Nedbank Limited v Botes (3225/2020) [2021] ZAFSHC 95 (23 March 2021)

Nedbank Limited v Botes (3225/2020) [2021] ZAFSHC 95 (23 March 2021)

The court found that the defendant has set out facts which, if proven at trial, would constitute a complete defence to the plaintiff's claim. The alleged subsequent agreement between the parties, which purportedly novated the original suretyship and limited the defendant's liability, is not necessarily precluded by the non-variation clause in the circumstances of this case. The evidence before the court indicates that the matter is trialable and the defence is bona fide. Accordingly, summary judgment is not appropriate, and the defendant is granted leave to defend the action.

Citation
[2021] ZAFSHC 95
Parties
Plaintiff: Nedbank Limited; Defendant: Louis Frederik Botes
Court
Free State High Court, Bloemfontein
Jurisdiction
South Africa
Judgment Date
23 March 2021
Case Number
3225/2020
Procedural Posture
Summary Judgment Application / Application for Summary Judgment Under Rule 32
Outcome
Application for summary judgment dismissed; defendant granted leave to defend; costs reserved for trial court.
Judges
Opperman, J
Legal Topics
Summary Judgment, Suretyship, Novation, Non Variation Clause, Contractual Defences
Civil Procedure Commercial and Corporate Summary Judgment Suretyship Novation Non Variation Clause Contractual Defences

Case Brief

Summary, issues, holding and outcome

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Parties

Nedbank Limited

Plaintiff

Louis Frederik Botes

Defendant

Procedural Posture

Summary Judgment Application / Application for Summary Judgment Under Rule 32

Legal Issues

  1. 1 Whether the defendant has established a bona fide and trialable defence to the plaintiff's claim for summary judgment.
  2. 2 Whether an oral or tacit novation of the suretyship agreement is precluded by the non-variation (Shifren) clause.
  3. 3 Whether the alleged subsequent agreement between the parties extinguished the original suretyship obligation.

Ratio Decidendi

The court found that the defendant has set out facts which, if proven at trial, would constitute a complete defence to the plaintiff's claim. The alleged subsequent agreement between the parties, which purportedly novated the original suretyship and limited the defendant's liability, is not necessarily precluded by the non-variation clause in the circumstances of this case. The evidence before the court indicates that the matter is trialable and the defence is bona fide. Accordingly, summary judgment is not appropriate, and the defendant is granted leave to defend the action.

Court Disposition

Application for summary judgment dismissed; defendant granted leave to defend; costs reserved for trial court.

Orders

  • The application for summary judgment is dismissed.
  • The defendant is granted leave to defend the plaintiff’s action.