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[2023] ZAGPJHC 992
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Nedbank Limited v George (2022/025492) [2023] ZAGPJHC 992 (1 September 2023)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NO: 2022/025492
NOT
REPORTABLE
NOT
OF INTEREST TO OTHER JUDGES
NOT
REVISED
01/09/23
In
the matter between:
NEDBANK
LIMITED
Applicant
and
BLAKE
ARTHUR GEORGE
Respondent
JUDGMENT
Delivered:
This judgment was handed down electronically by circulation to the
parties' legal representatives by e-mail. The date
and time for
hand-down is deemed to be 10h00 on the 1st of September 2023
[1]
This is an
application for summary judgment in terms of Rule 32.
[2]
In its
combined summons issued on 19 September 2022 (filed on caselines on
30 January 2023), the plaintiff claims the sum of R 256 069.15
with interest and special costs as well as an Order declaring
immovable property owned by the respondent to be specially executable
in terms of Rule 46 (1) (a) of the Rules.
[3]
Plaintiff’s
cause of action is founded upon an agreement of loan entered between
the parties and a first mortgage bond over
respondent’s
property securing the loan.
[4]
The defendant,
who appears in person, filed a notice to defend the action on 3
November and a plea on 29 November 2022.
[5]
In defendant’s
plea, he complains that the summons that was served on him was
materially deficient in that several parts of
the annexures relied on
by the plaintiff in its particulars of claim were omitted. He lists
the numerous paragraphs of the attachments
relied on by plaintiff
that were omitted from the version of the combined summons served on
him.
[6]
On 20 December
2022, the plaintiff filed an application for summary judgment. In
paragraph 6 of his affidavit, the plaintiff’s
representative
addresses the complaint made in defendant’s plea and states the
following:
“
In
a number of paragraphs, the defendant stated that pages of the
agreement, the mortgage bond and the distressed restructure agreement
was
[sic]
omitted.
It is not clear how this was possible but for completeness's sake,
the home loan agreement, the mortgage bond and the distressed
restructure agreement, properly referred to and relied upon in the
particulars of claim, are attached hereto as "A",
"B"
and "C".”
[7]
On 22 January
2023, defendant delivered his opposing affidavit in which he
reiterates (the pleaded complaint) that the original
summons served
on him was materially defective.
[8]
As appears
from the passage quoted above, the plaintiff has not made any attempt
to disprove the contention that service on the
defendant was
materially deficient, as claimed by him. The plaintiff could have
done so by presenting evidence from the Deputy
Sheriff’s
official who effected service on defendant or by other means, but no
evidence was put forward. Instead, the plaintiff
attempted to
“rectify” the problem by attaching the complete annexures
to its affidavit filed in support of summary
judgment.
[9]
Rule 32 (2)
(b) prescribes what a plaintiff is permitted to do in its affidavit
supporting summary judgment, namely:
“
The
plaintiff shall, in the affidavit referred to in subrule (2)(a),
verify the cause of action and the amount, if any, claimed,
and
identify any point of law relied upon and the facts upon which the
plaintiff’s claim is based, and explain briefly why
the defence
as pleaded does not raise any issue for trial.”
[10]
A plaintiff is
not permitted, in the prescribed affidavit filed in support of
summary judgment, to attempt to amend or supplement
material
deficiencies in the papers served on a defendant.
[11]
The question
at this stage of the proceedings is whether the defendant’s
complaint (which I am unable to reject on what is
before me)
establishes a
bona
fide
defence to the action.
[12]
In my view the
answer is in the affirmative and it follows that the application for
summary judgment must fail.
[13]
I direct the
costs to be in the cause.
[14]
I accordingly
issue the following Order:
a.
The
application for summary judgment is dismissed;
b.
The costs of
the application will be costs in the cause of the action.
C
H J BADENHORST
ACTING
JUDGE OF THE HIGH COURT
JOHANNESBURG
APPEARANCES
DATE
OF HEARING: 29 August 2023
DATE
OF JUDGMENT: 1 September 2023
APPLICANTS’
COUNSEL:
I
Oschman
[inge@impactlaw.co.za]
INSTRUCTED
BY:
BEZUIDENHOUT
VAN ZYL & ASSOCIATES INC.
[nadined@bvz.co.za]
RESPONDENT
IN PERSON