Van Baalen and Another v ABSA Bank (22652/2022) [2024] ZAGPPHC 26 (3 January 2024)

Van Baalen and Another v ABSA Bank (22652/2022) [2024] ZAGPPHC 26 (3 January 2024)

The court held that the failure to annex true copies of the written credit agreements to the particulars of claim, as required by Uniform Rule 18(6), does not render the claim excipiable where the agreements have been misplaced and the respondent has pleaded the material terms and explained the inability to annex the documents. The substantive law does not preclude enforcement of a written contract merely because it is lost or destroyed. The respondent's particulars of claim set out sufficient terms to enable the excipients to plead thereto, and the issue of the agreements' existence and terms is a matter for the trial court to determine on evidence. The exception was therefore dismissed.

Citation
[2024] ZAGPPHC 26
Parties
Applicant: Pieter Willem Adriaan van Baalen; Applicant: Juanette van Baalen; Respondent: ABSA Bank
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
3 January 2024
Case Number
22652/2022
Procedural Posture
Exception Application / Exception to Particulars of Claim Prior to Trial
Outcome
Exception dismissed; costs reserved for determination at the hearing of the main action.
Judges
E M Kubushi
Legal Topics
Uniform Rule 18 6, Credit Agreements, Pleadings Requirements, Best Evidence Rule, Mortgage Bond Enforcement
Civil Procedure Banking and Finance Uniform Rule 18 6 Credit Agreements Pleadings Requirements Best Evidence Rule Mortgage Bond Enforcement

Case Brief

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Parties

Pieter Willem Adriaan van Baalen

Applicant

Juanette van Baalen

Applicant

ABSA Bank

Respondent

Procedural Posture

Exception Application / Exception to Particulars of Claim Prior to Trial

Legal Issues

  1. 1 Whether the particulars of claim are excipiable due to the failure to annex true copies of the written credit agreements as required by Uniform Rule 18(6).
  2. 2 Whether the absence of the written agreements precludes the respondent from enforcing its claim.
  3. 3 Whether the terms alleged in the particulars of claim are sufficient to enable the defendants to plead thereto.

Ratio Decidendi

The court held that the failure to annex true copies of the written credit agreements to the particulars of claim, as required by Uniform Rule 18(6), does not render the claim excipiable where the agreements have been misplaced and the respondent has pleaded the material terms and explained the inability to annex the documents. The substantive law does not preclude enforcement of a written contract merely because it is lost or destroyed. The respondent's particulars of claim set out sufficient terms to enable the excipients to plead thereto, and the issue of the agreements' existence and terms is a matter for the trial court to determine on evidence. The exception was therefore dismissed.

Court Disposition

Exception dismissed; costs reserved for determination at the hearing of the main action.

Orders

  • The application is dismissed.
  • Costs are reserved for determination at the hearing of the main action.