Nedbank Limited v Marx (42653/2021) [2024] ZAGPPHC 619 (19 June 2024)

Nedbank Limited v Marx (42653/2021) [2024] ZAGPPHC 619 (19 June 2024)

The court held that the affidavit supporting the summary judgment application was commissioned virtually, contrary to Regulation 3(1), and no evidence was presented to justify condonation of this non-compliance. As a result, the affidavit was not accepted and the application was not properly before the court. On the merits, the respondent's defence based on misrepresentation and unilateral mistake was found to be bona fide and potentially valid in law, given the reasonable confusion surrounding the Covid-19 loan guarantee scheme and the applicant's failure to clarify the legal position. The application for summary judgment was dismissed on the basis of the defective affidavit, with costs...

Citation
[2024] ZAGPPHC 619
Parties
Applicant: Nedbank Limited; Respondent: Ivan Marx
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
19 June 2024
Case Number
42653/2021
Procedural Posture
Summary Judgment Application / Opposed Summary Judgment Application
Outcome
Application for summary judgment dismissed; costs reserved for the main action.
Judges
K Strydom
Legal Topics
Summary Judgment, Covid 19 Loan Scheme, Suretyship, Misrepresentation, Iustus Error
Civil Procedure Banking and Finance Summary Judgment Covid 19 Loan Scheme Suretyship Misrepresentation Iustus Error

Case Brief

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Parties

Nedbank Limited

Applicant

Ivan Marx

Respondent

Procedural Posture

Summary Judgment Application / Opposed Summary Judgment Application

Legal Issues

  1. 1 Whether the affidavit supporting summary judgment, commissioned virtually, complies with Regulation 3(1) and is admissible.
  2. 2 Whether the respondent's defence based on misrepresentation and unilateral mistake is bona fide and valid in law.

Ratio Decidendi

The court held that the affidavit supporting the summary judgment application was commissioned virtually, contrary to Regulation 3(1), and no evidence was presented to justify condonation of this non-compliance. As a result, the affidavit was not accepted and the application was not properly before the court. On the merits, the respondent's defence based on misrepresentation and unilateral mistake was found to be bona fide and potentially valid in law, given the reasonable confusion surrounding the Covid-19 loan guarantee scheme and the applicant's failure to clarify the legal position. The application for summary judgment was dismissed on the basis of the defective affidavit, with costs...

Court Disposition

Application for summary judgment dismissed; costs reserved for the main action.

Orders

  • The application for summary judgment is dismissed.
  • Costs of the application shall be costs in the main action.