Multiserv (Pty) Limited v Pather (10555/2008) [2009] ZAKZDHC 1 (16 March 2009)

Multiserv (Pty) Limited v Pather (10555/2008) [2009] ZAKZDHC 1 (16 March 2009)

The court found that, at the time the summary judgment application was launched, the plaintiff was only aware that the defendant's defence was based on alleged misrepresentation, without any indication that the misrepresentation was fraudulent or negligent. The exclusionary clauses in the franchise agreements prevented reliance on such representations unless fraud was alleged. The defendant only characterized the misrepresentation as fraudulent or negligent in her opposing affidavit, after the summary judgment application was filed. Therefore, the plaintiff was entitled to conclude that the defendant did not have a bona fide defence prior to the delivery of the opposing affidavit. The...

Citation
[2009] ZAKZDHC 1
Parties
Plaintiff: Multiserv (Pty) Limited; Defendant: Nadine Alice Pather
Court
Kwazulu-Natal High Court, Durban
Jurisdiction
South Africa
Judgment Date
16 March 2009
Case Number
10555/2008
Procedural Posture
Summary Judgment Application / Opposed Application for Summary Judgment; Hearing and Judgment on Costs and Leave to Defend
Outcome
Summary judgment refused; defendant granted leave to defend; costs reserved for trial.
Judges
Msimang
Legal Topics
Summary Judgment, Franchise Agreement, Misrepresentation, Exclusionary Clauses, Costs Orders
Civil Procedure Commercial and Corporate Summary Judgment Franchise Agreement Misrepresentation Exclusionary Clauses Costs Orders

Case Brief

Summary, issues, holding and outcome

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Parties

Multiserv (Pty) Limited

Plaintiff

Nadine Alice Pather

Defendant

Procedural Posture

Summary Judgment Application / Opposed Application for Summary Judgment; Hearing and Judgment on Costs and Leave to Defend

Legal Issues

  1. 1 Whether the plaintiff was aware of a defence entitling the defendant to leave to defend at the time of launching the summary judgment application.
  2. 2 Whether the defendant's allegations of misrepresentation constituted a bona fide defence to the plaintiff's claims.
  3. 3 Whether a punitive costs order should be granted against the plaintiff under Rule 32(9)(a) of the Uniform Rules of Court.

Ratio Decidendi

The court found that, at the time the summary judgment application was launched, the plaintiff was only aware that the defendant's defence was based on alleged misrepresentation, without any indication that the misrepresentation was fraudulent or negligent. The exclusionary clauses in the franchise agreements prevented reliance on such representations unless fraud was alleged. The defendant only characterized the misrepresentation as fraudulent or negligent in her opposing affidavit, after the summary judgment application was filed. Therefore, the plaintiff was entitled to conclude that the defendant did not have a bona fide defence prior to the delivery of the opposing affidavit. The...

Court Disposition

Summary judgment refused; defendant granted leave to defend; costs reserved for trial.

Orders

  • Summary judgment is refused and leave is granted to the defendant to defend the action.
  • The costs of the application are reserved for consideration at the trial of the matter.