Gencode Software Consulting CC v PB Mthembi Medical Laboratory (Pty) Ltd and Another (2023/056319) [2025] ZAGPJHC 273 (13 March 2025)

Gencode Software Consulting CC v PB Mthembi Medical Laboratory (Pty) Ltd and Another (2023/056319) [2025] ZAGPJHC 273 (13 March 2025)

The plaintiff's application for summary judgment is incompetent as it seeks judgment on a cause of action not pleaded or verified, namely the first acknowledgement of debt, while its pleaded case is based on the second acknowledgement of debt. The plaintiff has failed to address the defendants' amended plea, which raises triable issues regarding the validity of the second acknowledgement of debt and the quantum of the indebtedness. The affidavit in support of summary judgment does not comply with rule 32(2)(b), as it does not explain why the defence does not raise any issue for trial. The plaintiff cannot rely on admissions in the plea to obtain partial summary judgment while abandoning...

Citation
[2025] ZAGPJHC 273
Parties
Plaintiff: Gencode Software Consulting CC; Defendant: PB Mthembi Medical Laboratory (Pty) Ltd; Defendant: Phillip Mthembi
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
13 March 2025
Case Number
2023/056319
Procedural Posture
Summary Judgment Application / Application for Summary Judgment Following Amended Plea and Supplementary Affidavit
Outcome
Summary judgment application dismissed; defendants granted leave to defend; costs to be costs in the cause.
Judges
De Oliveira
Legal Topics
Summary Judgment, Acknowledgement of Debt, Suretyship, Non Variation Clause, Quantum of Indebtedness
Civil Procedure Commercial and Corporate Summary Judgment Acknowledgement of Debt Suretyship Non Variation Clause Quantum of Indebtedness

Case Brief

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Parties

Gencode Software Consulting CC

Plaintiff

PB Mthembi Medical Laboratory (Pty) Ltd

Defendant

Phillip Mthembi

Defendant

Procedural Posture

Summary Judgment Application / Application for Summary Judgment Following Amended Plea and Supplementary Affidavit

Legal Issues

  1. 1 Whether the plaintiff is entitled to summary judgment on the basis of admitted indebtedness in the defendants' amended plea.
  2. 2 Whether the defendants' amended plea raises triable issues precluding summary judgment.
  3. 3 Whether the second defendant is liable as surety under the second acknowledgement of debt.

Ratio Decidendi

The plaintiff's application for summary judgment is incompetent as it seeks judgment on a cause of action not pleaded or verified, namely the first acknowledgement of debt, while its pleaded case is based on the second acknowledgement of debt. The plaintiff has failed to address the defendants' amended plea, which raises triable issues regarding the validity of the second acknowledgement of debt and the quantum of the indebtedness. The affidavit in support of summary judgment does not comply with rule 32(2)(b), as it does not explain why the defence does not raise any issue for trial. The plaintiff cannot rely on admissions in the plea to obtain partial summary judgment while abandoning...

Court Disposition

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

Orders

  • The summary judgment application is dismissed.
  • The defendants are granted leave to defend the plaintiff's action.