the premises, the Defendant knew that the open market value of Rietkuil on that date was R 28,924,700.00, inasmuch as that was the purchase price that a willing buyer was prepared to pay to willing sellers in arms-length transactions, being approximately only 10 months prior to the compilation of the property valuation report by the Defendant.

 

10.        The Defendant knew, or ought to have known, that if the Plaintiff had been aware that TMots had acquired Rietkuil only 10 months previously for the sum of R28, 924,700.00, or that the market value of Rietkuil was no more than that amount, it would not have concluded the subscription agreement, nor would it have paid the subscription price of R 100,000,000.00.

11.        The Plaintiff, relying on the property valuation report, duly paid the subscription price for the 550 ordinary shares in Valley of the Kings, being R 100,000,000, on 20 November 2012.

 

12.        The Plaintiff's investment has been irretrievably lost in that Valley of the Kings was placed initially in business rescue, and thereafter finally wound up by the High Court on 31 October 2018.At the date of winding up, Valley of the Kings was both factually and commercially insolvent and the insolvent position has remained unchanged since then. The Plaintiff's shares in Valley of the Kings are now worthless.

 

13.        The Defendant knew (or ought to have known) that the Plaintiff would rely on the property valuation report in concluding the subscription agreement and in paying the subscription price and that the Plaintiff would suffer loss in the event that the open market value of Rietkuil was overstated in the property valuation report.

 

14.        By virtue of the facts and circumstances set out in the Particulars of Claim, and summarised above, the Defendant had a duty in law to the Plaintiff to ensure that it exercised due care and skill in performing the valuation of Rietkuil and that the open market value of Rietkuil was not overstated in the property valuation report.

 

15.        The Plaintiff alleges that the Defendant acted negligently in that it inter alia failed to exercise due care and skill in performing the valuation of Rietkuil and failed to take account of comparable sales (particularly the recent previous sale of Rietkuil to TMots for a purchase price of R 28,924,700.00) and the Defendant derived an open market value of Rietkuil of R 105,000,000.00 when it's market value was in fact no more than R 29,000,000.00 (rounded up).

 

16.        The Defendant wrongfully and unlawfully breached its duty to the Plaintiff to prepare a valuation report with due care and skill which properly reflected the open market value of Rietkuil and in overstating the open market value of Rietkuil.

 

17.        As a consequence of the Defendant's conduct, the Plaintiff has suffered damages being the loss of the investment of R 100,000,000.00, for which the Defendant is liable. In the premises, the Defendant is liable to pay the Plaintiff the aforesaid amount as damages.

 

Defendant raised an exception on the following grounds

 

18.        The grounds of exception fall within the following categories:

 

18.1. There are no allegations supporting a conclusion that the open market value of the Rietkuil properties was less than stated in the defendant's valuation report. The fact that those properties had previously (and approximately a year prior) been sold by the entities owning the two portions to TMots for R28,924,700.00 does not constitute an allegation that as a fact and at the relevant time of the defendant's valuation report the amount for R28,924,700.00 was the true market value. In fact, the sale by TMots to Valley of the Kings had been at a price of R180 million. The transaction between TMots and the owners of the portions of Rietkuil is in any event not in itself evidence of open market value at the time. Allegations would need to be pleaded to the effect that the parties to those transactions based their price and indeed the terms of those agreements on open market value. The passage of time would also be relevant. The allegations pleaded are therefore fundamentally lacking in a cognisable cause of action.

 

18.2. There is no pleaded contractual nexus between the plaintiff and the defendant. In the first instance annexure POC3 (i.e. the subscription agreement) is in terms of which Mayya South African Limited ("Al Mayya") subscribed for shares in the Valley of the Kings (then known as Celsius Accommodation (Pty) Ltd. Moreover, any breach of an obligation contractually undertaken by the defendant can only at best give rise to a remedy in the hands of the party contracting with the defendant, in favour of the plaintiff and no legal duty of care could have arisen in delict visiting liability on the defendant in the event that the defendant might have (even if this were alleged) breached its agreement with Clyde and Co.

 

18.3. The allegations further do not sustain a conclusion that the plaintiff suffered loss in consequences of the defendant not having properly valued Rietkuil (if indeed this was the case). Any loss sustained by the plaintiff would be the diminution in the value of the plaintiff's investment in Valley of the Kings. The reason/s for Valley of the Kings being liquidated is not alleged and there is no causal nexus pleaded between the failure of Valley of the Kings and the value of Rietkuil. In addition, Valley of the Kings, even in liquidation would have assets and there is no allegation evidencing any relationship between the true value of Rietkuil and the diminished value of the plaintiff's investment in Valley of the Kings.

