Minnaar and Another v Nedbank Limited (9512/2010) [2010] ZAWCHC 335 (21 October 2010)

Minnaar and Another v Nedbank Limited (9512/2010) [2010] ZAWCHC 335 (21 October 2010)

The court found that the defences of set off and contravention of section 38(1) of the Companies Act were not bona fide or triable issues. The applicants failed to establish a legal basis for set off, as the alleged reciprocal debts were not proven. The contravention of section 38(1) was not supported by any averment that the company was not solvent or that the board was not satisfied, as required by section 38(2A). However, the defence of lis pendens could not be rejected outright, as there was a possibility that the same agreement was the subject of pending proceedings in the George Magistrate's Court. Therefore, leave to appeal was granted only in respect of the defence of lis pendens...

Citation
[2010] ZAWCHC 335
Parties
Applicant: Roelof Johannes Minnaar; Applicant: Alan George Nelson; Respondent: Nedbank Limited
Court
Western Cape High Court, Cape Town
Jurisdiction
South Africa
Judgment Date
21 October 2010
Case Number
9512/2010
Procedural Posture
Leave to Appeal / Application for Leave to Appeal Against Summary Judgment
Outcome
Leave to appeal is granted in respect of the defence of lis pendens to the Full Bench of this Division. Costs to stand over.
Judges
Davis
Legal Topics
Summary Judgment, Set Off, Contravention of Companies Act, Lis Pendens
Civil Procedure Commercial and Corporate Summary Judgment Set Off Contravention of Companies Act Lis Pendens

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 3 Authorities cited 2 Party arguments 2
Sign in to unlock

Parties

Roelof Johannes Minnaar

Applicant

Alan George Nelson

Applicant

Nedbank Limited

Respondent

Procedural Posture

Leave to Appeal / Application for Leave to Appeal Against Summary Judgment

Legal Issues

  1. 1 What facts must a defendant disclose in an opposing affidavit to resist summary judgment.
  2. 2 Whether the defences of set off, contravention of section 38(1) of the Companies Act, and lis pendens are bona fide and triable issues.

Ratio Decidendi

The court found that the defences of set off and contravention of section 38(1) of the Companies Act were not bona fide or triable issues. The applicants failed to establish a legal basis for set off, as the alleged reciprocal debts were not proven. The contravention of section 38(1) was not supported by any averment that the company was not solvent or that the board was not satisfied, as required by section 38(2A). However, the defence of lis pendens could not be rejected outright, as there was a possibility that the same agreement was the subject of pending proceedings in the George Magistrate's Court. Therefore, leave to appeal was granted only in respect of the defence of lis pendens...

Court Disposition

Leave to appeal is granted in respect of the defence of lis pendens to the Full Bench of this Division. Costs to stand over.

Orders

  • Leave to appeal is granted to the Full Bench of this Division in respect of the defence of lis pendens.
  • Costs to stand over.