Nedbank Ltd v Volschenk (26/2009) [2009] ZAECPEHC 4 (10 March 2009)

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[2009] ZAECPEHC 4
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Nedbank Ltd v Volschenk (26/2009) [2009] ZAECPEHC 4 (10 March 2009)

FORM A
FILING SHEET FOR EASTERN CAPE
HIGH COURT, GRAHAMSTOWN JUDGMENT
PARTIES
:
NEDBANK LIMITED
Applicant/Plaintiff
And
TANIA VOLSCHENK
Respondent/Defendant
Registrar:
Case No.: 26/2009
Magistrate:
High
Court:
EASTERN
CAPE HIGH COURT, GRAHAMSTOWN
DATE
HEARD:
3 March 2009
DATE
DELIVERED:
10 March 2009
JUDGE(S):
TSHIKI AJ:
LEGAL
REPRESENTATIVES –
Appearances:
for
the Appellant(s):
Adv N.J.
Mullins
for
the Respondent(s):
Adv D. Smith
Instructing
attorneys:
Appellant(s):
Joubert
Galpin Searle Inc
Respondent(s):
JR Bester & Associates
CASE
INFORMATION -
Nature
of proceedings
:
IN THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE, PORT ELIZABETH)
Case
No.: 26/2009
Date
delivered: 10.03.2009
In the matter between:
NEDBANK LIMITED
Applicant/Plaintiff
and
TANIA VOLSCHENK
Respondent/Defendant
J U D G M E N T
TSHIKI AJ
:
(A) INTRODUCTION
The plaintiff, who is the applicant
has sued the respondent, the defendant in the main action for the
payment of a sum of R1,820,000.00
(one million eight hundred and
twenty thousand rand only) together with interest and costs. When
the defendant entered an appearance
to defend, the plaintiff brought
an application for summary judgment. In his opposing affidavit
filed on behalf of the defendant,
no defence was offered to the
plaintiff’s claim and the material allegations in the particulars
of claim were not denied.
Instead the defendant has resisted the
application for summary judgment on the grounds that in the
affidavit supporting the
application for summary judgment the
deponent only verifies the cause of action without specifying which
cause of action is verified.
The defendant further denied the
correctness of the amount claimed by the plaintiff but has not
denied that he owes the plaintiff
the amount claimed. According to
him it is not possible for him to attack the exact calculation of
the amount by the plaintiff
since the plaintiff’s particulars of
claim do not set out how exactly the amount was calculated.
(B) NON COMPLIANCE WITH RULE
32(3)(a) OR (b)
The defendant’s resistance for the
plaintiff’s application for summary judgment is not clear. It
also does not appear to
comply with the provisions of Rule 32(3)(b)
which provides that:
“
(3)
Upon hearing of an application for summary judgment the defendant
may―
.
. . . .
(b)
satisfy
the court by affidavit (which shall be delivered before noon on the
court day but one preceding the day on which the application
is to be
heard) or with the leave of the court by oral evidence of himself or
of 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 therefor.”
The defendant’s affidavit is silent
about the
bona fide
defence to which he ought to disclose in terms of rule 32(3)(b)
above.
Mr Smith
who appeared for the defendant has conceded, quite correctly in my
view, that the defendant has disclosed no
bona
fide
defence to the
plaintiff’s claim. There is not even an attempt by the defendant
to disclose any form of defence to the plaintiff’s
claim. His
opposition to the plaintiff’s claim does not comply with the
provisions of Rule 32(3)(a) or (b) of the Rules of
this Court.
There is no valid basis why the
defendant has resisted the plaintiff’s application for summary
judgment. Without full disclosure
of the material facts upon which
the defendant relies in his defence to the plaintiff’s claim it
cannot be said that the defendant
has satisfied the requirements of
the sub rule. He has not even made an attempt to comply with Rule
32(3)(b). The grounds
which he has raised cannot assist him in
resisting the granting of the summary judgment.
In the result I am not persuaded that
the summary judgment should not be granted.
I therefore making the following
order:
[8.1] Judgment is hereby granted
against the defendant on behalf of the plaintiff in the sum of
R1,875,478.88.
[8.2] Payment of interest on the
amount of R1,867,344.45 at the plaintiff’s prime overdraft rate
from time to time less 2,25%
calculated on a daily basis and
capitalised monthly in arrears from 13 November 2009 to date of
payment.
[8.3] That the property being erf 1223
Jeffreys Bay is declared specially executable.
[8.4] That the defendant is ordered to
pay the costs of suit on an attorney and client scale.
____________________________
P.W. TSHIKI
JUDGE OF THE HIGH COURT (ACTING)
Date case heard - 3 March 2009
Date judgment delivered - 10 March
2009
For the applicant - Adv N.J. Mullins
Instructed by
Joubert Galpin Searle Inc
173 Cape Road,
Mill Park
Port Elizabeth
For the respondent - Adv D. Smith
Instructed by
JR Bester & Associates
70 Worraker Street
Newton Park
Port Elizabeth