ABSA Bank Limited v Ntlonze (1415/2024) [2024] ZAECMKHC 132 (3 September 2024)

ABSA Bank Limited v Ntlonze (1415/2024) [2024] ZAECMKHC 132 (3 September 2024)

The court held that the defendant's inability to earn income due to the Covid-19 lockdown did not amount to supervening impossibility of performance. The test is objective, and mere economic hardship or loss of profitability does not excuse contractual obligations. The contract was silent on force majeure, so common law applied. The defendant remained in substantial arrears beyond the lockdown period and failed to tender return of the vehicle, which is fatal to his defence. The plaintiff established entitlement to summary judgment, as the defendant's arguments did not raise a triable issue.

Citation
[2024] ZAECMKHC 132
Parties
Plaintiff: ABSA Bank Limited; Defendant: Thembalihle Claubus Ntlonze
Court
Eastern Cape High Court, Makhanda
Jurisdiction
South Africa
Judgment Date
3 September 2024
Case Number
1415/2024
Procedural Posture
Summary Judgment Application / Application for Summary Judgment Following Defended Action
Outcome
Summary judgment granted in favour of the plaintiff.
Judges
NJ Mullins
Legal Topics
Credit Agreement Breach, Supervening Impossibility, Summary Judgment, Force Majeure, Covid 19 Lockdown, Return of Goods
Commercial and Corporate Civil Procedure Credit Agreement Breach Supervening Impossibility Summary Judgment Force Majeure Covid 19 Lockdown Return of Goods

Case Brief

Summary, issues, holding and outcome

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Parties

ABSA Bank Limited

Plaintiff

Thembalihle Claubus Ntlonze

Defendant

Procedural Posture

Summary Judgment Application / Application for Summary Judgment Following Defended Action

Legal Issues

  1. 1 Whether the Covid-19 pandemic and resultant lockdown constituted supervening impossibility of performance excusing the defendant's breach of the credit agreement.
  2. 2 Whether the defendant's arrears and failure to return the vehicle justified summary judgment for the plaintiff.
  3. 3 Whether economic hardship due to lockdown is a valid defence to contractual breach under South African law.

Ratio Decidendi

The court held that the defendant's inability to earn income due to the Covid-19 lockdown did not amount to supervening impossibility of performance. The test is objective, and mere economic hardship or loss of profitability does not excuse contractual obligations. The contract was silent on force majeure, so common law applied. The defendant remained in substantial arrears beyond the lockdown period and failed to tender return of the vehicle, which is fatal to his defence. The plaintiff established entitlement to summary judgment, as the defendant's arguments did not raise a triable issue.

Court Disposition

Summary judgment granted in favour of the plaintiff.

Orders

  • Confirmation of the cancellation of the agreement.
  • Return of the 2019 TOYOTA QUANTUM 2.5 D-4D SESFIKILE 16S with specified engine and chassis numbers.