 

18.4. There is no basis pleaded as to why the purchase consideration of R105 million (referred to in POC para. 32.5) was unreliable or as to why a "market value of Rietkuil of R105 000 000.00 (rounded up)" referred to in paragraph 32.6 was "grossly unreasonable and inflated."

 

19.        The particulars of claim further fail to comply with Rule 18(6) and 18(10) in a number of respects and furthermore lack particularity such that the defendant can meaningfully plead to the allegations. These include:

 

19.1. The allegations that Clyde & Co was "engaged". It is unclear what is meant by "engaged" and more particularly whether a contract/agreement was concluded between the Crown Prince and Clyde & Co and if so, whether this was oral or in writing and what the material terms thereof were. The particulars in this instance fail to comply with Rule 18(6).

 

19.2. Allegations that at all material times the Crown Prince utilised the plaintiff as a special purpose corporate vehicle to implement the transaction is similarly vague and unclear. It is unclear as to what the "material times" are and it is further unclear what is meant by "a special purpose corporate vehicle" for the purposes of paragraph 4 of the particulars of claim.

 

19.3. Nor is it apparent from paragraphs 3 and 4 of the particulars of claim (in which "the transaction" is purportedly defined) what "the transaction" is in relation to the engagement of Clyde & Co.

 

19.4. It is unclear and not apparent from paragraph 10 whether the facts alleged in this paragraph were part of any agreement or contemplated at the time of any such agreement and, if so by whom and when.

 

19.5. Although reference is made in paragraphs 10, 13 and 14 of the particulars of claim to agreements, viz the acquisition of Rietkuil and the accommodation and game businesses (including a re-instatement and amendment agreement), the plaintiff has not annexed a copy of these relevant documents nor pleaded their material terms. This yet again constitutes a failure to comply with Uniform Rule of Court (18(6).

 

19.6. In paragraph 15 of the particulars of claim reference is made to an agreement concluded between Clyde & Co and the defendant and it is alleged that the agreement of engagement was "partly written and partly oral''. The plaintiff fails to identify or plead the material terms of oral portion of the agreement or the material terms of the written part of the agreement. This once again constitutes a failure to comply with Rule 18(6).

 

19.7. No basis nor facts are pleaded as to the manner in which and basis upon which the sum of R180 million referred to in paragraphs 12 and 30.3 was calculated and made up. This renders it not possible for the defendant to plead meaningfully to the allegations in paragraphs 12, 20.4,23,24,25 and 27 of the particulars of claim.

 

19.8. In paragraph 20.7 it is alleged that at the time of the compilation of the property valuation report the defendant knew or ought to have known that:

 

"20.7 The plaintiff would rely on the property valuation report in concluding the subscription agreement."

 

No basis is pleaded and no facts provided in support of this allegation, particularly in circumstances where Al Mayya International Limited BVI was to acquire and subscribe from the interest in Valley of the Kings.

 

19.9. In paragraph 25 it is alleged tht the defendant knew or ought to have known of the facts pleaded therein. No factual basis has however been pleaded or established as to why the defendant "ought to have known" of these "facts."

 

19.10. Similarly, no facts or basis is pleaded as to why the defendant ''ought to have known" the facts pleaded in paragraph 30. This is particularly problematic having regard to the value of the assets acquired by Valley of the Kings from TMots.

 

19.11. Although the plaintiff alleges that the defendant failed to comply with the "generally accepted valuation practises and procedures", the plaintiff has failed to identify the relevant practices and procedures and has further failed to identify the "comparable sales of agricultural properties in the area" that it is alleged ought have been taken into account but were not taken into account.

 

19.12. In paragraph 32 the plaintiff pleads as conclusions the respects on which it is alleged that the defendant compiled the property valuation report "negligently". None of the allegations is factually supported.

 

19.13. No factual basis has been pleaded as to why it is alleged that the "market value (i.e. of Rietkuil) was in fact no more than R29 million (rounded up)", particular having regard to the fact that the purchase price does not in itself equate to such value.

 

19.14. No basis is pleaded as to why the purchase consideration of R105 million referred to in paragraph 32.5 was unreliable nor why a "market value of Rietkuil of R105 000 000.00 (rounded up)" referred to in paragraph 32.6 was "grossly unreasonable and inflated."

 

19.15. The plaintiff has failed to plead facts supporting any payment by the plaintiff, more particularly when, where and in what manner the purchase investment value of R100 million was paid.

