Basil Read (Pty) Ltd v Nedbank Ltd and Another (8283/12) [2012] ZAGPJHC 101; 2012 (6) SA 514 (GSJ) (13 April 2012)

Basil Read (Pty) Ltd v Nedbank Ltd and Another (8283/12) [2012] ZAGPJHC 101; 2012 (6) SA 514 (GSJ) (13 April 2012)

The court found that the applicant failed to join the opposing party and did not provide for service of the application or order, despite the order directly affecting the opposing party's rights. The applicant's attempt to supplement its founding affidavit was refused, as the authorities do not permit...

Source-derived case information.

Citation
[2012] ZAGPJHC 101
Parties
Applicant: Basil Read (Pty) Ltd; Respondent: Nedbank Limited; Respondent: African Minerals Engineering Limited
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
13 April 2012
Case Number
8283/12
Procedural Posture
Urgent Application / Application for Reconsideration of Urgent Interim Order
Outcome
Urgent interim order set aside; applicant's interlocutory application refused; costs awarded against applicant.
Judges
Saldulker
Legal Topics
Interim Interdict, Documentary Credit, Advance Payment Guarantee, Rule 6 12 C, Joinder of Parties
Civil Procedure Banking and Finance Interim Interdict Documentary Credit Advance Payment Guarantee Rule 6 12 C Joinder of Parties

Source-derived case record

Summary, issues, holding and outcome

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Parties

Basil Read (Pty) Ltd

Applicant

Nedbank Limited

Respondent

African Minerals Engineering Limited

Respondent

Procedural Posture

Urgent Application / Application for Reconsideration of Urgent Interim Order

Legal Issues

  1. 1 Whether the urgent interim order granted in the absence of the opposing party should be reconsidered and set aside.
  2. 2 Whether the applicant may supplement its founding affidavit in the reconsideration application.
  3. 3 Whether the advance payment guarantees are enforceable and payment should be interdicted.

Ratio Decidendi

The court found that the applicant failed to join the opposing party and did not provide for service of the application or order, despite the order directly affecting the opposing party's rights. The applicant's attempt to supplement its founding affidavit was refused, as the authorities do not permit supplementation in a Rule 6(12)(c) reconsideration by the applicant. The court held that the advance payment guarantees created independent contractual obligations for the bank to pay the beneficiary, and that disputes between the applicant's subsidiary and the opposing party were irrelevant to the bank's obligation. No fraud was alleged or proved on the papers. The urgent interim order was...

Court Disposition

Urgent interim order set aside; applicant's interlocutory application refused; costs awarded against applicant.

Orders

  • The orders sought by the applicant in its interlocutory application are refused.
  • The Rule Nisi granted on 30 March 2012 by Monama J is reconsidered and discharged. The order is set aside.