Visser and Another v ASAPI 1046 CC t/a PFC Durbanville and Others (A420/2010) [2011] ZAWCHC 194 (1 April 2011)

Visser and Another v ASAPI 1046 CC t/a PFC Durbanville and Others (A420/2010) [2011] ZAWCHC 194 (1 April 2011)

The court held that its previous judgment, which set aside the summary judgment against the second appellant and granted her leave to defend, is appealable because it reversed a final judgment in the Magistrate's Court. However, the court found that there are no reasonable prospects of success for the respondents in an appeal to the Supreme Court of Appeal. The second appellant's affidavit opposing summary judgment disclosed the nature and grounds of her defence, specifically alleging duress in the conclusion of the loan and suretyship agreements. The court determined that the standard of disclosure required for resisting summary judgment was met and that the drastic remedy of summary...

Citation
[2011] ZAWCHC 194
Parties
Appellant: Andries Visser; Appellant: Yolande Visser; Respondent: ASAPI 1046 CC t/a PFC Durbanville; Respondent: Noeleen van den Berg; Respondent: Ereka Kotze
Court
Western Cape High Court, Cape Town
Jurisdiction
South Africa
Judgment Date
1 April 2011
Case Number
A420/2010
Procedural Posture
Leave to Appeal / Application for Leave to Appeal Following a Judgment on Summary Judgment Appeal
Outcome
Application for leave to appeal refused with costs.
Judges
Bozalek, Goliath
Legal Topics
Summary Judgment, Leave to Appeal, Affidavit Disclosure, Suretyship Under Duress
Civil Procedure Summary Judgment Leave to Appeal Affidavit Disclosure Suretyship Under Duress

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 2 Authorities cited 2 Party arguments 2
Sign in to unlock

Parties

Andries Visser

Appellant

Yolande Visser

Appellant

ASAPI 1046 CC t/a PFC Durbanville

Respondent

Noeleen van den Berg

Respondent

Ereka Kotze

Respondent

Procedural Posture

Leave to Appeal / Application for Leave to Appeal Following a Judgment on Summary Judgment Appeal

Legal Issues

  1. 1 Is the judgment of the High Court appealable given that it reversed a final summary judgment from the Magistrate's Court.
  2. 2 Do the respondents have reasonable prospects of success in an appeal to the Supreme Court of Appeal.
  3. 3 Did the second appellant's opposing affidavit disclose a bona fide and legally sufficient defence to summary judgment.

Ratio Decidendi

The court held that its previous judgment, which set aside the summary judgment against the second appellant and granted her leave to defend, is appealable because it reversed a final judgment in the Magistrate's Court. However, the court found that there are no reasonable prospects of success for the respondents in an appeal to the Supreme Court of Appeal. The second appellant's affidavit opposing summary judgment disclosed the nature and grounds of her defence, specifically alleging duress in the conclusion of the loan and suretyship agreements. The court determined that the standard of disclosure required for resisting summary judgment was met and that the drastic remedy of summary...

Court Disposition

Application for leave to appeal refused with costs.

Orders

  • The application for leave to appeal to the Supreme Court of Appeal is refused.
  • The respondents are ordered to pay the costs of the application.