About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Western Cape High Court, Cape Town
SAFLII
>>
Databases
>>
South Africa: Western Cape High Court, Cape Town
>>
2016
>>
[2016] ZAWCHC 147
|
|
Absa Bank Limited v Smith (14508/2016) [2016] ZAWCHC 147 (21 October 2016)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
Republic
of South Africa
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE DIVISION, CAPE TOWN)
Case
No: 14508/2016
In
the matter between:
ABSA
BANK LIMITED
Applicant
and
GREGORY
CHARLES SMITH
Respondent
Heard
:
18 October 2016
Delivered
:
21 October 2016
JUDGMENT
SHER
AJ
:
[1]
Plaintiff
makes application for summary judgment against the defendant, in the
amount of R918 776, 54 together with
mora
interest thereon at the rate of 8.9% per annum from 20 June 2015
to date of payment, such interest to be capitalised monthly
in
arrears. Plaintiff also prays for an order declaring certain
immovable property to wit Erf [....] Cape Town, especially
executable.
[2]
In
the
locus
classicus
Maharaj
v Barclays National Bank Limited
[1]
Corbett JA (as he then was) pointed out that the ‘
extraordinary
and drastic nature’
of
summary judgment was ‘
based
upon the supposition that the plaintiff’s claim is
unimpeachable and that the defendant’s defence is bogus or
bad
in law’.
To this end, it was therefore important that the affidavit made in
support of an application for summary judgment should be made
by a
person who had “personal” knowledge of the facts. It has
been held subsequently that it will suffice if someone
who has
‘
first-hand’
and not necessarily “personal” knowledge of the facts,
and can thus verify the cause of action, deposes to such affidavit.
[3]
It
has also come to be acceptable that any trivial defects in the
affidavit may be held to be cured by reference to other documents
which are properly before the court, and to this end the court must
consider the matter holistically on the basis of all the material
which is before it.
[4]
A
mere assertion by the deponent in the verifying affidavit that he can
“swear positively to the facts” (which is merely
a
reproduction of the exact words in the rule in question) will not
suffice, unless there are ‘
good
grounds’
for believing that such assertion is validly made
[2]
.
The court must also remember that adequate compliance with the
provisions of the sub-rule is a ‘
juristic
prerequisite to a court’s ability to entertain an application’
for summary judgment, as the supporting affidavit is ‘
after
all, the evidence adduced by the plaintiff in support of its case’
[3]
.
[5]
In
the circumstances, a defendant can resist an application for summary
judgment both on the basis that it does not comply with
the
formalities and requirements of sub-rule 32(2) and is thus formally
defective, as well as on the basis that the affidavit he
has filed in
response thereto has properly set out a
bona
fide
defence to the plaintiff’s claim
[4]
.
In
Shackleton
Credit Management (Pty) Ltd v Microzone Trading 88 CC
[5]
Wallis J (as he then was) held that the ‘
proper
starting point’
is the application itself. If it is materially defective then that is
the end of the matter.
[6]
Recently
in
Stamford
Sales and Distribution (Pty) Ltd v Metraclark (Pty) Ltd
[6]
the Supreme Court of Appeal held that ultimately, when considering
the contents of the verifying affidavit and the other documents
which
are before the court, the object is to decide whether the deponent’s
positive affirmation of the underlying facts which
form the basis for
the cause of action are ‘
sufficiently
reliable’
to justify the grant of summary judgment. The court reiterated that
whilst ‘
undue
formalism’
is to be eschewed it was nonetheless important that in summary
judgment applications the plaintiff must be found to have done
substantially what was required of him or her by the rule
[7]
.
[7]
The
deponent to the verifying affidavit in this application is the
Assistant Vice President of the Home Loans Recovery Division
of the
plaintiff, which division is apparently situated in Auckland Park,
Gauteng. He declares that ‘
all
the data and records relating to the applicant’s action against
the defendant’
are under his ‘
control’
and that he has ‘
acquainted’
himself therewith. As is further required he then proceeds to state
that the facts contained in his affidavit are within his ‘
personal
knowledge’
and that he is duly authorised to make the affidavit, before stating
that he has read the summons and the annexed particulars of
claim,
and that he verifies the cause of action and the indebtedness of the
defendant in the amounts and on the grounds stated
in the summons.
Thus he states, in his opinion there is no
bona
fide
defence to the action and appearance to defend has been entered
solely for the purpose of delay.
[8]
The
contents of the verifying affidavit are almost identical to the
affidavit which was before Binns-Ward J in
Absa
Bank Ltd v Le Roux
[8]
and which the learned Judge found in that matter to be inadequate for
the purposes of rule 32(2). As the learned Judge further
pointed out
in the subsequent matter of
Absa
Bank Ltd v Future Indefinite Investments 201 (Pty) Ltd and Ors
[9]
the same plaintiff features in all of these matters and it appears it
has yet to take notice of what was said by the courts in
those
matters
[10]
.
[9]
Whereas
the verifying affidavit was deposed to in Boksburg, Gauteng, it is
apparent that the alleged transactions which underlie
the action all
took place in the Western Cape. There is nothing to indicate, from
the contents of the affidavit itself, which of
‘
all
the data and records’
pertaining to the action the deponent considered to be relevant to
the action at hand and presumably, any such ‘
data
and records’
which the deponent has had access to and which he may have considered
(given his location) consist of electronically captured records.
As
Binns-Ward J pointed out in
Future
Indefinite
[11]
in the circumstances
‘
One might
assume that the captured data concerns the transactional history of
the loan account, but the opacity of the entirely
generic references
by the deponent to the material that (he) had regard to means that
making that assumption requires educated
guesswork rather than
reliance on evidence adduced. That is unsatisfactory.’
