About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: North Gauteng High Court, Pretoria
SAFLII
>>
Databases
>>
South Africa: North Gauteng High Court, Pretoria
>>
2010
>>
[2010] ZAGPPHC 175
|
|
ABSA Bank Limited v Silver and Another (4984/2010) [2010] ZAGPPHC 175 (4 June 2010)
NOT
REPORTABLE
IN
THE NORTH GAUTENG HIGH COURT
REPUBLIC
OF SOUTH AFRICA
Case
No: 4984/2010
DATE:
04/06/2010
In
the matter between:
ABSA
BANK
LIMITED
...............................................................................
Plaintiff
and
SILVER
J W
…...........................................................................................
I
st
Defendant
SILVER
M
…
...............................................................................................
2
nd
Defendant
JUDGMENT
SAPIRE.
A J:
This
is an application for Summary Judgment. The Summons commencing action
claimed payment of the sum of Rl 320 106,67 cents alleged
to be the
balance of monies due and owing by the Defendants to the Plaintiff as
at the 2"
d
of December 2009 in respect of monies lent and advanced by the
Plaintiff to the Defendants secured under four mortgage bonds viz
(a)
Mortgage Bond Number B60722/1990 for the sum of Rl 50 000,00
(b)
Mortgage Bond Number B18363/2002 registered in the Deeds Registry for
R420 000,00 and
(c)
Mortgage Bond Number B48912/2007 for R863 000,00 and
(d)
Mortgage Bond Number Bl 5713/1996 for the sum of R270 000,00.
All
the bonds were registered successively over immovable property being
Erf 766 Dowerglen Extension 3 Township.
The
Summons further alleges that the amount claimed is inclusive of
interests up to the 2
nd
of December 2009. The full amount is now due by reason of the
Defendants' failure notwithstanding demand to pay instalments on
due
date.
There
is a further allegation that the Plaintiff has complied with the
provisions of the
National Credit Act, No 34 of 2005
in particular
with the provisions of 129 and 130 of the said Act. A copy of the
Notice given in terms of
Section 129
is attached.
The
Summons was duly served on the two Defendants who gave Notice of
Intention to Defend and the present application for Summary
Judgment
was then initiated by Notice of Application for Summary Judgment.
The
claims made in the application are for the amount stated in Simple
Summons namely Rl 320 106,67, payment of interest and an
order
declaring the property mentioned executable. The Plaintiff also seeks
an order of costs on an attorney and client scale.
The
Application for Summary Judgment is supported by Affidavit attested
to by one Nazreen Schroeder who describes herself as a manager
of the
Plaintiff. She claims to have access to the books and accounts
relating to the Defendants facilities with the Plaintiff.
She says
she has in fact availed herself of such access on her computer.
This
she says makes the facts contained in her Affidavit matters of her
own personal knowledge and belief.
On
this basis she swears positively to the facts verifying the Plaintiff
s cause of action against the Defendant and especially
the amount
claimed She makes no reference to the mortgage bonds which are also
before the Court. One of the mortgage bonds namely
B60722/1990
secures an advance made by the United Building Society to the
Defendants. There is no allegation either in the Summons
or in the
Applicant's Affidavit explaining the connection between the United
Building Society and the Plaintiff.
Also
before the Court is a copy of a letter addressed to the Defendants
and a relevant registered letter certificate. The notice
given in
this letter relates to ABSA Bank as a creditor in respect of Bond
Account Number 59189247 which apparently relates to
766 Dowerglen
Extension 3. This is the property referred to in the Bonds.
Although
in the Summons mention is made of four Bonds only three are attached.
There is no copy of the Bond No B15713/1996 which
is referred to in
the Particulars of Claim which is referred to in the Summons. This in
itself would militate strongly against
the granting of Summary
Judgment.
The
manner in which the claim has been described makes it impossible to
ascertain how much is owing in respect of each of the Bonds
referred
to and as one of the Bonds from the allegations contained in the
Summons is not a debt owing to the
Plaintiff
nor has notice been given of any debt claimable by the United
Building Society.
The
Respondents who were the Defendants have filed an Affidavit opposing
the grant of Summary Judgment. The First Defendant who
is the
deponent to the Affidavit has incorrectly stated that the registered
slip refers to 13 Lukwart Avenue. Perusal of the Certificate
of
Posting reveals the incorrectness of the Defendants allegation. He
also claims that the Notice was addressed to him only. This
is
plainly incorrect. He claims further that no notice of the letter
came to his attention or that of the Second Defendant. She,
the
Second Defendant, has filed a Confirmatory Affidavit. The First
Defendant in his Affidavit observes that paragraph 1 of the
Simple
Summons relies upon three bonds. According to the First Defendant the
Summons relates to three bonds. This does not appear
to be correct.
I
have observed that the Summons refers to four bonds. The First
Defendant also points out that one of the Bonds has United Building
Society as the creditor. Clearly the Plaintiff cannot in the absence
of allegations indicating how the indebtedness owing to the
United
Building Society is now owing to the Plaintiff.
In
the Affidavit the First Defendant has stated that he and the Second
Defendant are over indebted and that they have approached
a debt
councillor for debt review in terms of
Section 86
of the Act. This
procedure appears to be current and incomplete.
The
Summons in this matter was however served on the Defendants on the
9
lh
of
February 2010 and the Plaintiffs claim is therefore not subject to
the debt review-procedure This notwithstanding in view of
the
confusion relating to the bond and the identity of one of the
creditors I am not disposed to grant Summary Judgement because
it is
impossible to ascertain the amount owing under each particular bond.
Leave
to defend is accordingly granted and costs will be costs in the
cause.
S
W SAPIRE
ACTING
JUDGE
ATTORNEYS
FOR THE PLAINTIFF:
HAMMOND
POLE MAJOLA
C/O
HENRY
OLTMAN ATTORNEYS
PRETORIA
Ref:
AHartman/872651/JB
COUNSEL
FOR THE PLAINTIFF:
Adv
Jacques Minnaar
High
Court Chambers
Tel:
012-303 7543
ATTORNEYS
FOR THE DEFENDANTS:
TAITZ
& SKIKNE
The
Rocbit House
8
Lake Road
Denlee
GERM1STON
SOUTH
Tel:
011-824 5444
Ref:
MrZimmerman/cm/33575
c/o
MORRIS POKROY I
s
Floor,
Waterhouse
Building 531
Fehrsen
Building
BROOKLYN,
PRETORIA
Ref:
Mr Pokroy/nvdh/PT
COUNSEL
FOR THE DEFENDANTS
Adv
L Coetzee
High
Court Chambers 928
Tel:
012 - 3037699