Nedbank Ltd v Ziltrex 77 (Pty) Ltd and Others (2009/50239) [2010] ZAGPJHC 97 (29 October 2010)

Nedbank Ltd v Ziltrex 77 (Pty) Ltd and Others (2009/50239) [2010] ZAGPJHC 97 (29 October 2010)

The court held that, although fulfilment of suspensive conditions must generally be pleaded, the conditions in question operated solely for the benefit of the bank. Therefore, the defendants could not rely on non-fulfilment of those conditions to challenge the cause of action. The particulars of claim clearly alleged that the loan was advanced, the debt became repayable after the agreed expiry date, and the defendants were liable as sureties. The court found that the plaintiff's pleading met the requirements of Rule 18(4) and provided sufficient clarity for the defendants to respond. The exception was dismissed as the particulars of claim disclosed a cause of action.

Citation
[2010] ZAGPJHC 97
Parties
Plaintiff: Nedbank Ltd; Defendant: Ziltrex 77 (Pty) Ltd; Defendant: Adventure Family Trust (represented by fifth, sixth and seventh defendants); Defendant: Second to Ninth Defendants
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
29 October 2010
Case Number
2009/50239
Procedural Posture
Civil Procedure / Exception to Particulars of Claim
Outcome
Defendants' exception dismissed with costs. Judgment in favour of the plaintiff against the specified defendants, jointly and severally, the one paying the others to be absolved.
Judges
N.P. Willis
Legal Topics
Suretyship, Facility Agreement, Pleading Requirements, Suspensive Conditions
Civil Procedure Banking and Finance Suretyship Facility Agreement Pleading Requirements Suspensive Conditions

Case Brief

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Parties

Nedbank Ltd

Plaintiff

Ziltrex 77 (Pty) Ltd

Defendant

Adventure Family Trust (represented by fifth, sixth and seventh defendants)

Defendant

Second to Ninth Defendants

Defendant

Procedural Posture

Civil Procedure / Exception to Particulars of Claim

Legal Issues

  1. 1 Whether the plaintiff's particulars of claim disclose a cause of action against the defendants as sureties for the principal debtor.
  2. 2 Whether the plaintiff was required to plead fulfilment of suspensive conditions in the facility agreement.
  3. 3 Whether the particulars of claim provide sufficient clarity regarding the commencement and expiry dates of the facility agreement.

Ratio Decidendi

The court held that, although fulfilment of suspensive conditions must generally be pleaded, the conditions in question operated solely for the benefit of the bank. Therefore, the defendants could not rely on non-fulfilment of those conditions to challenge the cause of action. The particulars of claim clearly alleged that the loan was advanced, the debt became repayable after the agreed expiry date, and the defendants were liable as sureties. The court found that the plaintiff's pleading met the requirements of Rule 18(4) and provided sufficient clarity for the defendants to respond. The exception was dismissed as the particulars of claim disclosed a cause of action.

Court Disposition

Defendants' exception dismissed with costs. Judgment in favour of the plaintiff against the specified defendants, jointly and severally, the one paying the others to be absolved.

Orders

  • The defendants' exception is dismissed with costs.
  • Judgment is given in favour of the plaintiff against the first, second, third, fourth, eighth and ninth defendants and against the fifth, sixth and seventh defendants in their capacities as trustees of the Adventure Family Trust, jointly and severally, the one paying the others to be absolved.