ABSA Bank v Zwane (2024/052922) [2025] ZAGPJHC 603 (9 June 2025)

ABSA Bank v Zwane (2024/052922) [2025] ZAGPJHC 603 (9 June 2025)

The court found that the Respondent failed to plead the existence of a contract, its terms, or a breach thereof. The Respondent did not attach the offer to purchase or specify the contractual parties and terms relied upon. The claim was based on the omission of a clause, not the breach of an existing term, and thus did not disclose a cause of action in contract. The pleadings were so fundamentally defective that they could not be remedied by amendment. Accordingly, the exception was upheld and the Particulars of Claim struck out.

Citation
[2025] ZAGPJHC 603
Parties
Defendant: ABSA Bank (PTY) LTD; Plaintiff: Ntombifuthi Zwane
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
9 June 2025
Case Number
2024/052922
Procedural Posture
Exception Application / Exception to Particulars of Claim
Outcome
Exception upheld; Respondent's Particulars of Claim struck out; investigation ordered into legal consultants; costs awarded against Excipient.
Judges
E Dreyer
Legal Topics
Exception Procedure, Breach of Contract, Pleading Requirements, Reckless Lending
Civil Procedure Commercial and Corporate Exception Procedure Breach of Contract Pleading Requirements Reckless Lending

Case Brief

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Parties

ABSA Bank (PTY) LTD

Defendant

Ntombifuthi Zwane

Plaintiff

Procedural Posture

Exception Application / Exception to Particulars of Claim

Legal Issues

  1. 1 Whether the Particulars of Claim disclose a cause of action in contract against the Excipient.
  2. 2 Whether the Respondent pleaded the necessary contractual nexus and terms to sustain a claim for damages.
  3. 3 Whether the pleadings can be remedied by amendment to disclose a recognisable cause of action.

Ratio Decidendi

The court found that the Respondent failed to plead the existence of a contract, its terms, or a breach thereof. The Respondent did not attach the offer to purchase or specify the contractual parties and terms relied upon. The claim was based on the omission of a clause, not the breach of an existing term, and thus did not disclose a cause of action in contract. The pleadings were so fundamentally defective that they could not be remedied by amendment. Accordingly, the exception was upheld and the Particulars of Claim struck out.

Court Disposition

Exception upheld; Respondent's Particulars of Claim struck out; investigation ordered into legal consultants; costs awarded against Excipient.

Orders

  • The exception is upheld.
  • The Respondent’s Particulars of Claim is struck out.