Absa Bank Ltd v Tlale No and Others (3471/2007) [2010] ZAFSHC 162 (11 November 2010)

Absa Bank Ltd v Tlale No and Others (3471/2007) [2010] ZAFSHC 162 (11 November 2010)

The court held that the defendants' claim against the third party was framed in delict, specifically for pure economic loss. However, the relief sought was not for damages, but rather for indemnification or payment of the debt owed to the plaintiff, which is not a remedy available in delictual proceedings. The only remedy in an acquilian action is a claim for damages, and the defendants failed to allege that they suffered damages in the form required by law. The proposed amendment to the third party notice did not cure this defect. Consequently, the exception was upheld, the third party notice was struck out, and the application for leave to amend was dismissed. Costs followed the result,...

Citation
[2010] ZAFSHC 162
Parties
Plaintiff: Absa Bank Limited; First Defendant: Mrs Phuti Joyce Tlale N.O.; Second Defendant: Mrs Phuti Joyce Tlale; Third Party: Momentum Group Limited
Court
Free State High Court, Bloemfontein
Jurisdiction
South Africa
Judgment Date
11 November 2010
Case Number
3471/2007
Procedural Posture
Civil Procedure / Exception to Third Party Notice and Application for Leave to Amend
Outcome
Exception upheld; third party notice struck out; application for leave to amend dismissed; defendants granted leave to amend within ten days; costs awarded against defendants.
Judges
C.H.G. Van der Merwe
Legal Topics
Third Party Proceedings, Delictual Liability, Pure Economic Loss, Insurance Cession, Actio Legis Acquiliae
Civil Procedure Delict Banking and Finance Third Party Proceedings Delictual Liability Pure Economic Loss Insurance Cession Actio Legis Acquiliae

Case Brief

Summary, issues, holding and outcome

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Parties

Absa Bank Limited

Plaintiff

Mrs Phuti Joyce Tlale N.O.

First Defendant

Mrs Phuti Joyce Tlale

Second Defendant

Momentum Group Limited

Third Party

Procedural Posture

Civil Procedure / Exception to Third Party Notice and Application for Leave to Amend

Legal Issues

  1. 1 Whether the third party notice discloses a valid cause of action in delict against the third party.
  2. 2 Whether the relief claimed by the defendants against the third party is legally sustainable in delict.
  3. 3 Whether the application for leave to amend the third party notice cures the defects identified in the exception.

Ratio Decidendi

The court held that the defendants' claim against the third party was framed in delict, specifically for pure economic loss. However, the relief sought was not for damages, but rather for indemnification or payment of the debt owed to the plaintiff, which is not a remedy available in delictual proceedings. The only remedy in an acquilian action is a claim for damages, and the defendants failed to allege that they suffered damages in the form required by law. The proposed amendment to the third party notice did not cure this defect. Consequently, the exception was upheld, the third party notice was struck out, and the application for leave to amend was dismissed. Costs followed the result,...

Court Disposition

Exception upheld; third party notice struck out; application for leave to amend dismissed; defendants granted leave to amend within ten days; costs awarded against defendants.

Orders

  • The exception against the third party notice is upheld.
  • The third party notice is struck out.