RSC Avelo (Pty) Ltd v Kenako Conrete (Pty) Ltd and Others (3134/2018) [2018] ZAECPEHC 69 (15 November 2018)

RSC Avelo (Pty) Ltd v Kenako Conrete (Pty) Ltd and Others (3134/2018) [2018] ZAECPEHC 69 (15 November 2018)

The court found that the deponent to the summary judgment affidavit did not have direct personal knowledge of the facts necessary to verify the cause of action and the amount claimed. The deponent's position as Group Credit Manager, based in Johannesburg, did not establish sufficient connection to the transactions...

Source-derived case information.

Citation
[2018] ZAECPEHC 69
Parties
Plaintiff: RSC Avelo (Pty) Ltd; Defendant: Kenako Concrete (Pty) Ltd; Defendant: Jerome William Perils; Defendant: Milano Ruud Francis
Court
Eastern Cape High Court, Port Elizabeth
Jurisdiction
South Africa
Judgment Date
15 November 2018
Case Number
3134/2018
Procedural Posture
Summary Judgment Application / Application for Summary Judgment
Outcome
Application for summary judgment dismissed; defendants granted leave to defend; costs to be costs in the main action.
Judges
T Malusi
Legal Topics
Summary Judgment, Affidavit Requirements, Personal Knowledge, Suretyship, Goods Sold and Delivered
Civil Procedure Summary Judgment Affidavit Requirements Personal Knowledge Suretyship Goods Sold and Delivered

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Parties

RSC Avelo (Pty) Ltd

Plaintiff

Kenako Concrete (Pty) Ltd

Defendant

Jerome William Perils

Defendant

Milano Ruud Francis

Defendant

Procedural Posture

Summary Judgment Application / Application for Summary Judgment

Legal Issues

  1. 1 Whether the deponent to the summary judgment affidavit had sufficient personal knowledge of the facts to swear positively to them.
  2. 2 Whether the requirements of Rule 32(2) for summary judgment were satisfied.
  3. 3 Whether the application for summary judgment should be granted in light of the affidavit's deficiencies.

Ratio Decidendi

The court found that the deponent to the summary judgment affidavit did not have direct personal knowledge of the facts necessary to verify the cause of action and the amount claimed. The deponent's position as Group Credit Manager, based in Johannesburg, did not establish sufficient connection to the transactions concluded in Port Elizabeth. The affidavit failed to provide facts supporting the deponent's personal knowledge of the alleged debt. Strict compliance with Rule 32(2) is required, and the absence of direct knowledge rendered the application fatally defective. Consequently, the application for summary judgment was dismissed and the defendants were granted leave to defend.

Court Disposition

Application for summary judgment dismissed; defendants granted leave to defend; costs to be costs in the main action.

Orders

  • The application for summary judgment is dismissed.
  • The defendants are granted leave to defend the application.