Fintech Receivables 2 (Rf) Limited and Another v Bongaz Suppliers and Trading CC and Others (3068/2016) [2016] ZAFSHC 180 (13 October 2016)

Fintech Receivables 2 (Rf) Limited and Another v Bongaz Suppliers and Trading CC and Others (3068/2016) [2016] ZAFSHC 180 (13 October 2016)

The court found that the first applicant failed to establish locus standi, as there was no evidence linking Fintech Receivables 2 (RF) Ltd to the alleged conversion from Fintech Receivables 2 (Pty) Ltd, nor was the company a party to the relevant agreement. The particulars of claim did not comply with rule 18(6), but this non-compliance did not prejudice the respondents at this stage and was not a sufficient defence to bar the claim. The claim constituted a penalty under the Conventional Penalties Act, and the court could not exercise its discretion to reduce the penalty without further evidence, which was not permissible under rule 32(4). The respondents' assertion of cancellation of the...

Citation
[2016] ZAFSHC 180
Parties
Applicant: Fintech Receivables 2 (RF) Limited; Applicant: Fintech Underwriting (Pty) Limited; Respondent: Bongaz Suppliers and Trading CC; Respondent: Sibongilekatrina Mthethwa; Respondent: Israel Ngazans Mthethwa
Court
Free State High Court, Bloemfontein
Jurisdiction
South Africa
Judgment Date
13 October 2016
Case Number
3068/2016
Procedural Posture
Summary Judgment Application / Application for Summary Judgment; Opposed Hearing
Outcome
Summary judgment application dismissed; respondents granted leave to defend; costs to be costs in the cause.
Judges
Molitsoane
Legal Topics
Summary Judgment, Locus Standi, Conventional Penalties Act, Contract Enforcement, Rule 18 6 Non Compliance
Civil Procedure Commercial and Corporate Summary Judgment Locus Standi Conventional Penalties Act Contract Enforcement Rule 18 6 Non Compliance

Case Brief

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Parties

Fintech Receivables 2 (RF) Limited

Applicant

Fintech Underwriting (Pty) Limited

Applicant

Bongaz Suppliers and Trading CC

Respondent

Sibongilekatrina Mthethwa

Respondent

Israel Ngazans Mthethwa

Respondent

Procedural Posture

Summary Judgment Application / Application for Summary Judgment; Opposed Hearing

Legal Issues

  1. 1 Whether the first applicant has locus standi to bring the summary judgment application.
  2. 2 Whether the particulars of claim comply with rule 18(6) of the Uniform Rules of Court.
  3. 3 Whether the claim constitutes a penalty under the Conventional Penalties Act 15 of 1962 and if so, whether summary judgment can be granted.

Ratio Decidendi

The court found that the first applicant failed to establish locus standi, as there was no evidence linking Fintech Receivables 2 (RF) Ltd to the alleged conversion from Fintech Receivables 2 (Pty) Ltd, nor was the company a party to the relevant agreement. The particulars of claim did not comply with rule 18(6), but this non-compliance did not prejudice the respondents at this stage and was not a sufficient defence to bar the claim. The claim constituted a penalty under the Conventional Penalties Act, and the court could not exercise its discretion to reduce the penalty without further evidence, which was not permissible under rule 32(4). The respondents' assertion of cancellation of the...

Court Disposition

Summary judgment application dismissed; respondents granted leave to defend; costs to be costs in the cause.

Orders

  • The application by the first applicant for summary judgment against the three respondents is dismissed.
  • The respondents are granted leave to defend.