Changing Tides 17 (Pty) Ltd N.O. v Pasiya and Others (62/2023) [2024] ZAECMKHC 13 (30 January 2024)

Changing Tides 17 (Pty) Ltd N.O. v Pasiya and Others (62/2023) [2024] ZAECMKHC 13 (30 January 2024)

The court found that the plaintiff was not precluded from applying for summary judgment, as it had not taken any procedural steps beyond filing and subsequently withdrawing an exception, which did not bar the application. The defendant failed to establish a bona fide defence or a valid counter-claim. Her assertion of a duty of care owed by the plaintiff was unsupported by facts, and the contractual documents excluded delictual claims. The plaintiff was not a party to the home loan agreement between the defendant and the lender, and the defendant retained ownership of the property despite its seizure under POCA, remaining liable for her contractual obligations. The defendant's delictual...

Citation
[2024] ZAECMKHC 13
Parties
Plaintiff: Changing Tides 17 (Pty) Ltd N.O.; Defendant: Buyiswa Grace Pasiya; Respondent: KPMG (Pty) Ltd; Respondent: Allen Few
Court
Eastern Cape High Court, Makhanda
Jurisdiction
South Africa
Judgment Date
30 January 2024
Case Number
62/2023
Procedural Posture
Summary Judgment Application / Judgment on Summary Judgment Application
Outcome
Summary judgment granted in favour of the plaintiff.
Judges
JE Smith
Legal Topics
Summary Judgment, Indemnity Bond, Duty of Care, Pure Economic Loss, National Credit Act Compliance
Civil Procedure Banking and Finance Summary Judgment Indemnity Bond Duty of Care Pure Economic Loss National Credit Act Compliance

Case Brief

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Parties

Changing Tides 17 (Pty) Ltd N.O.

Plaintiff

Buyiswa Grace Pasiya

Defendant

KPMG (Pty) Ltd

Respondent

Allen Few

Respondent

Procedural Posture

Summary Judgment Application / Judgment on Summary Judgment Application

Legal Issues

  1. 1 Whether the plaintiff is precluded from applying for summary judgment due to alleged procedural steps taken.
  2. 2 Whether the defendant has established a bona fide defence or counter-claim based on an alleged duty of care owed by the plaintiff.
  3. 3 Whether the defendant's delictual counter-claim based on pure economic loss is sustainable against the plaintiff.

Ratio Decidendi

The court found that the plaintiff was not precluded from applying for summary judgment, as it had not taken any procedural steps beyond filing and subsequently withdrawing an exception, which did not bar the application. The defendant failed to establish a bona fide defence or a valid counter-claim. Her assertion of a duty of care owed by the plaintiff was unsupported by facts, and the contractual documents excluded delictual claims. The plaintiff was not a party to the home loan agreement between the defendant and the lender, and the defendant retained ownership of the property despite its seizure under POCA, remaining liable for her contractual obligations. The defendant's delictual...

Court Disposition

Summary judgment granted in favour of the plaintiff.

Orders

  • Payment of the sum of R1 411 298.95.
  • Interest on the aforesaid sum at the rate of 7.9% per annum, compounded monthly in arrears from 3 November 2022 to date of payment.