Changing Tides 17 (Pty) Ltd N.O v Congwane (2015/94919) [2016] ZAGPJHC 128 (30 May 2016)

Changing Tides 17 (Pty) Ltd N.O v Congwane (2015/94919) [2016] ZAGPJHC 128 (30 May 2016)

The court found that the applicant failed to adequately plead and prove the terms of the guarantee, the calculation of the outstanding amount, and the circumstances under which the guarantee was called up. The certificate of indebtedness was not accepted as prima facie evidence due to deficiencies in the supporting affidavit and lack of direct access to relevant records. The deeming provision in the indemnity cannot substitute for proper pleading and disclosure of the actual liability incurred by the Trust to Blue Banner. The court held that the particulars of claim must be amended to set out the necessary allegations and attach the relevant agreements. Costs incurred up to delivery of...

Citation
[2016] ZAGPJHC 128
Parties
Applicant: Changing Tides 17 (Pty) Ltd N.O; Respondent: Kefentse Martha Congwane
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
30 May 2016
Case Number
2015/94919
Procedural Posture
Default Judgment Application / Application for Default Judgment; Judgment Delivered
Outcome
Application for default judgment refused; plaintiff directed to amend particulars of claim.
Judges
Spilg
Legal Topics
National Credit Act, Securitisation, Guarantee and Indemnity, Consumer Protection Act, Certificate of Indebtedness
Banking and Finance Civil Procedure National Credit Act Securitisation Guarantee and Indemnity Consumer Protection Act Certificate of Indebtedness

Case Brief

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Parties

Changing Tides 17 (Pty) Ltd N.O

Applicant

Kefentse Martha Congwane

Respondent

Procedural Posture

Default Judgment Application / Application for Default Judgment; Judgment Delivered

Legal Issues

  1. 1 Whether the plaintiff, as trustee for the Trust, has established a cause of action against the defendant based on the indemnity and guarantee structure.
  2. 2 Whether the certificate of indebtedness constitutes prima facie evidence of the amount owed.
  3. 3 Whether the particulars of claim adequately plead the terms and calling up of the guarantee and calculation of the outstanding amount.

Ratio Decidendi

The court found that the applicant failed to adequately plead and prove the terms of the guarantee, the calculation of the outstanding amount, and the circumstances under which the guarantee was called up. The certificate of indebtedness was not accepted as prima facie evidence due to deficiencies in the supporting affidavit and lack of direct access to relevant records. The deeming provision in the indemnity cannot substitute for proper pleading and disclosure of the actual liability incurred by the Trust to Blue Banner. The court held that the particulars of claim must be amended to set out the necessary allegations and attach the relevant agreements. Costs incurred up to delivery of...

Court Disposition

Application for default judgment refused; plaintiff directed to amend particulars of claim.

Orders

  • The plaintiff must amend its particulars of claim to set out the terms of the guarantee (Common Terms Agreement and any variations), the circumstances and amount of the guarantee being called up, and the calculation of the outstanding amount.
  • The amended particulars and a copy of this judgment must be served on the defendant personally, affording her 15 days to oppose.