Nedbank Bpk v Pickor Thirty One Bk en Anders (6137/2009) [2010] ZAFSHC 172 (9 September 2010)

Nedbank Bpk v Pickor Thirty One Bk en Anders (6137/2009) [2010] ZAFSHC 172 (9 September 2010)

The court found that the defendants had established triable issues regarding the existence of an oral payment holiday, the premature issuance of written demands, and the possibility that enforcement of the non-variation clause (Shifren principle) could, in the circumstances, offend public policy. The court accepted, for purposes of summary judgment proceedings, the defendants' version that a six-month payment holiday was granted and that the written demands were sent during this period to an incorrect address. The court held that, given these facts and the need for oral evidence to fully ventilate the issues, summary judgment could not be granted. Leave to defend was accordingly granted...

Citation
[2010] ZAFSHC 172
Parties
Plaintiff: Nedbank Beperk; Defendant: Pickor Thirty One BK; Defendant: Christiaan Ernst Labuschagne; Defendant: DSS Beleggings BK; Defendant: Mardelou Konstruksie BK
Court
Free State High Court, Bloemfontein
Jurisdiction
South Africa
Judgment Date
9 September 2010
Case Number
6137/2009
Procedural Posture
Summary Judgment Application / First Instance; Application for Summary Judgment
Outcome
Summary judgment refused; leave to defend granted to all defendants on both claims.
Judges
Van Zyl, R
Legal Topics
Summary Judgment, Enforceability of Contracts, Shifren Principle, Public Policy Exception, Exceptio Doli Generalis, Loan Agreements
Civil Procedure Commercial and Corporate Summary Judgment Enforceability of Contracts Shifren Principle Public Policy Exception Exceptio Doli Generalis Loan Agreements

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 5 Authorities cited 12 Party arguments 2 Amounts and remedies 6
Sign in to unlock

Parties

Nedbank Beperk

Plaintiff

Pickor Thirty One BK

Defendant

Christiaan Ernst Labuschagne

Defendant

DSS Beleggings BK

Defendant

Mardelou Konstruksie BK

Defendant

Procedural Posture

Summary Judgment Application / First Instance; Application for Summary Judgment

Legal Issues

  1. 1 Whether the defendants have established a bona fide defence to the plaintiff's claims under two written loan agreements.
  2. 2 Whether the summary judgment should be granted or defendants should be granted leave to defend.
  3. 3 Whether the operation of the Shifren principle precludes the defendants' reliance on oral variations and public policy defences.

Ratio Decidendi

The court found that the defendants had established triable issues regarding the existence of an oral payment holiday, the premature issuance of written demands, and the possibility that enforcement of the non-variation clause (Shifren principle) could, in the circumstances, offend public policy. The court accepted, for purposes of summary judgment proceedings, the defendants' version that a six-month payment holiday was granted and that the written demands were sent during this period to an incorrect address. The court held that, given these facts and the need for oral evidence to fully ventilate the issues, summary judgment could not be granted. Leave to defend was accordingly granted...

Court Disposition

Summary judgment refused; leave to defend granted to all defendants on both claims.

Orders

  • Leave is granted to the defendants to defend claims 1, 2, 3, and 4.
  • The costs of the summary judgment application in respect of claims 3 and 4 are costs in the cause.