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[2017] ZAGPPHC 348
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Investec Bank Limited v Van heerden and Others (17890/2010) [2017] ZAGPPHC 348 (13 March 2017)
IN
THE REPUBLIC OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
LOCAL
DIVISION,
PRETORIA)
CASE
NO: 17890/2010
DATE:
13/3/2017
INVESTEC
BANK
LIMITED
APPLICANT
and
ANTHEA
PHOEBE-JANE VAN HEERDEN 1
ST
RESPONDENT
1ZAK
ALBERTUS VAN
HEERDEN
2
ND
RESPONDENT
AFRIKINGS
(PTY)
LTD 3
RD
RESPONDENT
NEW
INVEST 263 (PTY)
LTD 4
TH
RESPONDENT
JUDGMENT
KHUMALO
J
INTRODUCTION
[1]
This is an application for Judgment in terms of Rule 31 of the
High Court Rules. The Applicant is reliant upon a confession of
Judgment
that was signed by the 1
st
, 2
nd
and
4
th
Respondents on 17 March 2014 pursuant
Applicant instituting an action against them in 2010.
[2]
The Respondents were assisted by their attorney a Mr A J
Benecke ("Benecke"), who also appended his signature on the
confession
document. Paragraph 5 of the confession reads:
"We
agree that should we default in respect of any of the obligations of
the Defendants to the Plaintiff, as set out herein,
such default
shall be certified by a Manager of the Plaintiff and in that event
the Plaintiff shall be entitled to apply in writing
through the
Registrar to a Judge for judgment to be granted according to this
confession for the full outstanding balance then
due and payable as
applicable,
if the Plaintiff
has
given
notice
in
writing
of
such
application
for
judgment
to
our
attorney
of
record
whose
particulars
appear
hereunder
and
the
amount
remains
unpaid
for
seven
(7)
days.''
[3]
The Applicant attaches a supporting affidavit deposed to by a
Ms N B Moatshe, the Applicant's attorney of record alleging that the
attorney who witnessed the signatures of the Defendants is Bennecke
of the firm Hills Incorporated acting on behalf of the Respondents.
To substantiate the allegation a Notice of Intention to defend the
action delivered by the Respondents in the matter is attached
as
Annexure "B".
[4]
In terms of Annexure "B" signed on 3 May 2010, the
Respondents appointed Gerhard Botha & Partners Inc as their
attorneys
of record, Care/of S Roux Inc who are situated at office
2/201, Office Park no 2 Top Floor, Cnr Oliphant's & Steenbok
Streets,
Monument Park in Pretoria. A J Bennecke/ llr/HJ264/10 is
mentioned as a reference. There is no Notice of withdrawal by Gerhard
Botha & Partners or a Notice of Appointment by Hills Incorporated
not been.
[5]
The Applicant has given notice of its Application to Attorneys
Hills Incorporated who are situated at 835 Jan Shoba Street,
Brooklyn,
Pretoria, reference AJ Bennecke/idb/JB210/12 without any
explanation.
[6]
As a result the Application cannot be considered until there
is compliance with the terms of the confession.
____________________
NVKHUMALO
J
JUDGE
OF THE HIGH COURT
GAUTENG
DIVISION, PRETORIA
For
the Applicant:
VDT
ATTORNEYS INC
Tel:
012 452-1314
Fax:
086 758 5328
Ref:
Cvav Eetveldt/AVDB/INVl0/0046 (MAT1486)