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South Africa: South Gauteng High Court, Johannesburg
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[2013] ZAGPJHC 167
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Standard Bank of South Africa v Luus (2013/9165) [2013] ZAGPJHC 167 (12 June 2013)
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REPUBLIC OF SOUTH
AFRICA
SOUTH GAUTENG HIGH
COURT
JOHANNESBURG
CASE NO: 2013/9165
In the matter between:
STANDARD
BANK OF SOUTH AFRICA
Plaintiff
/Applicant
and
LUUS
WILHELMINA FREDERIKA
Defendant
/Respondent
JUDGMENT
RATSHIBVUMO
AJ
:
1.
This is an application for summary judgment
by the applicant (plaintiff in the main case) which is opposed by the
respondent (defendant
in the main action).
2.
Background:
The
application is based on an agreement allegedly signed between the
applicant and the respondent. One of the prayers in the summons
by
the applicant is to have the said agreement rectified in that it
contains a bona common mistake between the parties. No such
request
was repeated for purposes of this application. The respondent
disputes that there is such common mistake between her and
the
applicant.
3.
Upon close inspection of the said agreement
it appears it was signed on 31 July 2006 between
the applicant and Isabella Luus with ID number …. The
agreement contains
inter alia, the description of goods as a motor
vehicle with chasis number 1F0S82000054. The names of the respondent
reflected
in the particulars of claim are however Wilhemina Frederika
Luus (this is still different from the names reflected in the notice
of motion and the summons), with ID no. …. The chasis number
of the motor vehicle which is the subject of the action is
reflected
in the particulars of claim as 1F0SH220054. This does not appear to
be a typing error as the applicant alleges, where
one could expect
spelling mistakes. It appears as if wrong information was entered
altogether. If that is not the case, the contract
could be valid,
with proper details of the parties, just that it may not be the
contract that was signed between the applicant
and the respondent.
The major confusion on this is the respondent who seems determined to
simply highlight the problem without
coming with any clear
explanation, obviously with the hopes that it would boost her claim
that she has a valid defence to the claim.
4.
Reading through the respondent affidavit
and the heads of argument prepared for her, I can find no particular
defence which could
stand against the applicant’s claim. All of
the defences she raised are technical and cannot take the defence
far. Weak as
the defences appear to be, the court sits with a
predicament on whether there is indeed a mistake in the agreement
referred to
above or not. I am of a view that the explanation of the
wrong details in the agreement cannot be rectified through summary
judgment
application especially when the alleged common mistake is
disputed. There is therefore no agreement (rectified) before the
court
upon which summary judgment can be based.
5.
In light of the above, it appears to me the
proper way through which the agreement could be rectified in light of
the mistakes or
wrong information contained therein, would be by way
of a trial. In that event, I make the following order.
1.
That the application for summary judgment
is dismissed.
2.
That the costs of this application shall be
the costs in cause.
T.V.
RATSHIBVUMO
ACTING
JUDGE OF THE HIGH COURT
Date Heard: 20
May 2013
Judgment Delivered:
12 June 2013
For the Applicant:
Adv. JC Viljoen
Instructed
by: Stupel & Berman Incorporated Germiston
For the Respondent:
Adv. C Van der Merwe
Instructed
by: Biccari, Bollo & Mariano Inc
Norwood