Mashoro Phasha and Other v Kgosiltsile Aaron Mosweu and Others (020142/2022) [2023] ZAGPJHC 654 (7 June 2023)

Mashoro Phasha and Other v Kgosiltsile Aaron Mosweu and Others (020142/2022) [2023] ZAGPJHC 654 (7 June 2023)

The court found that the plaintiffs failed to disclose a cause of action against ABSA Bank. Clause 12.1 of the mortgage loan agreement expressly states that any valuation by ABSA is solely for its own security assessment and is not intended as an indication of the property's market value. The plaintiffs did not identify any express contractual obligation requiring ABSA to provide a market-related valuation, nor could such an implied or tacit term be read into the agreement as it would directly contradict the express provisions. The reference to an estimate in the quotation does not amount to a valuation for market or insurance purposes. The relief sought by the plaintiffs is not competent...

Citation
[2023] ZAGPJHC 654
Parties
Plaintiff: Mashoro Phasha; Plaintiff: Mbali Dhlamini; Defendant: Kgosiltsile Aaron Mosweu; Defendant: Boitumelo Victoria Mosweu; Defendant: ABSA Bank South Africa Ltd
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
7 June 2023
Case Number
020142/2022
Procedural Posture
Civil Procedure / Exception to Particulars of Claim
Outcome
Exception upheld; claim against ABSA set aside with costs; plaintiffs granted 15 days to amend claim 2, failing which action against ABSA deemed dismissed.
Judges
I Opperman
Legal Topics
Exception to Particulars of Claim, Mortgage Loan Agreement, Implied Terms, Contractual Interpretation
Civil Procedure Commercial and Corporate Exception to Particulars of Claim Mortgage Loan Agreement Implied Terms Contractual Interpretation

Case Brief

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Parties

Mashoro Phasha

Plaintiff

Mbali Dhlamini

Plaintiff

Kgosiltsile Aaron Mosweu

Defendant

Boitumelo Victoria Mosweu

Defendant

ABSA Bank South Africa Ltd

Defendant

Procedural Posture

Civil Procedure / Exception to Particulars of Claim

Legal Issues

  1. 1 Does the plaintiffs' particulars of claim disclose a cause of action against ABSA Bank?
  2. 2 Is there an express or implied contractual obligation on ABSA to provide a market-related valuation of the property?
  3. 3 Can the plaintiffs rely on an estimate in the quotation as a valuation for insurance or market value purposes?

Ratio Decidendi

The court found that the plaintiffs failed to disclose a cause of action against ABSA Bank. Clause 12.1 of the mortgage loan agreement expressly states that any valuation by ABSA is solely for its own security assessment and is not intended as an indication of the property's market value. The plaintiffs did not identify any express contractual obligation requiring ABSA to provide a market-related valuation, nor could such an implied or tacit term be read into the agreement as it would directly contradict the express provisions. The reference to an estimate in the quotation does not amount to a valuation for market or insurance purposes. The relief sought by the plaintiffs is not competent...

Court Disposition

Exception upheld; claim against ABSA set aside with costs; plaintiffs granted 15 days to amend claim 2, failing which action against ABSA deemed dismissed.

Orders

  • The Third Defendant's (ABSA's) exception to the plaintiffs' particulars of claim is upheld with costs, payable jointly and severally.
  • The plaintiffs' claim (claim 2) against ABSA is set aside; plaintiffs are afforded 15 days to amend claim 2, failing which their action against ABSA shall be deemed dismissed and they shall pay the costs of the action against ABSA jointly and severally.