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[2010] ZAECPEHC 38
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Nedbank Ltd v Behr NO and Another (3361/2009) [2010] ZAECPEHC 38 (29 June 2010)
4
FORM A
FILING SHEET FOR SOUTH EASTERN
CAPE LOCAL DIVISION JUDGMENT
PARTIES
:
Case No:
3361/2009
In the
matter between:
NEDBANK
LIMITED
Plaintiff
and
JOSEPH
PHILLIP BEHR N.O
BRUNETTE
BEHR N.O
Being the
Trustees for the time being of the
BEHR
FAMILY TRUST, (1614/2000/3) Defendants
Case
Number
:
3361/2009
High
Court
:
EASTERN
CAPE, PORT ELIZABETH
DATE
HEARD:
26 January 2010
DATE
DELIVERED:
29
June 2010
JUDGE(S):
NEPGEN
J
LEGAL
REPRESENTATIVES –
Appearances:
For
the Plaintiff(s): Adv P Scott
for
the Defendant(
s):
Adv G Gajjar
Instructing
attorneys:
Plaintiff(s):
Boqwana, Loon & Connellan
Defendant
(s):
Messrs Burmeister, De Lange, Soni Inc
CASE
INFORMATION -
Nature
of proceedings
:
Civil
Matter
Topic:
………………………
Key
Words:
IN THE
HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE, PORT ELIZABETH)
Case No:
3361/2009
In the
matter between:
NEDBANK
LIMITED
Plaintiff
and
JOSEPH
PHILLIP BEHR N.O
BRUNETTE
BEHR N.O
Being the
Trustees for the time being of the
BEHR
FAMILY TRUST, (1614/2000/3)
Defendants
_____________________________________________________________________
JUDG
MENT
_____________________________________________________________________
NEPGEN,
J
[1]
The plaintiff, a
commercial bank, instituted action against the defendants as the
trustees of the Behr Family Trust (the Trust)
claiming payment of an
amount of R 891 157,40, which it was alleged represented the
balance of “the principal debt together
with finance charges
thereon” in respect of a loan it made to the Trust (although
the summons refers to the defendants).
This loan was secured by
mortgage bonds passed by the Trust in favour of the plaintiff. The
property over which the mortgage
bonds were passed is situated at 32
Smuts Drive, Vanes Estate, Uitenhage. The plaintiff further claimed
interest at the rate of
9.5% per annum on the aforesaid amount from 1
October 2009 to date of payment; costs of suit on the attorney and
client scale;
and an order declaring the aforesaid immovable
property executable. The defendants, in their aforesaid capacities,
entered appearance
to defend the action. The plaintiff then sought
summary judgment against the Trust. The application for summary
judgment was
opposed.
[2]
After hearing
argument I reserved judgment in this matter. After considering the
matter and deciding what order to make I commenced
preparing the
judgment. Before it was completed (although a portion thereof had
already been typed) the defendants’ attorneys
sent a letter to
the registrar in which it was stated, inter alia, that “(the)
property in question bonded to the plaintiff
has since been sold and
the outstanding amount settled in full”. Having received this
information I enquired as to whether
a judgment was still required,
as in the light of the settlement of the Trust’s indebtedness
to the plaintiff, the plaintiff
could not obtain judgment against
the Trust. The response that was received was that the question of
costs was still outstanding
and that my judgment “would have a
bearing on how the parties resolve the issue of the outstanding costs
between them”.
I assume this means that the question of the
costs of the action has not been finalised.
[3]
I have some
difficulty in understanding what the parties require of me. I cannot
give judgment against the Trust as the amount claimed
by the
plaintiff is no longer owed. To give a judgment as if the
indebtedness had not been settled is a purely academic exercise
and I
do not propose to do so. The conclusion which I had reached in this
matter was that I would grant the Trust leave to defend
the action
and make an order that the costs of the application for summary
judgment be costs in the cause. The latter order was
the one the
defendants’ counsel asked me to make.
[4]
The reason why I
decided the Trust should be granted leave to defend the action was,
briefly, that I did not agree with the argument
advanced on behalf of
the plaintiff that the documents annexed to the opposing affidavit
did not reflect the Trust as being part
of the debt review process.
The defendants, in their personal capacities, did not the owe the
plaintiff anything. It is clear,
however, that the indebtedness to
the plaintiff is reflected in the documentation annexed to the
opposing affidavits. There is
also the specific statement in the
opposing affidavit that the Trust was part of the debt review
process. In the circumstances
I was unable to conclude that the
plaintiff’s case was unimpeachable and that the defence raised
was bogus or bad in law.
[5]
Other than granting
the Trust leave to defend on the issue of costs, no order is made on
the application for summary judgment.
In so far as it is necessary,
I make an order that the costs of the application for summary
judgment are to be costs in the cause
of the main action.
J J NEPGEN
JUDGE OF THE HIGH COURT
For the plaintiff: Adv. P Scott instructed by
Boqwana, Loon & Connellan
For the defence: Adv. G Gajjar instructed by
Messrs Burmeister, De Lange, Soni Inc