NEDBANK v LF Botes (3225/2020) [2021] ZAFSHC 74 (18 March 2021)

NEDBANK v LF Botes (3225/2020) [2021] ZAFSHC 74 (18 March 2021)

The court found that the defendant presented a bona fide and trialable defence to the plaintiff's claim for summary judgment. The evidence indicated that the parties may have entered into a subsequent oral agreement that novated the original suretyship, and the non-variation clause did not expressly preclude oral or tacit novation in these circumstances. The matter is therefore suitable for trial, and summary judgment is not appropriate.

Citation
[2021] ZAFSHC 74
Parties
Plaintiff: NEDBANK LIMITED; Defendant: LOUIS FREDERIK BOTES
Court
Free State High Court, Bloemfontein
Jurisdiction
South Africa
Judgment Date
18 March 2021
Case Number
3225/2020
Procedural Posture
Summary Judgment Application / Application for Summary Judgment
Outcome
Application for summary judgment dismissed; defendant granted leave to defend.
Judges
Opperman
Legal Topics
Summary Judgment, Novation, Suretyship, Non Variation Clause, Contractual Defence
Civil Procedure Commercial and Corporate Summary Judgment Novation Suretyship Non Variation Clause Contractual Defence

Case Brief

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Parties

NEDBANK LIMITED

Plaintiff

LOUIS FREDERIK BOTES

Defendant

Procedural Posture

Summary Judgment Application / Application for Summary Judgment

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 the suretyship agreement was novated by subsequent oral agreement between the parties.
  3. 3 Whether the non-variation (Shifren) clause in the suretyship precludes oral novation.

Ratio Decidendi

The court found that the defendant presented a bona fide and trialable defence to the plaintiff's claim for summary judgment. The evidence indicated that the parties may have entered into a subsequent oral agreement that novated the original suretyship, and the non-variation clause did not expressly preclude oral or tacit novation in these circumstances. The matter is therefore suitable for trial, and summary judgment is not appropriate.

Court Disposition

Application for summary judgment dismissed; defendant granted leave to defend.

Orders

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