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[2015] ZAGPPHC 153
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Absa Bank v Giacinti and Another (1720/15) [2015] ZAGPPHC 153 (2 April 2015)
IN
THE HIGH COURT OP SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
CASE NO: 1720/15
DATE: 2 APRIL
2015
NO REPORTABLE
NOT OF INTEREST
TO OTHER JUDGES
IN THE MATTER
BETWEEN:
ABSA
BANK
..............................................................................................................
PLAINTIFF
AND
P
GIACINTI
......................................................................................................
l
st
DEFENDANT
M
GIACINTI
...................................................................................................
2
nd
DEFENDANT
JUDGMENT
KUBUSHI,J
[1] This is an
application for summary judgment.
[2] The plaintiffs
claim against the 1
st
and 2
nd
defendants,
jointly and severally liable, the one to pay, the other to be
absolved, is for payment of the amount of R1 386 081,15.
[3] The amount
represents the balance of an amount lent and advanced as well as
agreed upon debits charged by the plaintiff to Moda
Tiles Fourways CC
(in liquidation) (the principal debtor), on a cheque account.
[4] The 2
nd
respondent (with the written consent of the 1
st
defendant)
bound their joint estate as surety and co-principal debtor for the
due fulfilment of the principal debtor’s obligations
towards
the plaintiff. As security for such debt the 1
st
and 2
nd
defendants registered three mortgage bonds in favour of the
plaintiff.
[5] The
aforementioned amount is due and payable by virtue of the fact that
the principal debtor failed to make payments as agreed
with the
resultant consequence that the full amount outstanding became due and
payable.
[6] The 1
st
and 2
nd
defendants having entered appearance to defend the
summons issued against them by the plaintiff, the plaintiff has now
applied
for summary judgment.
[7] The 1
st
and 2
nd
defendants are opposing the application for
summary judgment and have raised a number of technical defences.
Without going into
all these defences, it is my view that the summary
judgment application should be dismissed and the defendants be
granted leave
to defend this matter.
[8] My view is based
on the application itself, which is defective in that it does not
verify the cause of action against the defendants.
The plaintiffs
cause of action is based on surety signed by the 2
nd
defendant with the consent of the 1
st
defendant. The
surety binds the joint estate of defendants. However, the founding
affidavit refers to the 1
st
and 3
rd
defendants
instead of the 1
st
and 2
nd
defendants. It is
evident from the papers that there is no 3
rd
defendant
cited by the plaintiff. The contention by the plaintiffs counsel that
a case has been made against the 1
st
defendant is not
sustainable as well. This is so because the 2
nd
defendant
signed the surety binding the joint estate of the defendants. The 1
st
defendant consented to such surety, which, was signed by the
2
nd
respondent and not by the 3
rd
respondent.
[9] In the premises
I have to make the following order:
(a) The application
for summary judgment is dismissed.
(b) The 1
st
and 2
nd
defendants are granted leave to defend the action
against them.
(c) Costs are costs
in the main action.
E. M. KUBUSHI
JUDGE OF THE HIGH
COURT
APPEARANCES
HEARD
ON THE :
20
MARCH 2015
DATE
OF JUDGMENT :
02
APRIL 2015
APPLICANT'S
COUNSEL :
ADV.
ASL VAN WVK
APPLICANT'S
ATTORNEY:
TIM
DU TOIT ATTORNEVS
RESPONDENT'S
COUNSEL:
ADV.
WJ VAN WVK
RESPONDENT'S
ATTORNEY :
SNAIL
ATTORNEVS @ LAW