Kukard N.O and Others v ABSA Bank Limited and Others (115284/2023) [2024] ZAGPPHC 1089 (23 October 2024)

Kukard N.O and Others v ABSA Bank Limited and Others (115284/2023) [2024] ZAGPPHC 1089 (23 October 2024)

The court found that the plaintiffs' particulars of claim failed to establish any causal link between the loans granted by Access Bank and Standard Bank and the alleged theft by Mr. Pillay. The pleadings did not allege that Mr. Pillay stole the loaned funds, nor did they set out how the banks' conduct resulted in the claimed damages. The oral agreements and loan agreements were unrelated, and the calculation of damages was not supported by the pleaded facts. The claims for cancellation of mortgage bonds lacked a pleaded right of cancellation and did not allege return or restoration of loan amounts. Consequently, the exceptions raised by Access Bank and Standard Bank were upheld, and the...

Citation
[2024] ZAGPPHC 1089
Parties
Applicant: Colleen Michelle Kukard N.O.; Applicant: Hillbrow Inn (Pty) Ltd; Applicant: Joubert Park Maxime Hotel (Pty) Ltd; Applicant: Maxime Hotel (Pty) Ltd; Applicant: New World Hotels (Pty) Ltd; Applicant: Jeshco (Pty) Ltd; Applicant: Dream Weaver Trading 139 (Pty) Ltd; Applicant: Warwick Paul van den Berg N.O.; Applicant: Darryl Hurwitz N.O.; Respondent: ABSA Bank Limited; Respondent: Access Bank of South Africa Limited; Respondent: Standard Bank of South Africa Limited
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
23 October 2024
Case Number
115284/2023
Procedural Posture
Interlocutory Application / Exception and Early Discovery Applications Prior to Close of Pleadings
Outcome
Exceptions upheld; plaintiffs granted leave to amend particulars of claim; application for early discovery dismissed; costs awarded against plaintiffs.
Judges
N.P. Mali
Legal Topics
Exception to Pleadings, Early Discovery, Breach of Contract, Special Damages, Mortgage Bond Cancellation
Civil Procedure Banking and Finance Exception to Pleadings Early Discovery Breach of Contract Special Damages Mortgage Bond Cancellation

Case Brief

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Parties

Colleen Michelle Kukard N.O.

Applicant

Hillbrow Inn (Pty) Ltd

Applicant

Joubert Park Maxime Hotel (Pty) Ltd

Applicant

Maxime Hotel (Pty) Ltd

Applicant

New World Hotels (Pty) Ltd

Applicant

Jeshco (Pty) Ltd

Applicant

Dream Weaver Trading 139 (Pty) Ltd

Applicant

Warwick Paul van den Berg N.O.

Applicant

Darryl Hurwitz N.O.

Applicant

ABSA Bank Limited

Respondent

Access Bank of South Africa Limited

Respondent

Standard Bank of South Africa Limited

Respondent

Procedural Posture

Interlocutory Application / Exception and Early Discovery Applications Prior to Close of Pleadings

Legal Issues

  1. 1 Whether the plaintiffs' particulars of claim disclose a cause of action against Access Bank and Standard Bank.
  2. 2 Whether the particulars of claim are vague and embarrassing or lack necessary averments.
  3. 3 Whether the plaintiffs are entitled to early discovery under Rule 35(1) of the Uniform Rules of Court.

Ratio Decidendi

The court found that the plaintiffs' particulars of claim failed to establish any causal link between the loans granted by Access Bank and Standard Bank and the alleged theft by Mr. Pillay. The pleadings did not allege that Mr. Pillay stole the loaned funds, nor did they set out how the banks' conduct resulted in the claimed damages. The oral agreements and loan agreements were unrelated, and the calculation of damages was not supported by the pleaded facts. The claims for cancellation of mortgage bonds lacked a pleaded right of cancellation and did not allege return or restoration of loan amounts. Consequently, the exceptions raised by Access Bank and Standard Bank were upheld, and the...

Court Disposition

Exceptions upheld; plaintiffs granted leave to amend particulars of claim; application for early discovery dismissed; costs awarded against plaintiffs.

Orders

  • The plaintiffs' postponement application is dismissed.
  • The third and fourth defendants' exceptions are upheld.