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[2016] ZAGPPHC 1086
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Absa Bank Limited v Hembly (67598/2016) [2016] ZAGPPHC 1086 (14 December 2016)
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
Case
No: 67598/2016
14/12/2016
Reportable:
No
Of
interest to other judges: No
Revised
In
the matter between:
ABSA
BANK
LIMITED
Plaintiff
and
JOSEPH
HEMBLY
Defendant
JUDGMENT
HF
JACOBS, AJ:
[1]
This is an application for summary judgment brought by ABSA Bank
claiming cancellation of an instalment agreement in terms of
which
the defendant purchased from the plaintiff a C180 coupe Mercedes Benz
2012 model motor vehicle an order authorising the Sheriff
of the High
Court to attach, cease and hand over to the plaintiff the said
vehicle and costs of suit.
The
defendant delivered a notice of intention to defend on 3 October 2016
whereupon the plaintiff applied for summary judgment.
The application
for summary judgment was set down for hearing on 18 November 2016. On
that date the defendant appeared in person
and sought a postponement.
granted the postponement to 8 December 2016 directing the defendant
to file an answering affidavit before
the close of business on 2
December 2016 in support of his opposition of the application for
summary judgment. I also reserved
the issue of costs of 18 November
2016 to be determined on 8 December 2016.
[2]
The defendant duly delivered an opposing affidavit on 2 December
2016. The affidavit, excluding annexures, comprises 37 pages.
[3]
In his affidavit the defendant seeks condonation for the late filing
of his opposing affidavit. I am of the view that it is
in the
interest of justice that condonation should be granted. The defendant
argued the matter in person and submitted that the
application for
summary judgment should fail by reason of its extraordinary and
drastic nature. The defendant further challenged
the authority of the
deponent to the plaintiff's founding affidavit to represent the
plaintiff in the proceedings. The challenge
is in my view nothing
more than a bald denial of the deponent's (Mr Geyer's) authority to
represent the plaintiff.
[4]
The defendant further argued that insufficient information is stated
in the summons and what is attached thereto to justify
the
application for summary judgment. The defendant further refers to
provisions of the Banks Act, the Bills of Exchange Act and
a document
attached to his answering affidavit under the rubric
"International
Review of Financial Analysis'',
a document dealing with the new
securitisation regulations published by the Registrar of Banks and a
shareholders report of the
plaintiff as registered company in terms
of the Companies Act.
[5]
None of the documents or any of the facts deposed to by the defendant
address any defence in law to the plaintiff's claim.
[6]
In my opinion no
bona fide
defence is set out by the defendant
in his affidavit and that summary judgment must be granted as
claimed. therefore make the following
order:
ORDER
1.
Cancellation of the written contract between the
plaintiff and the defendant dated 5 October 2012 is confirmed;
2.
The Sheriff of the High Court is ordered and
authorised to attach, cease and hand over to the plaintiff the
vehicle being a 2012
Mercedes Benz C180 coupe A/T, engine number
27491030010865, chassis number WDD2043312F971868; and
3.
The defendant is ordered to pay the costs of the
application for summary judgment and the costs of the postponement of
18 November
2016.
_______________
H
F JACOBS
JUDGE
OF THE HIGH COURT
Date:
14 December 2016