[10]
Be
that as it may, it is when one considers the averments made by the
deponent to the verifying affidavit, in the light of the available
documents which are before the court that the true unreliability
thereof is vividly illustrated. In this regard the basis for the
plaintiff’s action is set out in paragraphs 2 – 5 of the
simple summons. It is alleged therein that, at the “special
instance and request” of the defendant, plaintiff agreed to
advance certain monies to him, subject to the registration of
mortgage bonds in favour of the plaintiff over the defendant’s
immovable property as referred to above ‘
and
the terms and conditions as provided for in such mortgage bonds’.
[11]
It
is averred that this underlying loan agreement was in writing, and
was concluded on or about 30 August 2007. The plaintiff
states
that all attempts to locate the original documents evidencing this
agreement, as well as any copies thereof, have failed
[12]
.
A copy of the plaintiff’s alleged standard term agreement was
however said to be annexed to the particulars of claim, but
it must
immediately be pointed out that the plaintiff does not aver that the
agreement it concluded with the defendant in 2007
and documentary
proof of which it cannot locate, was concluded on the same basis and
terms as such standard term agreement. In
the circumstances the
reader is left entirely in the dark as to what the alleged terms and
conditions of the underlying loan agreement
between the parties were.
[12]
And,
to compound the difficulties I have with the documents which are
before me, the verifying affidavit proceeds to allege that
pursuant
to the aforesaid agreement (which as I have already pointed out it is
alleged was concluded on or about 30 August 2007) the
defendant
caused three mortgage bonds to be registered over the defendant’s
property, copies of which are attached to the
summons. However from a
reading of the averments in paragraph [5] of the summons, and the
bonds themselves it is apparent that
at least two of these bonds
predate
the alleged underlying loan agreement, in that they were registered
on 27 August 1996 (Bond B66627/96) and on 11 June 2004
(Bond
B49882/2004) respectively, and contrary to the aforesaid averments
they could thus not have been registered ‘
pursuant’
to the aforesaid agreement.
[13]
Given
the circumstances I am as much at a loss as the defendant declared
himself to be, to understand on what basis the deponent
to the
verifying affidavit was thus able to state that he had read the
summons and annexed particulars of claim and could verify
the cause
of action and the indebtedness of the defendant to the applicant in
the amount and on the grounds stated in the summons,
and the
available documentary material to hand does not support such an
averment. In the circumstances, given the plaintiff’s
own
averment that it has been unable to locate even a copy of the alleged
original underlying loan agreement which was entered
into with the
defendant on 30 August 2007, and in the absence of even an
allegation that such agreement was entered into on
the basis of the
specimen agreement which was annexed to the particulars of claim, I
am surely unable to find that the deponent’s
positive
affirmation of the facts underlying the basis of the cause of action
in the verifying affidavit, is in the words of Swain
AJA in
Stamford
‘
sufficiently
reliable’
to justify the grant of summary judgment
[13]
.
[14]
In
my view this is effectively the end of the matter as far as the
plaintiff is concerned, as the application is defective for want
of
compliance with the formal requirements of rule 32(2) insofar as the
verifying affidavit is concerned. It is thus not necessary
to
consider the contents of the affidavit which the defendant has
lodged, resisting summary judgment. And although I heard argument
on
the merits of the defendant’s defence as set out in such
opposing affidavit I too am of the view, as Binns-Ward J
was in
Future
Indefinite
[14]
that it would be inappropriate to say anything about the defendant’s
defence which might influence the determination of the
matter at the
trial. It will suffice to point out that in his affidavit the
defendant denies that he entered into an agreement
with the plaintiff
as alleged in 2007, or an agreement in terms of the specimen standard
agreement as annexed, and he says that
he simply recalls applying for
a loan with the applicant ‘
around’
1996.
[15]
Although
it is trite that when considering the affidavit which is filed in
order to resist an application for summary judgment one
must
appreciate that it does not have to be formalised with the same
standard of precision required of a pleading
[15]
it is nonetheless still required to be of sufficient substance to
enable one to find that it adequately sets out a
bona
fide
defence to the plaintiff’s claim. However, given the
deficiencies in the verifying affidavit, and the general
unreliability
thereof as I have outlined above, it is in my view not
necessary for me to consider whether the defendant’s affidavit
is
sufficient for the purposes of resisting summary judgment as far
as the defences which are set out therein is concerned, and in
my
view the application must fail on the basis of non-compliance with
the provisions of rule 32(2).
[16]
In
the result I make the following order:
1.
The application for summary judgment is refused.
2.
The costs of the application shall be costs in the cause.
____________________
SHER AJ
[1]
1976 (1) SA 418
(A) at
423G.
[2]
Id
at 423D-E.
[3]
Binns-Ward
J in
Absa
Bank Ltd v Future Indefinite Investments 201 (Pty) Ltd and Ors
(WCD 20266/2015 delivered on 12 September 2016), at para [23].
[4]
In terms of rule
32(3)(b).
[5]
2010 (5) SA 112
(KZP) at
para [25].
[6]
[2014] ZASCA 79
(29 May
2014).
[7]
Id
at
para [11].
[8]
2014 (1) SA 475 (WCC).
[9]
WCD (20266/2015) decided
on 12 September 2016 at para [18].
[10]
Id
at para [18].
[11]
At para [14].
[12]
Although
various searches were concluded at ‘
Docufile,
Metrofile, and the applicant’s own storage facilities as well
as on the applicant’s computer systems where
the documents are
usually stored’
despite which ‘
all
copies thereof’
could not be traced
[13]
Stamford Sales
in
n5 at para [11]. Cited with approval in
Future
Indefinite Investments
at
para [15].
[14]
N9 at para [25].
[15]
Erasmus:
Superior
Court Practice
D1-382
ftnte 1 and the authorities cited therein.