Van Der Weele and Another v Da Costa (2023/123982) [2025] ZAGPJHC 198 (27 February 2025)

Van Der Weele and Another v Da Costa (2023/123982) [2025] ZAGPJHC 198 (27 February 2025)

The matter involves serious factual disputes regarding the nature of the funds advanced, the validity of the acknowledgement of debt and settlement agreement, and whether the agreements fall under the National Credit Act or were signed under duress. The applicants failed to make out a clear case in their founding affidavit and only acknowledged key facts late in the proceedings. Given the complexity and factual disagreements, the matter is unsuitable for motion proceedings and must be referred to trial, where evidence can be properly tested. Costs are awarded against the applicants for persisting with motion proceedings despite clear indications that action proceedings were required.

Citation
[2025] ZAGPJHC 198
Parties
Applicant: Neil Van Der Weele; Applicant: Kevin Liebenberg; Respondent: Raphael Garcia Da Costa
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
27 February 2025
Case Number
2023/123982
Procedural Posture
Urgent Application / Referral to Trial After Opposed Motion
Outcome
Application referred to trial; costs awarded against applicants.
Judges
PJ Du Plessis
Legal Topics
Unjustified Enrichment, National Credit Act, Duress, Referral to Trial, Acknowledgement of Debt
Civil Procedure Commercial and Corporate Unjustified Enrichment National Credit Act Duress Referral to Trial Acknowledgement of Debt

Case Brief

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Parties

Neil Van Der Weele

Applicant

Kevin Liebenberg

Applicant

Raphael Garcia Da Costa

Respondent

Procedural Posture

Urgent Application / Referral to Trial After Opposed Motion

Legal Issues

  1. 1 Whether the acknowledgement of debt and settlement agreement are void due to non-compliance with the National Credit Act.
  2. 2 Whether the acknowledgement of debt and settlement agreement were signed under duress.
  3. 3 Whether the applicants are entitled to payment from the respondent.

Ratio Decidendi

The matter involves serious factual disputes regarding the nature of the funds advanced, the validity of the acknowledgement of debt and settlement agreement, and whether the agreements fall under the National Credit Act or were signed under duress. The applicants failed to make out a clear case in their founding affidavit and only acknowledged key facts late in the proceedings. Given the complexity and factual disagreements, the matter is unsuitable for motion proceedings and must be referred to trial, where evidence can be properly tested. Costs are awarded against the applicants for persisting with motion proceedings despite clear indications that action proceedings were required.

Court Disposition

Application referred to trial; costs awarded against applicants.

Orders

  • The application is referred to trial, with applicants as plaintiffs and respondent as defendant.
  • The Notice of Motion and Founding Affidavit stand as a simple summons.