Fidelity Corporate Services (Pty) Ltd v Roger David Property (Pty) Ltd (A3020/19) [2019] ZAGPJHC 294 (29 August 2019)

Fidelity Corporate Services (Pty) Ltd v Roger David Property (Pty) Ltd (A3020/19) [2019] ZAGPJHC 294 (29 August 2019)

The court held that the appellant's affidavit resisting summary judgment expressly incorporated its plea by reference, confirming the correctness of the facts pleaded and setting out the defence under oath. This incorporation was sufficient to satisfy the requirements of Rule 14(3)(b), as established in Kruger and related authorities. The Magistrate erred in refusing to consider the plea and in adopting an unduly narrow interpretation of the rule. The appellant's defence, based on the contention that the respondent had already received a refund from the local authority and that the respondent breached the agreement by failing to take steps to obtain the refund directly, raised triable...

Citation
[2019] ZAGPJHC 294
Parties
Appellant: Fidelity Corporate Services (Pty) Ltd; Respondent: Roger David Property (Pty) Ltd
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
29 August 2019
Case Number
A3020/19
Procedural Posture
Civil Appeal / Appeal Against Summary Judgment Granted by Magistrate's Court
Outcome
Appeal upheld; summary judgment set aside.
Judges
Opperman, H.E Mkhawane
Legal Topics
Summary Judgment, Incorporation by Reference, Contractual Interpretation, Bona Fide Defence
Civil Procedure Commercial and Corporate Summary Judgment Incorporation by Reference Contractual Interpretation Bona Fide Defence

Case Brief

Summary, issues, holding and outcome

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Parties

Fidelity Corporate Services (Pty) Ltd

Appellant

Roger David Property (Pty) Ltd

Respondent

Procedural Posture

Civil Appeal / Appeal Against Summary Judgment Granted by Magistrate's Court

Legal Issues

  1. 1 Whether the appellant's affidavit resisting summary judgment sufficiently incorporated its plea by reference to constitute a bona fide defence.
  2. 2 Whether the Magistrate erred in refusing to consider the contents of the plea when determining the existence of a defence.
  3. 3 Whether the appellant has disclosed a triable issue warranting refusal of summary judgment.

Ratio Decidendi

The court held that the appellant's affidavit resisting summary judgment expressly incorporated its plea by reference, confirming the correctness of the facts pleaded and setting out the defence under oath. This incorporation was sufficient to satisfy the requirements of Rule 14(3)(b), as established in Kruger and related authorities. The Magistrate erred in refusing to consider the plea and in adopting an unduly narrow interpretation of the rule. The appellant's defence, based on the contention that the respondent had already received a refund from the local authority and that the respondent breached the agreement by failing to take steps to obtain the refund directly, raised triable...

Court Disposition

Appeal upheld; summary judgment set aside.

Orders

  • The appeal is upheld with costs.
  • The order granted on 18 October 2018 is set aside and replaced with: 'The application for summary judgment is dismissed and costs are in the cause.'