Macsteel Service Centres SA (Pty) Ltd v Profin Trading 35 CC and Others (96119/2015) [2016] ZAGPPHC 446 (17 June 2016)

Macsteel Service Centres SA (Pty) Ltd v Profin Trading 35 CC and Others (96119/2015) [2016] ZAGPPHC 446 (17 June 2016)

The court held that the defect in the commissioning of the third respondent's opposing affidavit was a technical error made by the commissioner of oaths and did not warrant the exclusion of the affidavit. The absence of a Rule 30 notice and the fact that the third respondent identified himself as male in the...

Source-derived case information.

Citation
[2016] ZAGPPHC 446
Parties
Applicant: Macsteel Service Centres SA (Pty) Ltd; Respondent: Profin Trading 35 CC t/a Viking Fasteners and Industrial Supplies; Respondent: Francois du Plessis; Respondent: Malcolm Best
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
17 June 2016
Case Number
96119/2015
Procedural Posture
Summary Judgment Application / Opposed Summary Judgment Application; Leave to Defend Sought by Third Respondent
Outcome
Leave to defend is granted to the third respondent, with costs in the cause.
Judges
Ranchod
Legal Topics
Summary Judgment, Suretyship, Affidavit Defects, Leave to Defend
Civil Procedure Summary Judgment Suretyship Affidavit Defects Leave to Defend

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Parties

Macsteel Service Centres SA (Pty) Ltd

Applicant

Profin Trading 35 CC t/a Viking Fasteners and Industrial Supplies

Respondent

Francois du Plessis

Respondent

Malcolm Best

Respondent

Procedural Posture

Summary Judgment Application / Opposed Summary Judgment Application; Leave to Defend Sought by Third Respondent

Legal Issues

  1. 1 Whether the third respondent should be granted leave to defend the summary judgment application.
  2. 2 Whether the defect in the commissioning of the opposing affidavit renders it inadmissible.
  3. 3 Whether the supplementary affidavit by the commissioner of oaths is admissible.

Ratio Decidendi

The court held that the defect in the commissioning of the third respondent's opposing affidavit was a technical error made by the commissioner of oaths and did not warrant the exclusion of the affidavit. The absence of a Rule 30 notice and the fact that the third respondent identified himself as male in the affidavit were material. The court distinguished the present case from ABSA Bank Ltd v Botha and Others, noting that a strict technical approach should not be adopted against a defendant seeking to defend. The supplementary affidavit explaining the error was admitted, consistent with superior court practice. The third respondent, as surety, had not been involved in the first...

Court Disposition

Leave to defend is granted to the third respondent, with costs in the cause.

Orders

  • The third respondent is granted leave to defend.
  • Costs are awarded in the cause.