Petersen NO and Others v Collopen (15869/2018) [2018] ZAGPJHC 654 (13 December 2018)

Petersen NO and Others v Collopen (15869/2018) [2018] ZAGPJHC 654 (13 December 2018)

The court found that the certificate of indebtedness relied upon by the applicants referred to a suretyship agreement dated 24 May 2014, while the actual agreement was dated 28 May 2014. This discrepancy, even if potentially a typographical error, introduced sufficient doubt as to whether the certificate related to the correct agreement. Applying the principle that summary judgment should only be granted where the plaintiff's case is unanswerable and there is no doubt, the court refused summary judgment and granted the respondent leave to defend the main action. The court did not consider the respondent's other defences, as the point regarding the certificate was dispositive.

Citation
[2018] ZAGPJHC 654
Parties
Applicant: Izak Smolly Petersen N.O.; Applicant: Three Others; Respondent: Arnold Manikum Roy Collopen
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
13 December 2018
Case Number
15869/2018
Procedural Posture
Summary Judgment Application / Application for Summary Judgment
Outcome
Summary judgment refused; respondent granted leave to defend.
Judges
CHJ Badenhorst
Legal Topics
Summary Judgment, Suretyship, Certificate of Indebtedness, Leave to Defend
Civil Procedure Commercial and Corporate Summary Judgment Suretyship Certificate of Indebtedness Leave to Defend

Case Brief

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Parties

Izak Smolly Petersen N.O.

Applicant

Three Others

Applicant

Arnold Manikum Roy Collopen

Respondent

Procedural Posture

Summary Judgment Application / Application for Summary Judgment

Legal Issues

  1. 1 Whether the certificate of indebtedness relied upon by the applicants complies with the requirements of the suretyship agreement.
  2. 2 Whether the discrepancy in the date of the suretyship agreement as stated in the certificate is fatal to the applicants' case.
  3. 3 Whether summary judgment should be granted in light of the respondent's defences.

Ratio Decidendi

The court found that the certificate of indebtedness relied upon by the applicants referred to a suretyship agreement dated 24 May 2014, while the actual agreement was dated 28 May 2014. This discrepancy, even if potentially a typographical error, introduced sufficient doubt as to whether the certificate related to the correct agreement. Applying the principle that summary judgment should only be granted where the plaintiff's case is unanswerable and there is no doubt, the court refused summary judgment and granted the respondent leave to defend the main action. The court did not consider the respondent's other defences, as the point regarding the certificate was dispositive.

Court Disposition

Summary judgment refused; respondent granted leave to defend.

Orders

  • The application for summary judgment is refused and the respondent is granted leave to defend the main action.
  • The costs of the summary judgment proceedings will be costs in the cause.