Nedbank Limited v Botha N.O and Others (1210/2018) [2019] ZAECGHC 118 (12 November 2019)

Nedbank Limited v Botha N.O and Others (1210/2018) [2019] ZAECGHC 118 (12 November 2019)

The court held that the allegations in paragraph 7.4 of the fourth defendant's plea are not irrelevant, as they explain the circumstances under which Ina Retief signed the suretyship document and are material to the authority of Mr Botha. These allegations do not constitute a separate defence but form part of the fourth defendant's answer to the plaintiff's claim. The exception taken by the plaintiff is therefore dismissed, as striking out paragraph 7.4 would prejudice the fourth defendant's ability to lead evidence on the circumstances of the signature and the authority issue. Costs follow the result.

Citation
[2019] ZAECGHC 118
Parties
Plaintiff: Nedbank Limited; Defendant: Rudolf Albert Botha N.O.; Defendant: Hester Johanna Elizabeth Botha N.O.; Defendant: Gerber Botha and Gowar Trustees (Pty) Ltd; Defendant: Botha en Retief Voerkale CC; Defendant: Rudolf Albert Botha; Defendant: Hester Johanna Elizabeth Botha
Court
Eastern Cape High Court, Grahamstown
Jurisdiction
South Africa
Judgment Date
12 November 2019
Case Number
1210/2018
Procedural Posture
Civil Application / Exception to Plea
Outcome
Plaintiff's exception to the fourth defendant's plea is dismissed with costs.
Judges
G H Bloem
Legal Topics
Close Corporations Act, Suretyship, Pleading Exception, Authority of Agent
Civil Procedure Commercial and Corporate Close Corporations Act Suretyship Pleading Exception Authority of Agent

Case Brief

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Parties

Nedbank Limited

Plaintiff

Rudolf Albert Botha N.O.

Defendant

Hester Johanna Elizabeth Botha N.O.

Defendant

Gerber Botha and Gowar Trustees (Pty) Ltd

Defendant

Botha en Retief Voerkale CC

Defendant

Rudolf Albert Botha

Defendant

Hester Johanna Elizabeth Botha

Defendant

Procedural Posture

Civil Application / Exception to Plea

Legal Issues

  1. 1 Whether paragraph 7.4 of the fourth defendant's plea discloses a defence.
  2. 2 Whether the circumstances under which Ina Retief signed the suretyship document are relevant to the authority of Mr Botha.
  3. 3 Whether an exception can be taken to part of a plea that does not amount to a separate defence.

Ratio Decidendi

The court held that the allegations in paragraph 7.4 of the fourth defendant's plea are not irrelevant, as they explain the circumstances under which Ina Retief signed the suretyship document and are material to the authority of Mr Botha. These allegations do not constitute a separate defence but form part of the fourth defendant's answer to the plaintiff's claim. The exception taken by the plaintiff is therefore dismissed, as striking out paragraph 7.4 would prejudice the fourth defendant's ability to lead evidence on the circumstances of the signature and the authority issue. Costs follow the result.

Court Disposition

Plaintiff's exception to the fourth defendant's plea is dismissed with costs.

Orders

  • The plaintiff's exception to the fourth defendant's plea is dismissed.
  • The plaintiff is ordered to pay the costs of the exception.