Velocity Finance (RF) Limited v Desert Fox Investments (Pty) Ltd t/a Desert Fox Investments (1206/2022; 1511/2022) [2023] ZAECMKHC 65 (23 May 2023)

Velocity Finance (RF) Limited v Desert Fox Investments (Pty) Ltd t/a Desert Fox Investments (1206/2022; 1511/2022) [2023] ZAECMKHC 65 (23 May 2023)

The court found that while an overly formalistic approach to the deponent's knowledge is not warranted, the plaintiff failed to plead and prove the necessary details of the cession agreement and fulfilment of its conditions as required by rule 18(6). The plaintiff did not attach the cession agreement to its particulars of claim nor plead the facts necessary to establish locus standi. These omissions rendered the particulars excipiable and established a triable issue regarding the plaintiff's right to sue. Consequently, the defendant's bona fide defence was upheld, and summary judgment was refused.

Citation
[2023] ZAECMKHC 65
Parties
Plaintiff: Velocity Finance (RF) Limited; Defendant: Desert Fox Investments (Pty) Ltd t/a Desert Fox Investments
Court
Eastern Cape High Court, Makhanda
Jurisdiction
South Africa
Judgment Date
23 May 2023
Case Number
1206/2022; 1511/2022
Procedural Posture
Summary Judgment Application / Application for Summary Judgment Following Delivery of Plea
Outcome
Applications for summary judgment dismissed; costs awarded against the applicant.
Judges
Laing
Legal Topics
Summary Judgment, Cession of Rights, Locus Standi, Rule 18 6 Compliance, Electronic Evidence, Instalment Sale Agreement
Civil Procedure Banking and Finance Summary Judgment Cession of Rights Locus Standi Rule 18 6 Compliance Electronic Evidence Instalment Sale Agreement

Case Brief

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Parties

Velocity Finance (RF) Limited

Plaintiff

Desert Fox Investments (Pty) Ltd t/a Desert Fox Investments

Defendant

Procedural Posture

Summary Judgment Application / Application for Summary Judgment Following Delivery of Plea

Legal Issues

  1. 1 Whether the plaintiff's deponent was competent to swear positively to the facts as required by rule 32(2).
  2. 2 Whether the plaintiff complied with rule 18(6) in pleading and proving the cession agreement and locus standi.
  3. 3 Whether the defendant raised a bona fide defence sufficient to defeat summary judgment.

Ratio Decidendi

The court found that while an overly formalistic approach to the deponent's knowledge is not warranted, the plaintiff failed to plead and prove the necessary details of the cession agreement and fulfilment of its conditions as required by rule 18(6). The plaintiff did not attach the cession agreement to its particulars of claim nor plead the facts necessary to establish locus standi. These omissions rendered the particulars excipiable and established a triable issue regarding the plaintiff's right to sue. Consequently, the defendant's bona fide defence was upheld, and summary judgment was refused.

Court Disposition

Applications for summary judgment dismissed; costs awarded against the applicant.

Orders

  • The applications for summary judgment under case numbers 1206/2022 and 1511/2022 are dismissed.
  • The applicant is directed to pay the respondent's costs in relation thereto.