 

The legal principles

 

TELEMATRIX (PTY) LTD t/a MATRIX VEHICLE TRACKING V ADVERTISING STANDARDS AUTHORITY OF SA 2006(1) SA 461 (SCA)

 

The meaning of economic loss

 

20.        Pure economic loss in this context connotes loss that does not arise directly from damage to the plaintiff's person or property but rather in consequence of the negligent act itself, such as loss of profit, being put through extra expenses or the diminishing in the value of the property. (Telematrix para 1)

 

Whether issue of wrongfulness can be disposed of in an exception

 

21.        The Telematrix matter referred to the decision of Axiam Holdings Ltd vs Deloitte and Touche where the plaintiff argued that was inappropriate to decide the issue of wrongfulness on an exception because the issue is fact bound. The court stated that is not true in all cases. This court for one has on many occasions decided matters of this sought on exception. Three important judgments that spring to mind are Lillicrap, lndac and Kadir. Some public policy considerations can be decided without a detailed factual matrix, which by contract is essential for deciding negligence and causation.

 

The purpose of and approach to matters related to exception

 

22.        At paragraph 3 the Telematrix judgment stated that exceptions should be dealt with sensibly. They provide useful mechanism to weed out cases without legal merit. An over tactical approach destroys their utility. The court quoted Miller J in Devenport Corner Tea Room (Pty) Ltd vs Joubert where Miller J stated that the response to the exception should be like a sword that cuts through the tissue of which the exception is compounded and exposes its vulnerability. Miller J further stated that a measure of conjecture is undoubtedly both permissible and proper, but the shield should not be allowed to protect the respondent where it is composed entirely of conjectural and speculative hypothesis, lacking any real foundation in the pleadings or in the obvious fact.

 

Foreseeability in delictual claims

 

23.        Against that background the plaintiff in summary alleged against that background the plaintiff, who was bound to comply with the ruling, and that such a ruling could cause the plaintiff to suffer damages. The implication of these allegations is that the loss was foreseeable. Further, the Directorate-

'owed the plaintiff a duty of care to consider and arrive at a decision

 

(i)            without negligence;

(ii)          in a manner which is fair, justifiable and reasonable;

(iii)         within the ambit of the terms of the complaint; and

(iv)         in a manner that is not arbitrary."'

 

 (Para 6 Telematrix)

 

Exception raised by ASA

 

24.        The premise of the exception was that the ruling of the Directorate, in the circumstances alleged, did not amount to a wrongful act that could have given rise to a delictual claim and that the ASA did not breach any duty owed by it to the plaintiff. (Para 8 Telematrix)

 

The Court's approach to delictual matters

 

25.        The first principle of the law of delict, which is so easily forgotten and hardly appears in any local text on the subject, is, as the Dutch author Asser points out, that everyone has to bear the loss he or she suffers. The Afrikaans aphorism is that 'skade rus waar dit val.' Aquilian liability provides for an exception to the rule and, in order to be liable for the loss of someone else, the act or omission of the defendant must have been wrongful and negligent and have caused the loss. (Para 12 Telematrix)

 

26.        When dealing with the negligent causation of pure economic loss it is well to remember that the act or omission is not prima facie wrongful ('unlawful' is the synonym and is less of a euphemism) and that more is needed. In other words, conduct is wrongful if public policy demand in the circumstances the plaintiff has to be compensated for the loss caused by the negligent act or omission of the defendant. (Para 3 Telematrix)

 

27.        To sum up: In different situations courts have found that public policy considerations require that adjudicators of disputes are immune to damages claims in respect of their incorrect and negligent decisions. The overriding consideration has always been that, by the very nature of the adjudication process, rights will be affected and that the process will bog down unless decisions can be made without fear of damages claims, something that must impact on the independence of the adjudicator. Decisions made in bad faith are, however, unlawful and can give rise to damages claims.

 

Does Telematrix have application to the case in casu

 

28.        As stated in paragraph 26, Telematrix dealt with a case which related to adjudicators of disputes. Such adjudicators range in spectrum from local authorities to quasi-judicial and administrative entities such as the ASA in that case.

 

29.        Even though Telematrix does not fit snuggly with the facts of the current case. Some of the aspects in Telematrix relating to how to approach delict and wrongfulness resonate with the current case.

 

30.        As stated in Telematrix this Court is empowered to deal with the issue of wrongfulness at an exception stage and need not defer the issue to the trial court.

 

31.        Aquilian liability provides that in order to be liable for the loss of someone else, the Act or omission of the defendant must have been wrongful and negligent and have caused the loss.

 

32.        I will come back to the issues pertaining to wrongfulness and foreseeability. At this stage I would like to deal with the issue of the duty of care to enable me to holistically assess this matter.

