REPUBLIC OF SOUTH AFRICA
IN THE HIGH 'COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
( 1) REPORT ABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED: NO
Date: l O March 2025 Evan aer Schyff •.
In the matter between:
FIRST RAND BANK LIMITED t/a FIRST NATIONAL BANK
and
V & N AGENCIES CC
MUKESH NARSING THACOR
Van der Schyff J
Introduction JUDGMENT CASE NO.: 39869/21
Plaintiff
First Defendant
se·cond Defendant
[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
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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
11 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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Delivered: This judgment is handed down electronically by uploading it to the electronic file of
this matter on Caselines .
For the plaintiff:
Instructed by:
For the defendants :
Instructed by:
Date of the hearing:
Date of judgment:
3 Adv. R van Dyk
Schuler Heerschop Pienaar Xaba Inc.
Adv. K. Randall
ZAF Khan
4 March 2025
10 March 2025