A fantastic decision by Judge Sutherland in the Gauteng High Court regarding ABSA's credit agreements that were destroyed in a fire. Summary judgment was refused in both cases.
The learned judge held that "it would be inappropriate to pre-judge the merits of the defendants' allegations, and the plaintiff should extricate itself from its regrettable predicament on trial, not by way of summary judgment. This finding should not be construed to mean that I take the view that merely because the foundational documents is unattached to a claim, whether by summons or by application, that summary judgment is not feasible. The decision in each case will be determined by the import of the allegations made by a defendant to question the version of the plaintiff about the terms of the agreement alleged by the plaintiff".
Consumers and their legal representative are urged to closely scrutinise the blank documents that the Banks attach to their summonses and dispute those terms and conditions that materially differ from the credit agreement that they signed in order to prevent summary judgment being granted in favour of the Banks.