Nedbank Limited v Retyre (Pty) Ltd (5032/2021) [2022] ZAFSHC 149 (14 June 2022)

Nedbank Limited v Retyre (Pty) Ltd (5032/2021) [2022] ZAFSHC 149 (14 June 2022)

The court found that the plaintiff's attachment of Annexure 'RET6' to the founding affidavit constituted new evidence not pleaded in the particulars of claim, and was therefore inadmissible under Rule 32. The breach relied upon by the plaintiff, namely the failure to submit financial documents, was not part of the pleaded case and could not be used to support summary judgment. The calculation of the amount claimed left room for uncertainty, raising a triable issue. The defendants' arguments regarding the exercise of contractual discretion and the charging of excess fees also raised bona fide defences. Accordingly, the court held that the defences put up by the defendants were bona fide...

Citation
[2022] ZAFSHC 149
Parties
Plaintiff: Nedbank Limited; Defendant: Retyre (Pty) Ltd; Defendant: Jenders Investments (Pty) Ltd; Defendant: Eben Vincent Botha; Defendant: Helena Dorethia Botha
Court
Free State High Court, Bloemfontein
Jurisdiction
South Africa
Judgment Date
14 June 2022
Case Number
5032/2021
Procedural Posture
Summary Judgment Application / Application for Summary Judgment; Opposition by Defendants; Judgment Delivered
Outcome
Summary judgment refused; defendants granted leave to defend; costs to be costs in the cause.
Judges
Africa
Legal Topics
Summary Judgment, Liquidated Claim, Suretyship, Overdraft Facility, Breach of Contract, Good Faith Exercise of Discretion
Civil Procedure Banking and Finance Summary Judgment Liquidated Claim Suretyship Overdraft Facility Breach of Contract Good Faith Exercise of Discretion

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 7 Party arguments 2 Amounts and remedies 3
Sign in to unlock

Parties

Nedbank Limited

Plaintiff

Retyre (Pty) Ltd

Defendant

Jenders Investments (Pty) Ltd

Defendant

Eben Vincent Botha

Defendant

Helena Dorethia Botha

Defendant

Procedural Posture

Summary Judgment Application / Application for Summary Judgment; Opposition by Defendants; Judgment Delivered

Legal Issues

  1. 1 Whether the plaintiff is entitled to summary judgment against the defendants.
  2. 2 Whether the evidence attached to the founding affidavit constitutes impermissible new evidence under Rule 32.
  3. 3 Whether the defendants' failure to submit financial documents constitutes a breach as pleaded.

Ratio Decidendi

The court found that the plaintiff's attachment of Annexure 'RET6' to the founding affidavit constituted new evidence not pleaded in the particulars of claim, and was therefore inadmissible under Rule 32. The breach relied upon by the plaintiff, namely the failure to submit financial documents, was not part of the pleaded case and could not be used to support summary judgment. The calculation of the amount claimed left room for uncertainty, raising a triable issue. The defendants' arguments regarding the exercise of contractual discretion and the charging of excess fees also raised bona fide defences. Accordingly, the court held that the defences put up by the defendants were bona fide...

Court Disposition

Summary judgment refused; defendants granted leave to defend; costs to be costs in the cause.

Orders

  • The application for summary judgment is refused.
  • Leave is granted to the defendants to defend the action.