 

De Bruyn vs Steinhoff International Holdings N.V and Others 29290/2018 delivered 26 June 2020, per Unterhalter J

 

33.        This is the relevant case which dealt with the duty of care in circumstances relating to an entity which was contracted to carry an assignment in its professional capacity.

 

34.        Ms De Bruyn seeks to hold Deloitte liable for the damages caused to shareholders and prospective shareholders as a result of Deloitte's negligent performance of the audit of SIHL. The auditors negligently represented that the financial statements were reasonably free of error when they were not; the quoted share price of the shares was influenced by what was contained in the financial statements; and shareholders and prospective shareholders relied upon the price to acquire shares or maintain their holding of Steinhoff shares. (Para 163)

 

35.        As with the claim against the Steinhoff directors, this cause of action requires a showing of wrongfulness in respect of a claim for negligent misstatement causing pure economic loss. In a claim against an auditor for pure economic loss wrongfulness is not presumed. (Para 164)

 

36.        The court referred to the matter of Caparo and stated the following; Caparo complained that its purchase of shares and bid were made in reliance on the accounts which were misleading in overvaluing the stock and undervaluing the after sales credit. Caparo sued the auditors for negligently certifying that the accounts showed a true and fair view of Fidelity's financial position, when they did not. (Para 165)

 

37.        If the negligent audit of a company were to deprive the shareholders of their powers in general meeting to call the directors to account that might give rise to a cause of action. However, there was no basis to find that the scope of the duty of an auditor to a shareholder extends to a decision to purchase additional shares. That decision is one taken by an existing shareholder from a position no different to any other member of the investing public. (Para 166)

 

38.        There is much in Caparo that is of persuasive value. First, there is no duty of care to the public that relies upon the audited accounts of a company. Such liability is far too diffuse and indeterminate. Second, in order to find that the auditors owe a duty of care to shareholders the auditors must apprehend or reasonably apprehend that their advice will be relied upon by a particular class of shareholder for a particular purpose or transaction. Whether described as proximity or a special relationship, unless advice is sought and given to specific persons who depend upon it for a particular purpose, it is hard to see how auditors may be held responsible to all shareholders for anything they may decide to do on the strength of the company accounts. Third, in most circumstances, the harm done by the auditors' negligence is done to the company and any loss may be claimed by the company to the indirect benefit of shareholders through their shareholding. If the shareholders have suffered a distinctive loss as a result of the shares they have bought in the company or shares they did not sell, absent a special advisory relationship, shareholders are in no different position to other members of the investing public to whom auditors of a company owe no duty of care.

 

39.        At paragraph 171 dealing with the decision of Livent vs Deliotte and Touche the court stated the following: "Second, the court found that there may be a proximate relationship between an auditor and its corporate client giving rise to a duty of care, but the scope of that duty is constrained by the purpose for which the services of the auditor were rendered and the reliance that the client places on the advice or service rendered."

 

40.        The revised draft pleadings, taken together with the affidavits, in my view fail to disclose a cause of action against Deloitte. First, there is no case pleaded that Deloitte's opinion concerning the accounts of SIHL was sought by Steinhoff shareholders, nor that there was any special relationship that subsisted between Deloitte and the Steinhoff shareholders; nor that Deloitte had any reason to apprehend that the Steinhoff shareholders (or a subset of them) would rely upon Deloitte's opinion concerning the accounts when making investment decisions about the acquisition or disposal of Steinhoff shares. (Para 174)

 

41.        At paragraph 177 the court stated the following: Fourth, and for reasons already explained in respect of directors, there is no compelling basis to suppose that the transfer to auditors of the risks associated with investment decisions made by persons paying regard to distorted price signals would yield some net social benefit, even if the auditors' incorrect opinion may have contributed to that distortion. An investment in shares is an investment in a risk asset. Many factors may influence the price of a share, including information that turns out to be false. That is one of the risks that inheres in this type of asset. Better in my estimation, as a matter of policy, to let the risk of faulty opinions lie with those who invest in traded equities and enjoy the returns of their risk-taking.

