Scally v Feltra (Pty) Ltd (272/2019) [2019] ZAKZPHC 36 (11 June 2019)

Scally v Feltra (Pty) Ltd (272/2019) [2019] ZAKZPHC 36 (11 June 2019)

The court found that the respondent raised a bona fide defence of prescription, arguing that the debt became due more than three years before summons was served. The applicant relied on part payments made up to June 2018 as a tacit acknowledgement of liability interrupting prescription. However, the issue of interruption was not pleaded, and the respondent was not afforded an opportunity to present evidence regarding the circumstances of the payments. The court held that whether part payments amount to a tacit acknowledgement of liability depends on all relevant facts, which must be ventilated at trial. Granting summary judgment would deny the respondent the opportunity to present its...

Citation
[2019] ZAKZPHC 36
Parties
Applicant: Jeannette Valerie Scally; Respondent: Feltra (Pty) Ltd
Court
Kwazulu-Natal High Court, Pietermaritzburg
Jurisdiction
South Africa
Judgment Date
11 June 2019
Case Number
272/2019
Procedural Posture
Summary Judgment Application / Application for Summary Judgment
Outcome
Summary judgment refused; respondent granted leave to defend; costs reserved; matter referred to expedited trial roll.
Judges
Gorven
Legal Topics
Summary Judgment, Prescription Act, Mora Interest, Contractual Debt, Tacit Acknowledgement
Civil Procedure Commercial and Corporate Summary Judgment Prescription Act Mora Interest Contractual Debt Tacit Acknowledgement

Case Brief

Summary, issues, holding and outcome

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Parties

Jeannette Valerie Scally

Applicant

Feltra (Pty) Ltd

Respondent

Procedural Posture

Summary Judgment Application / Application for Summary Judgment

Legal Issues

  1. 1 Whether the applicant is entitled to summary judgment for the outstanding purchase price under the sale agreement.
  2. 2 Whether the respondent's debt has prescribed under the Prescription Act 68 of 1969.
  3. 3 Whether part payments made by the respondent constitute a tacit acknowledgement of liability interrupting prescription.

Ratio Decidendi

The court found that the respondent raised a bona fide defence of prescription, arguing that the debt became due more than three years before summons was served. The applicant relied on part payments made up to June 2018 as a tacit acknowledgement of liability interrupting prescription. However, the issue of interruption was not pleaded, and the respondent was not afforded an opportunity to present evidence regarding the circumstances of the payments. The court held that whether part payments amount to a tacit acknowledgement of liability depends on all relevant facts, which must be ventilated at trial. Granting summary judgment would deny the respondent the opportunity to present its...

Court Disposition

Summary judgment refused; respondent granted leave to defend; costs reserved; matter referred to expedited trial roll.

Orders

  • Summary judgment is refused.
  • The respondent is given leave to defend the action.