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# South Africa: North Gauteng High Court, Pretoria
South Africa: North Gauteng High Court, Pretoria
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[2025] ZAGPPHC 219
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## First Rand Bank Limited t/a First National Bank v V and N Agencies CC and Another (39869/21)
[2025] ZAGPPHC 219 (10 March 2025)
First Rand Bank Limited t/a First National Bank v V and N Agencies CC and Another (39869/21)
[2025] ZAGPPHC 219 (10 March 2025)
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sino date 10 March 2025
REPUBLIC OF SOUTH
AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
GAUTENG DIVISION,
PRETORIA
CASE NO.: 39869/21
(1)
REPORTABLE: NO
(2) OF
INTEREST TO OTHER JUDGES: NO
(3)
REVISED: NO
Date: 10 March 2025
E van der Schyff
In
the matter between:
FIRST
RAND BANK LIMITED t/a FIRST NATIONAL
BANK
Plaintiff
and
V
& N AGENCIES
CC
First Defendant
MUKESH
NARSING
THACOR
Second Defendant
JUDGMENT
Van der Schyff J
Introduction
[1]
This is an application for summary
judgment. The plaintiff issued a simple summons. The cause of action
is a written acknowledgment
of liability executed by the first and
second defendants on 21 June 2021. The defendants filed a notice of
intention to defend,
whereafter the plaintiff filed a declaration.
The plaintiff’s case is based on the written acknowledgment of
liability.
[2]
The defendants deny concluding and signing
an acknowledgment of liability agreement. They acknowledge that a
credit facility was
afforded to them by the plaintiff and claim that
the plaintiff had not assessed the first defendant’s financial
situation
and affordability prior to affording the first defendant a
credit facility.
[3]
Counsel for the plaintiff submitted that
the court should disregard what it coined a bare denial. If regard is
had to the
facta probanda
contained in the summons, it is difficult to grasp how the defendants
should have phrased their plea other than denying that they
signed
any acknowledgment of liability.
[4]
It
is trite that the onus of proving the existence of a contract, the
acknowledgment of liability agreement, rests on the person
who
alleges that the contract exists.
[1]
By denying that the acknowledgment of liability agreement was
concluded or signed by the second defendant, the defendants raise
a
justiciable issue and avert summary judgment being granted against
it.
ORDER
In
the result, the following order is granted:
1.
The application for summary judgment is dismissed with costs
on scale B.
E van der Schyff
Judge of the High Court
Delivered:
This judgment is handed down electronically by uploading it to the
electronic file of this matter on CaseLines.
For the plaintiff:
Adv. R van Dyk
Instructed by:
Schȕler
Heerschop Pienaar Xaba Inc.
For the defendants:
Adv. K. Randall
Instructed by:
ZAF Khan
Date of the
hearing:
4 March 2025
Date of judgment:
10 March 2025
[1]
[1]
Union
Spinning Mills (Pty) Ltd v Paltex Dye House (Pty) Ltd and Another
2002
(4) SA 408
(SCA) at para [6].
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