 

42.        At paragraph 179 the court stated the following: "Deloitte submitted that a claim for negligent misstatement that rests upon the effect of the misstatement upon the price of the shares in the market and the decisions by investors to buy or sell shares cannot meet the requirement of legal causation - the causal connection is too remote. Given the conclusion that I have reached as to wrongfulness in respect of the auditors' liability claim, there is no need to determine this criticism of the proposed cause of action. For the same reason, I do not need to determine whether there is a prima facie case in delict made against Deloitte"

 

Considering the exceptions

 

43.        The grounds of exceptions raised by the defendant have merits. Having regard to the case authority that has been dealt with above, the following can be stated, in paragraph 7.2 of the heads of argument the defendant stated the following; There is no pleaded contractual nexus between the plaintiff and the defendant. In the first instance annexure POC3 (i.e. the subscription agreement) is in terms of which Mayya South African Limited ("Al Mayya") subscribed for shares in the Valley of the Kings (then known as Celsius Accommodation (Pty) Ltd. Moreover, any breach of an obligation contractually undertaken by the defendant can only at best give rise to a remedy in the hands of the party contracting with the defendant, i.e. Clyde & Co. no obligation was undertaken by the defendant in favour of the plaintiff and no legal duty of care could have arisen in delict visiting liability on the defendant in the event that the defendant might have (even if this where alleged) breached its agreement with Clyde & Co."

 

44.        I also agree with the submission at paragraph 7.3 of the defendant's heads of argument, the allegations further do not sustain a conclusion that the plaintiff suffered loss in consequences of the defendant not having properly valued Rietkuil (if indeed this was the case). Any loss sustained by the plaintiff would be the diminution in the value of the plaintiff's investment in Valley of the Kings. The reason/s for Valley of the Kings being liquidated is not alleged and there is no causal nexus pleaded between the failure of Valley of the Kings and the value of Rietkuil. In addition, Valley of the Kings, even in liquidation would have assets and there is no allegation evidencing any relationship between the true value of Rietkuil and the diminished value of the plaintiff's investment in Valley of the Kings."

 

45.        I also agree with what is stated at paragraph 7.4 of the defendant's heads of argument, There is no basis pleaded as to why the purchase consideration of R105 million (referred to in POC para. 32.5) was unreliable or as to why a "market value of Rietkuil of R105 000 000.00 (rounded up)" referred to in paragraph 32.6 was "grossly unreasonable and inflated."

 

46.        I also agree with the submissions contained in paragraph 8 of the defendant's heads of argument relating to Rule 18(6) and Rule 18(10) relating to vague reference to material terms of the various agreements, engagements, transactions, various material terms, failure to plead the terms of the partly written and partly oral, failure to plead properly relating to what is meant by "ought to have known" and failure to properly plead to instances relating to generally accepted valuation practices and procedures.

 

47.        As stated in the case of De Bruyn, the plaintiff took the risk of investing in Valley of Kings, a company with a share capital of R180 million. The plaintiff bought 55% shares in Valley of Kings which translated to a monetary round figure value of R105 million. The plaintiff relies entirely on the alleged wrongful valuation by the Defendant and accordingly seeks to pin its decision to invest on Valley of the Kings on the Defendant.

 

48.        The defendant is an entity which has expertise in valuation of immovable properties. It has no expertise in valuation of shares nor does it purport to have such expertise. The plaintiff has involved the expertise of a reputable and corporate law firm, Webber Wentzel in South Africa to assist it with due diligence. (See particulars of claim para 8.2)

 

49.        I find that the attempts by the plaintiff to pin its loss of investment in Valley of the Kings is farfetched and in fact is an attempt to clutch on the straws. In the light of the fact that the plaintiff had retained at its disposal the relevant experts to advise it on sensible investment decisions, it is simply beggars belief why, plaintiff would outlay such a massive investment based on the valuation report of the defendant, an entity whose expertise are limited to valuation of immovable properties. It goes without saying that the plaintiff relied on more than the defendant's valuation report to invest in Valley of the Kings. As stated in De Bruyn, the investment did not pay off and its collapse cannot be attributed to the conduct of the defendant. The plaintiff took what it regarded as a calculated risk and unfortunately it has to take responsibility for the risk not paying dividends.

 

50.        It is also apparent that the defendant does not have any contractual relationships with the plaintiff. There is no doubt that the defendant does not owe any duty of care to the plaintiff.

 

 

The order

 

51.        I make the order in terms of the draft order which is uploaded on Caselines by the Defendant.

 

 

TD SENEKE AJ

 

Acting Judge of the High Court

Gauteng Division, Pretoria

 

Appearances

 

For excipient:          Adv A Subel SC

Instructed by Yammin Hammond Inc

c/o PDR Attorneys Inc

213 Richard Street

Hatfield

Pretoria

 

For respondent:      Adv G.W Woodland SC & Adv C Cutler

Instructed by Gillan & Veldhuizen Inc

c/o Jacobson & Levy Inc

215 Orient Street

Arcadia

Pretoria

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