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[2010] ZAWCHC 448
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Absa Bank Ltd v Kardre Investment CC (13342/10) [2010] ZAWCHC 448 (20 August 2010)
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE HIGH COURT, CAPE TOWN)
CASE
NUMBER:
13342/10
DATE:
20
AUGUSTUS 2010
In
the matter between:
ABSA
BANK
LIMITED
…..........................................
Applicant
and
KARDRE
INVESTMENTS CC
…...........................
Respondent
U
D G M E N T
BAARTMAN,
J
:
[1]
This is an opposed application for summary judgment. The facts
relevant to this application appear from the record to be the
following:
The
Applicant's Version
(a)
Absa Bank ("the applicant") issued summons against the
defendant for the payment of R3 641 496,28 together with
interest at
a rate of 13% from 28 March 2009.
(b)
The applicant alleged that the debt arose from the respondent's
failure to have made payments in respect of mortgage loan
agreements. The applicant alleged that it and the respondent had
entered into the following mortgage loan agreements:
(i)
On
6 September 2005 at Roodepoort for R2 300 000
(ii)
On
11 March 2008 at Midrand for R1 000 000
(iii)
On
1 August 2008 at Pretoria for R200 000.
(c)
The applicant alleged that it lent and advanced the amounts to the
respondent. The respondent registered 3 mortgage bonds,
B103389/2005. B23553/2008 and B54283/2008, on 28 September 2005, 8
April 2008 and 28 August 2008, in favour of the applicant.
(d)
The applicant alleged that the respondent had failed to make
payments in respect of the mortgage loans and that it was indebted
in the amount stated above.
The
Respondent's version
[2]
The respondent's version appears from it's affidavit filed in
opposition to the summary judgment application to be the following:
"3.1.1.
None of the annexures attached to the summons nor the particulars of
claim make any reference as to when the amounts
lent and advanced
were to be repaid.
3.1.3.
The plaintiff attached three loan agreements and mortgage bonds to
the particulars of claim and I do not know in respect
of which of
the three the defendant is allegedly in default This renders the
summons vague and embarrassing and accordingly it
is excipiable
3.1.9.
The
particulars of claim in par. 13 merely say that the defendant did
not pay regularly but does say whether the defendant is
currently in
arrears.
Irregular
payments do not automatically mean that there are arrears Arrears
may very well have been brought up to date but the
particulars of
claim are silent in this regard making it difficult for the
defendant to respond meaningfully."
[3]
The respondent further alleged that the applicant never advised it
when the payments became due.
[4]
Rule 32(3)(b) provides that the respondent in summary judgment
proceedings may:
"Satisfy
the court by affidavit...of himself or any other person who can
swear positively to the fact that he has a
bona
fide
defence
to the action; such affidavit or evidence shall disclose fully the
nature and grounds of the defence and the material
facts relied upon
therefore."
[5]
In
Breitenbach
v Fiat SA (Edms) Bpk
1976(2)
SA 226 (TPD), the court said:
"...
all that is called for is that the statement of material facts be
sufficiently full to persuade the Court that what
the Defendant has
alleged, if it is proved at the trial, would constitute a defence to
the Plaintiff's claim. If the defence
is averred in a manner which
appears in all circumstances to be needlessly bald, vague or
sketchy, that would constitute material
for the Court to consider in
relation to the requirement of
bona
fides."
[6]
The purpose of summary judgment proceedings is to preclude a
defendant who does not have a
bona
fide
defence
to a claim from unnecessarily abusing the court's process by
delaying the matter.
"The
procedure is not intended to 'shut' (a defendant) out from
defending, unless it was very clear that he had no case in
the
action."
(See
Joob
Joob Investments v Stocks Mavuundla
2009(5)
SA
(1) (SCA).)
[7]
The respondent's counsel argued that the respondent should be
afforded the opportunity to proceed to trial where it could
prove:
"...
that no demand for payment was made nor was the Defendant advised of
when payment of instalments should commence."
[8]
It appears from clause 2 of the last loan entered into between the
parties that "the date of first payment was to be
advised..."
Clause 3.3 of the same agreement stipulates that instalments are
payable after registration of the mortgage
bond and that it would be
repayable in 240 monthly instalments over a 20 year period.
[9]
The respondent has not denied that the loans were in fact advanced
as alleged by the applicant nor that the bonds were registered.
In
my view, the respondent has not shown that it has a
bona
fide
defence
that is good in law.
Conclusion
[10]
For reasons stated above, I make the following order:
(a)
Summary judgment is granted in terms of prayers 1, 2, 3 and 4 of the
application.
BAARTMAN,
J