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[2010] ZAGPPHC 546
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First Rand Bank Limited v Du Plessis and Others (39986/2009) [2010] ZAGPPHC 546 (11 June 2010)
NORTH
GAUTENG HIGH COURT
(PRETORIA)
Case No:
39986/2009
Date: 11 February
2010
FIRST
RAND BANK
LIMITED
..........................................................................................................
Plaintiff
and
TJAARD
DU
PLESSIS
..............................................................................................................
First
Defendant
EMELDA
DU
PLESSIS
........................................................................................................
Second
Defendant
BERNHARD
JENS DU
PLESSIS
...........................................................................................
Third
Defendant
JUDGEMENT
SAP1RE
A J
:
The Plaintiff
instituted action against the three defendants claiming repayment of
monies lent in advance. The loan was secured
by a mortgage bond, a
copy of which is attached to the Summons.
The amount claimed
is R 948 299,87. The Plaintiff further claims interest on this amount
at the agreed rate of 9.9 % per annum from
the l
sl
of June
2009 to the date of payment.
The Plaintiff
further claims an order declaring immovable property fully described
in the Summons and in the Notice of Application
for Summary
Judgement. The Defendants, the Plaintiff claims are to pay the costs
of the suit.
Attached to the
Summons are all the relevant documents. The Summons was duly served
on the Defendants who have given notice of intention
to defend. In
response to such Notice the Plaintiff has applied for summary
judgment which application was originally set down
for Wednesday the
14
th
of October 2009. The Defendants have not
filed any Affidavits.
When the matter came
before Kemp, AJ the matter was postponed to the 9
th
of December 2009 and there is a note on the court file that the
Defendants were ordered to pay the costs of that hearing.
The matter came
before me on the 9
th
of December 2009 and was
stood down until Friday the 11
th
of December 2009. On the
Friday when the matter was called there was no appearance and I made
an order that the matter would be
postponed to the 31
SI
of
December 2009 and for the Defendants to file their Affidavits. Later
in the day both counsel appeared before me and at their
request I
recalled the order and heard argument from the Defendants’
counsel.
As previously stated
the Defendants did not file any Affidavit and the point raised was
that although it was alleged in the Summons
that the Plaintiff had
complied with the provisions of Section 129 of the National Credit
Act it appeared from the documents filed
that only one such notice
was in fact sent. Accordingly the provisions of Section 129 of the
Act had not been complied with because
there were three of them and
notice to one did not suffice. This argument cannot be sustained. The
Notice which was sent was addressed
to all three of the Defendants
and posted or delivered to the domicilium citandi et exetudandi
chosen by all of them.
The Notice itself
although a single document was addressed to all three of the
Defendants who are joint and severally principal
debtors in respect
of Plaintiffs claim.
The argument raised
by the Defendants is therefore specious and is not a reason for
refusing summary judgement.
This view is
strengthened by the failure of the Defendants to file Affidavits
denying receipt of the Notice.
I
therefore
grant Summary Judgement in terms of prayers 1, 2, 3 and 4 of the
Notice of Application for Summary Judgement.
SW SAP1RE
ACTING JUDGE AT
THE NORTH GAUTENG HIGH COURT
PRETORIA