Tesven CC and Another v South African Bank of Athens (312/97, 523/97) [1999] ZASCA 75; [1999] 4 All SA 396 (A); 2000 (1) SA 268 (SCA) (28 September 1999)

Tesven CC and Another v South African Bank of Athens (312/97, 523/97) [1999] ZASCA 75; [1999] 4 All SA 396 (A); 2000 (1) SA 268 (SCA) (28 September 1999)

The Supreme Court of Appeal held that the trial court erred in applying the parol evidence rule to exclude evidence of the parties' prior oral agreements and common intention for the purpose of rectification. The affidavits filed by the defendants, although lacking in particularity, disclosed just enough to constitute a bona fide defence under Rule 32(3). The court found that the defence was not bad in law and that there was sufficient evidentiary material to suggest the plaintiff's case may not be unanswerable. Accordingly, the court exercised its discretion to refuse summary judgment and granted the defendants leave to defend the action.

Citation
[1999] ZASCA 75
Parties
Appellant: Tesven CC; Appellant: Margaret Muriel Gaganakis; Respondent: South African Bank of Athens
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
28 September 1999
Case Number
312/97, 523/97
Procedural Posture
Civil Appeal / Appeal Against Summary Judgment Order
Outcome
Appeal allowed; summary judgment refused; defendants granted leave to defend.
Judges
Mahomed, Van Heerden, Smalberger, Howie, Farlam
Legal Topics
Rectification of Contract, Parol Evidence Rule, Summary Judgment, Suretyship, Mortgage Bond
Civil Procedure Commercial and Corporate Rectification of Contract Parol Evidence Rule Summary Judgment Suretyship Mortgage Bond

Case Brief

Summary, issues, holding and outcome

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Parties

Tesven CC

Appellant

Margaret Muriel Gaganakis

Appellant

South African Bank of Athens

Respondent

Procedural Posture

Civil Appeal / Appeal Against Summary Judgment Order

Legal Issues

  1. 1 Whether rectification of the deeds of suretyship and mortgage bond is precluded by the parol evidence rule.
  2. 2 Whether the defendants disclosed a bona fide defence sufficient to resist summary judgment.
  3. 3 Whether the court should exercise its discretion to refuse summary judgment despite deficiencies in the opposing affidavits.

Ratio Decidendi

The Supreme Court of Appeal held that the trial court erred in applying the parol evidence rule to exclude evidence of the parties' prior oral agreements and common intention for the purpose of rectification. The affidavits filed by the defendants, although lacking in particularity, disclosed just enough to constitute a bona fide defence under Rule 32(3). The court found that the defence was not bad in law and that there was sufficient evidentiary material to suggest the plaintiff's case may not be unanswerable. Accordingly, the court exercised its discretion to refuse summary judgment and granted the defendants leave to defend the action.

Court Disposition

Appeal allowed; summary judgment refused; defendants granted leave to defend.

Orders

  • Appellants' failure to file the record of appeal timeously is condoned.
  • Respondent is ordered to pay the costs of the application for condonation of the late filing of the appeal record.