Standard Bank of SA Limited v Mkhabela Incorporated and Others (2022-16350) [2023] ZAGPJHC 1241 (16 October 2023)
The court found that the respondents failed to raise any valid defence to the applicant's claims. The alleged supervening impossibility due to covid-19 and lockdown does not discharge the respondents' obligations, as the impossibility was not objectively proven and mere financial hardship does not suffice. The third...
Source-derived case information.
- Citation
- [2023] ZAGPJHC 1241
- Parties
- Applicant: The Standard Bank of SA Limited; Respondent: Mkhabela Incorporated; Respondent: Arnold Mkhabela; Respondent: Fikile Pearl Mkhabela
- Court
- South Gauteng High Court, Johannesburg
- Jurisdiction
- South Africa
- Case Number
- 2022-16350
- Procedural Posture
- Civil Application / Final Judgment
- Outcome
- Judgment granted in favour of the applicant against the first and second respondents; no order against the third respondent.
- Judges
- Wright
- Legal Topics
- Business Loans, Credit Card Liability, Luxury Vehicle Finance, Supervening Impossibility, Payment Holiday, Default Judgment
Source-derived case record
Summary, issues, holding and outcome
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Parties
The Standard Bank of SA Limited
Applicant
Mkhabela Incorporated
Respondent
Arnold Mkhabela
Respondent
Fikile Pearl Mkhabela
Respondent
Procedural Posture
Civil Application / Final Judgment
Legal Issues
- 1 Whether the respondents are liable to pay the amounts claimed under the business loan, vehicle finance, and credit card agreements.
- 2 Whether supervening impossibility due to covid-19 and lockdown constitutes a valid defence to payment.
- 3 Whether there is any contractual liability against the third respondent.
Ratio Decidendi
The court found that the respondents failed to raise any valid defence to the applicant's claims. The alleged supervening impossibility due to covid-19 and lockdown does not discharge the respondents' obligations, as the impossibility was not objectively proven and mere financial hardship does not suffice. The third respondent was not a party to any of the agreements and thus cannot be held liable. The respondents were not present or represented in court, and the applicant's draft order was granted.
Court Disposition
Judgment granted in favour of the applicant against the first and second respondents; no order against the third respondent.
Orders
- The first and second respondents are ordered to pay the amounts claimed under the business loan, vehicle finance, and credit card agreements.
- No order is made against the third respondent.
Full Case Text
Judgment text and source record
42 paragraphs
SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in compliance with the law and SAFLII Policy
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, JOHANNESBURG
CASE NO: 2022-16350
NOT REPORTABLE
NOT OF INTEREST TO OTHER JUDGES
REVISED
16/10/23
In the matter between:
THE STANDARD BANK OF SA LIMITED APPLICANT and MKHABELA INCORPORATED (Registration No:[…]) 1ST RESPONDENT ARNOLD MKHABELA (ID. No:[…]) 2ND RESPONDENT FIKILE PEARL MKHABELA (ID. No:[…]) 3RD RESPONDENT
JUDGMENT
WRIGHT J
1. The applicant bank claims money from the respondents. The first respondent is a firm of attorneys. The second respondent is an attorney and the moving force behind the first respondent. The third respondent is his wife, to whom he is allegedly married in community of property.
2. The claims relate to money owed to the applicant for a business loan, two luxury vehicles and a credit card. The allegation in the founding affidavit is that the second respondent represented the first respondent in concluding the various agreements. There is no allegation that the third respondent contracted with the applicant.
3. The defence is that when the parties contracted they did not foresee covid and its consequences, including lockdown. If they had, they would not have contracted on the terms on which they did. The negative effect which covid had on the economy hit the poor. The respondents are poor. The respondents can’t pay because of supervening impossibility. The respondents are entitled to a payment holiday.
4. Unfortunately, unwarranted, baseless allegations of fraud are made against the deponent for the bank.
5. There is simply no defence on the vague defences put forward.
6. There is no case against the third respondent.
7. The respondents were not in court or represented when the case was called.
8. Adv Jacobs, for the bank handed up a draft order.
ORDER
X -
GC Wright
Judge of the High Court
Gauteng Division, Johannesburg
HEARD : 16 October 2023
DELIVERED : 16 October 2023
APPEARANCES :
APPLICANT
Adv Shaun Jacobs
shaun@stupelberman.com
082 889 6472
Instructed by
Stupel & Berman Inc
Elzaan@stupelberman.co.za
011 074 6944 / 072 707 2880
RESPONDENTS
Adv ?
Mkhabela Attorneys
011 807 6046
ndmochaki@mkhabelainc.co.za / boikanyo@mkhabelainc.co.za
phyllis@mkhabelainc.co.za