Scribante and Another v 47 Club Trading (Pty) Ltd and Others (D6326/2023) [2024] ZAKZDHC 92 (5 December 2024)

Scribante and Another v 47 Club Trading (Pty) Ltd and Others (D6326/2023) [2024] ZAKZDHC 92 (5 December 2024)

The application for summary judgment is refused because the plaintiffs' affidavit verifies all mutually destructive alternative claims rather than only the allegations supporting the claim relied upon. The uncertainty created by the pleadings and the verifying affidavit means that the requirements of Rule 32(2)(b) have not been met. The plaintiffs' cautious approach to pleading, necessitated by the oral nature of the agreements, has resulted in uncertainty as to which plaintiff contracted with which defendant. This uncertainty defeats the right to summary judgment, regardless of the defendants' plea or whether a defence is raised. The defects in the application are fatal and cannot be...

Citation
[2024] ZAKZDHC 92
Parties
Plaintiff: Renzo Angelo Scribante; Plaintiff: Rembrothers (Pty) Ltd; Defendant: The 47 Club Trading (Pty) Ltd; Defendant: KDE Holdings; Defendant: Gibson Mthembu
Court
Kwazulu-Natal High Court, Durban
Jurisdiction
South Africa
Judgment Date
5 December 2024
Case Number
D6326/2023
Procedural Posture
Summary Judgment Application / Application for Summary Judgment After Plea Filed
Outcome
Summary judgment refused; defendants granted leave to defend; costs reserved for trial court; matter placed on expedited trial roll.
Judges
Ploos van Amstel
Legal Topics
Summary Judgment, Oral Contract, Loan Agreement, Pleading in the Alternative
Civil Procedure Commercial and Corporate Summary Judgment Oral Contract Loan Agreement Pleading in the Alternative

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 4 Authorities cited 11 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Parties

Renzo Angelo Scribante

Plaintiff

Rembrothers (Pty) Ltd

Plaintiff

The 47 Club Trading (Pty) Ltd

Defendant

KDE Holdings

Defendant

Gibson Mthembu

Defendant

Procedural Posture

Summary Judgment Application / Application for Summary Judgment After Plea Filed

Legal Issues

  1. 1 Whether the plaintiffs' affidavit in support of summary judgment complies with Uniform Rule 32(2)(b).
  2. 2 Whether summary judgment can be granted where the particulars of claim contain mutually destructive alternative versions of the cause of action.
  3. 3 Whether the uncertainty in the pleadings defeats the plaintiffs' right to summary judgment.

Ratio Decidendi

The application for summary judgment is refused because the plaintiffs' affidavit verifies all mutually destructive alternative claims rather than only the allegations supporting the claim relied upon. The uncertainty created by the pleadings and the verifying affidavit means that the requirements of Rule 32(2)(b) have not been met. The plaintiffs' cautious approach to pleading, necessitated by the oral nature of the agreements, has resulted in uncertainty as to which plaintiff contracted with which defendant. This uncertainty defeats the right to summary judgment, regardless of the defendants' plea or whether a defence is raised. The defects in the application are fatal and cannot be...

Court Disposition

Summary judgment refused; defendants granted leave to defend; costs reserved for trial court; matter placed on expedited trial roll.

Orders

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