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[2011] ZAGPPHC 46
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Standard Bank of South Africa v Enslin NO ans Another (49339/2010) [2011] ZAGPPHC 46 (31 March 2011)
IN THE NORTH GAUTENG HIGH COURT,
PRETORIA
(REPUBLICOF
SOUTH AFRICA)
NOT
REPORTABLE
Case Number: 49339/2010
DATE: 31/03/2011
STANDARD
BANK OF SOUTH
AFRICA
.........................................................................
v
YVETTE
ENSLIN N.O.
The
trustee for the time being of Khimano trust (it
3830/00)
...............................
Defendant
VETTE
ENSLIN N.O
(The
Exucutrix of the estate of the late Daniel JohannesHendrik
Enslin
N.O.)
...............................................................................................................
Defendant
Coram
Sapirc AJ
JUDGMENT
This
is an application for Summary Judgement. The Plaintiff has issued a
Summons for the recover) of a building loan which it alleges
was made
to the Khimano Trust and for which one D J H Enslin stood surety.
This individual has died and the Defendant is his widow.
She is cited
in her capacity as executrix of the estate of her late husband and as
trustee for the time being of the Trust.
The
Defendant in both capacities has given notice of her intention to
defend the action. The Plaintiff in response applies for Summary
Judgement. Until a late stage no Affidavit in opposition to the
Application for Summary Judgement was filed but such an Affidavit
was
in fact filed on the 6th of January 2011. The Affidavit is attested
to by Yvette Enslin.
In
the Affidavit she raises a number of points. The first point so
raised is that the NC'A Compliance Certificate is attached to
the
Affidavit supporting the application for Summary Judgment. She points
out that this document is not part of the Summons and
cognisance
thereof cannot be taken. This objection is well taken as the
Plaintiffs cause of action is to be found complete in the
Summons
itself.
The
second point that is taken by her is that the Summons includes two
causes of action, one against the Trust and one against the
estate of
her late husband.
The
Affidavit in support of the application for Summary Judgement is
attested by one Kennedy who is the Manager of the Customer
Debt
Department of the Plaintiff. In the Affidavit he refers to "the
cause of action as stated in the Summons". The Application
for
Summary Judgement indicates that a judgment would be sought against
the Defendants jointly and severally. There are two causes
of action
in the Summons one against the First Defendant and one against the
Second Defendant. It is not clear which of the causes
of action is
verified.
The
mailer is clarified in the Affidavit as judgment is sought only
against the Khimano Trust and this point is therefore not decisive
as
far as the First Defendant is concerned.
It
ma\ he noted that a Draft Order was placed before the Court in which
judgment was sought against both Defendants jointly and
severally.
"The application did not justify an order against both
Defendants.
As
far as the Trust is concerned the point is made that the Trust is
under debt review in terms of the National Credit Act and that
the
action against it cannot on this ground proceed.
There
is no answer to this. It would therefore not be proper to grant
Summary Judgement against the First Defendant.
The
Application for Summary Judgement is therefore refused but the costs
are to be costs in the cause. The merits of the objection
to the
claim being enforced should be adjudicated speedily
The
order is as follows:
The application is dismissed.
Defendants
are given leave to defend.
(c)
The costs of this application are to be costs in the cause
(d)
The defendants are to tile their pleas within seven days, and the
plaintiff may approach the Deputy Judge President, to be allocated
an
early trial date
SAPIRE,
AJ
plaintiffs
counsel: Adv s M Maritz
…
...........................
Tel No: 012-424-4130
plaintiff's
attorneys: Haasbroek & Boezaart
…
............................
HB
Forum
...............................
1
3 stamvrug street val de grace.
…
............................
Pretoria
…
............................
Ref:
b van der merwe/s1 234/4348
Respondents'
'counsel:
Respondfnts-
Attorney Machobane kriel inc
…
.......................................
1
79 Lynnwood Road
…
.......................................
Brooklyn, Pretoria
…
........................................
ref:
H Kriel
…
........................................
Tel:
012 362 1678