Freysinnet (Pty) Ltd v Super Kwik Slabs CC and Another (24719/2017) [2019] ZAGPPHC 124 (18 April 2019)

Freysinnet (Pty) Ltd v Super Kwik Slabs CC and Another (24719/2017) [2019] ZAGPPHC 124 (18 April 2019)

The court found that the respondents failed to provide sufficient particulars or evidence to support their alleged mistake regarding the acknowledgment of debt or the existence and quantum of the counterclaim. The affidavit opposing summary judgment was devoid of material facts and did not comply with Rule 32(3)(b) of the Uniform Rules of Court. The respondents' payments after the institution of action and the lengthy delay before filing their affidavit further undermined the bona fides of their defence. The counterclaim was not substantiated, and no defence was offered for the difference between the applicant's claim and the counterclaim. Accordingly, summary judgment was granted in...

Citation
[2019] ZAGPPHC 124
Parties
Applicant: Freysinnet (Pty) Ltd; Respondent: Super Kwik Slabs CC; Respondent: Gerhardus Wilken
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
18 April 2019
Case Number
24719/2017
Procedural Posture
Summary Judgment Application / Application for Summary Judgment After Notice of Intention to Defend and Partial Payment
Outcome
Summary judgment granted in favour of the applicant.
Judges
A Millar
Legal Topics
Summary Judgment, Acknowledgment of Debt, Suretyship, Counterclaim, Rule 32, Mistake in Contract
Civil Procedure Commercial and Corporate Summary Judgment Acknowledgment of Debt Suretyship Counterclaim Rule 32 Mistake in Contract

Case Brief

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Parties

Freysinnet (Pty) Ltd

Applicant

Super Kwik Slabs CC

Respondent

Gerhardus Wilken

Respondent

Procedural Posture

Summary Judgment Application / Application for Summary Judgment After Notice of Intention to Defend and Partial Payment

Legal Issues

  1. 1 Whether the respondents have disclosed a bona fide defence to the applicant's claim for summary judgment.
  2. 2 Whether the counterclaim for damages constitutes a valid defence to summary judgment.
  3. 3 Whether the affidavit opposing summary judgment complies with Rule 32(3)(b) of the Uniform Rules of Court.

Ratio Decidendi

The court found that the respondents failed to provide sufficient particulars or evidence to support their alleged mistake regarding the acknowledgment of debt or the existence and quantum of the counterclaim. The affidavit opposing summary judgment was devoid of material facts and did not comply with Rule 32(3)(b) of the Uniform Rules of Court. The respondents' payments after the institution of action and the lengthy delay before filing their affidavit further undermined the bona fides of their defence. The counterclaim was not substantiated, and no defence was offered for the difference between the applicant's claim and the counterclaim. Accordingly, summary judgment was granted in...

Court Disposition

Summary judgment granted in favour of the applicant.

Orders

  • The First and Second Respondents are ordered, jointly and severally, the one paying the other to be absolved, to pay to the Applicant the sum of R796,327.78.
  • The First and Second Respondents are ordered to pay interest on the sum of R796,327.78 at the rate of 10.5% per annum from 4 May 2017 to date of payment.