Malherbe v Absa Bank Ltd (A202/2013) [2014] ZAFSHC 200 (30 October 2014)

Malherbe v Absa Bank Ltd (A202/2013) [2014] ZAFSHC 200 (30 October 2014)

The court held that the appellant's answering affidavit, although not perfectly clear, contained sufficient factual averments regarding the alleged pactum de non petendo to constitute a bona fide defence to the respondent's claims. The court a quo erred by considering probabilities and rejecting the appellant's version as false, which is impermissible in summary judgment proceedings. Applying the correct test, the court found that the appellant's defence, if true, would defeat the respondent's claims at this stage. Accordingly, summary judgment was refused and the appeal upheld.

Citation
[2014] ZAFSHC 200
Parties
Appellant: Roelof Charles Malherbe; Respondent: Absa Bank Ltd
Court
Free State High Court, Bloemfontein
Jurisdiction
South Africa
Judgment Date
30 October 2014
Case Number
A202/2013
Procedural Posture
Civil Appeal / Appeal Against Summary Judgment
Outcome
Appeal upheld; summary judgment refused.
Judges
Van der Merwe, Van Zyl, Murray
Legal Topics
Summary Judgment, Pactum De Non Petendo, Loan Agreement, Cheque Account Liability
Civil Procedure Banking and Finance Summary Judgment Pactum De Non Petendo Loan Agreement Cheque Account Liability

Case Brief

Summary, issues, holding and outcome

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Parties

Roelof Charles Malherbe

Appellant

Absa Bank Ltd

Respondent

Procedural Posture

Civil Appeal / Appeal Against Summary Judgment

Legal Issues

  1. 1 Whether the appellant disclosed a bona fide defence to the respondent's claims in the answering affidavit.
  2. 2 Whether the summary judgment was properly granted in light of the alleged pactum de non petendo.
  3. 3 Whether the court a quo misdirected itself by considering probabilities in summary judgment proceedings.

Ratio Decidendi

The court held that the appellant's answering affidavit, although not perfectly clear, contained sufficient factual averments regarding the alleged pactum de non petendo to constitute a bona fide defence to the respondent's claims. The court a quo erred by considering probabilities and rejecting the appellant's version as false, which is impermissible in summary judgment proceedings. Applying the correct test, the court found that the appellant's defence, if true, would defeat the respondent's claims at this stage. Accordingly, summary judgment was refused and the appeal upheld.

Court Disposition

Appeal upheld; summary judgment refused.

Orders

  • The appeal is upheld with costs.
  • The order of the court a quo is set aside and replaced with: 'Summary judgment is refused. Costs of the application for summary judgment are costs in the cause.'