First Rand Bank Limited t/a First National Bank v V and N Agencies CC and Another (39869/21) [2025] ZAGPPHC 219 (10 March 2025)
The court found that the defendants' denial of signing the acknowledgment of liability agreement was sufficient to raise a justiciable issue. The plaintiff, as the party alleging the existence of the contract, bears the burden of proof. Since the defendants' denial was not a mere bare denial but a direct challenge...
Source-derived case information.
- Citation
- [2025] ZAGPPHC 219
- Parties
- Plaintiff: First Rand Bank Limited t/a First National Bank; Defendant: V & N Agencies CC; Defendant: Mukesh Narsing Thacor
- Court
- North Gauteng High Court, Pretoria
- Jurisdiction
- South Africa
- Case Number
- 39869/21
- Procedural Posture
- Summary Judgment Application / Application for Summary Judgment
- Outcome
- Application for summary judgment dismissed with costs on scale B.
- Judges
- E van der Schyff
- Legal Topics
- Summary Judgment, Acknowledgment of Liability, Burden of Proof, Contract Existence
Source-derived case record
Summary, issues, holding and outcome
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Parties
First Rand Bank Limited t/a First National Bank
Plaintiff
V & N Agencies CC
Defendant
Mukesh Narsing Thacor
Defendant
Procedural Posture
Summary Judgment Application / Application for Summary Judgment
Legal Issues
- 1 Whether the plaintiff has established the existence of a written acknowledgment of liability agreement signed by the defendants.
- 2 Whether the defendants' denial of signing the acknowledgment of liability raises a triable issue sufficient to avert summary judgment.
Ratio Decidendi
The court found that the defendants' denial of signing the acknowledgment of liability agreement was sufficient to raise a justiciable issue. The plaintiff, as the party alleging the existence of the contract, bears the burden of proof. Since the defendants' denial was not a mere bare denial but a direct challenge to the existence of the agreement, summary judgment could not be granted. The matter must proceed to trial for proper determination of the disputed facts.
Court Disposition
Application for summary judgment dismissed with costs on scale B.
Orders
- The application for summary judgment is dismissed with costs on scale B.
Full Case Text
Judgment text and source record
31 paragraphs
REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
CASE NO.: 39869/21
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED: NO
Date: 10 March 2025
E van der Schyff
In the matter between:
FIRST RAND BANK LIMITED t/a FIRST NATIONAL BANK
Plaintiff
and
V & N AGENCIES CC
First Defendant
MUKESH NARSING THACOR
Second Defendant
JUDGMENT
Van der Schyff J
Introduction
[1] This is an application for summary judgment. The plaintiff issued a simple summons. The cause of action is a written acknowledgment of liability executed by the first and second defendants on 21 June 2021. The defendants filed a notice of intention to defend, whereafter the plaintiff filed a declaration. The plaintiff’s case is based on the written acknowledgment of liability.
[2] The defendants deny concluding and signing an acknowledgment of liability agreement. They acknowledge that a credit facility was afforded to them by the plaintiff and claim that the plaintiff had not assessed the first defendant’s financial situation and affordability prior to affording the first defendant a credit facility.
[3] Counsel for the plaintiff submitted that the court should disregard what it coined a bare denial. If regard is had to the facta probanda contained in the summons, it is difficult to grasp how the defendants should have phrased their plea other than denying that they signed any acknowledgment of liability.
[4] It is trite that the onus of proving the existence of a contract, the acknowledgment of liability agreement, rests on the person who alleges that the contract exists.[1] By denying that the acknowledgment of liability agreement was concluded or signed by the second defendant, the defendants raise a justiciable issue and avert summary judgment being granted against it.
ORDER
In the result, the following order is granted:
1. The application for summary judgment is dismissed with costs on scale B.
Judge of the High Court
Delivered: This judgment is handed down electronically by uploading it to the electronic file of this matter on CaseLines.
For the plaintiff: Adv. R van Dyk Instructed by: Schȕler Heerschop Pienaar Xaba Inc. For the defendants: Adv. K. Randall Instructed by: ZAF Khan Date of the hearing: 4 March 2025 Date of judgment: 10 March 2025
[1][1] Union Spinning Mills (Pty) Ltd v Paltex Dye House (Pty) Ltd and Another 2002 (4) SA 408 (SCA) at para [6].