About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Free State High Court, Bloemfontein
SAFLII
>>
Databases
>>
South Africa: Free State High Court, Bloemfontein
>>
2013
>>
[2013] ZAFSHC 69
|
|
Nedbank Ltd v Botha and Another (99/2013) [2013] ZAFSHC 69 (9 May 2013)
FREE STATE HIGH
COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Case No.:99/2013
In the matter between:
NEDBANK LIMITED
.....................................................................
Applicant
and
WERNER LE ROUX
BOTHA
..............................................
1
st
Respondent
(Identity Number: )
SANDRA BOTHA
...............................................................
2
nd
Respondent
(Identity Number: )
_______________________________________________________
JUDGMENT BY:
LEKALE, J
_______________________________________________________
HEARD ON:
25 APRIL 2013
_______________________________________________________
DELIVERED ON:
9 MAY 2013
_______________________________________________________
INTRODUCTION AND
BACKGROUND
[1] On the 9
th
January 2013 the applicant issued simple summons against the
respondents for recovery of an amount of R962 397,57 on,
inter
alia
, the basis that they failed to pay the instalments payable
regularly and punctually and that an order of debt restructuring
granted
in their favour has been set aside.
[2] The respondents
entered appearance to defend the action on the 21
st
January 2013, whereafter, the applicant filed an application for
summary judgment on the 7
th
February 2013 for hearing on
the 28
th
February 2013.
[3] On the 26
th
February 2013 the respondents filed an affidavit opposing summary
judgment pointing out, in
limine
, and enclosing documents
showing,
inter alia
, that the debt restructuring order was
still in place and that the applicant received a total payment of
R149 940,72 in terms
thereof between January 2011 and December
2012. The respondents, further, dispute the outstanding balance and
aver that, to the
best of their knowledge, all further payments are
up to date.
[4] On the 28
th
February 2013 the application was postponed and the respondents were
ordered to file an application for condonation of the late
filing of
their opposing papers with a concomitant order for the applicant to
file a reply if so advised.
[5] The parties have
since obliged with the respondents,
inter alia
, grumbling
that, in their view, there exists no necessity for condonation
because rule 32 of the Uniform Rules of Court (“the
Rule”),
which regulates the application in the instant matter, does not
prescribe time periods within which an opposition
to an application
for summary judgment may be delivered.
[6] In opposing the
condonation application the applicant, effectively, maintains that
condonation is necessary in terms of Practice
Rules of this court and
that the respondents have no reasonable prospects of success in their
opposition of the summary judgment
application.
[7] This judgment,
therefore, concerns the respondents’ application for
condonation of the late filing of their opposition
to summary
judgment.
ISSUES IN DISPUTE
[8] The papers before me
ante omnia
raise, for determination, the issue as to whether
or not the affidavit opposing summary judgment was filed late so as
to necessitate
a condonation application.
[9] The parties are,
further, in dispute over whether or not the respondents’
opposition of the summary judgment application
has merit.
RESPONDENT’S
CONTENTIONS
[10] Mr Grewar submits
that the Rule does not prescribe the time limits for filing
affidavits in opposition of summary judgments.
[11] It is, further,
submitted that the delay involved, in any event, was negligible in so
far as the opposing affidavit was filed
two days before the date
scheduled for the hearing of the summary judgment application.
[12] Mr Grewar, further,
contends that although there are arrears on payments made to the
applicant, the respondents dispute the
outstanding balance and, as
such, they have a triable issue which entitles them to have their day
in court. Condonation should,
therefore, in his view be granted to
the respondents as well as leave to defend the matter.
APPLICANT’S
CONTENTIONS
[13] Mr Van Aswegen
submits for the applicant that Practice Rule 7.2 of the Free State
Court requires that affidavits and all other
documents in, inter
alia, the application for summary judgment be filed on a Friday
immediately before the date on which the application
is to be heard.
[14] It is, further,
submitted that the condonation application has no merit in so far as,
on the respondents’ own version,
it is clear that they are in
default with regard to their payments as ordered by the court.
[15] It is, furthermore,
contented that the certificate of balance is clear and acceptable
evidence of the outstanding balance.
[16] The applicant’s
case is, further, that it is entitled to proceed against the
respondents in terms of section 88(3) of
the National Credit Act, 33
of 2005 (“the NCA”) because the respondents have
defaulted on the debt re-arrangement order
and are also in default
under the credit agreement.
APPLICABLE LEGAL
PRINCIPLES
[17] It is correct, as
submitted for the applicant, that the Free State Practice Rule places
a limit on the filing of affidavits
and documents intended for use in
the motion court in so far as it requires the same to be filed before
noon on a Friday preceding
the relevant Thursday on which the
documents are to be used. (
See Practice Rule 7.2 of Free State
Court.)
[18] As pointed out for
the applicant, a certificate of balance is admissible in summary
judgment proceedings under the Rule and
“…
it
is merely
arithmetical
calculation based on
the facts already before the court.”
(See
Rossouw
and Another v F
irst
Rand Bank Limited t/a FNB Homeloans (formerly First Rand Bank of
South Africa Ltd)
2
010
(6) SA 439
(SCA) at para [47].
[19] It is, further,
correct, as Mr Van Aswegen submits, that a credit provider, in the
position of the applicant, is entitled to
enforce its rights under
the credit agreement without further notice to the consumer where the
latter is in default under the credit
agreement as well as in terms
of a re-arrangement ordered by a court. (See
First Rand Bank
Limited v Fillis and Another
2010 (6) SA 565
(ECP) and
Collett v First Rand Bank Limited
2011 (4) SA 508
(SCA).)
APPLICATION OF
LEGAL PRINCIPLES AND FINDINGS
[20] It is clear from the
papers that the opposing affidavit was not filed on a Friday
preceding the 28 February 2013 but was, in
fact, filed on the Tuesday
preceding that date. There was a delay involved in that regard and it
was, as such, necessary for the
respondents to apply for condonation.
[21] To the extent that
the respondents insinuate that the Free State Court has no business
to regulate timeframes for opposing
applications for summary
judgment, I can only point out that the Judge President of this court
is authorised to make rules for
regulating proceedings of this court
with reference to,
inter alia
, the times for the holding of
the courts.
(See section 43 of the Supreme Court Act 59 of 1959.)
[22] It is, probably,
because the Rule herein does not regulate opposition to summary
judgments adequately with regard to timeframes,
that Free State
Practice Rule 7.2 was made.
[23] Mr Van Aswegen
correctly submits that the delay involved has not been adequately
explained regard being had to the fact that
the application for
summary judgment was served on the 7 February 2013 and consultations
with counsel only took place on the 20
th
February 2013,
while opposing papers were only filed on the 26 February 2013 instead
of before noon on the 22 February 2013. No
explanation is advanced as
to why consultations only took place on the 20
February
2013. The date on which counsel was briefed as well as the date on
which the documents were secured is not apparent
ex facie
the
condonation application.
[24] I am, further, not
persuaded that the respondents have reasonable prospects of success
in their opposition of summary judgment
in so far as the parties
agreed, in the loan agreement, that a certificate of balance is
binding on the respondents and constitutes
prima facie
proof
of,
inter alia
, the extent of their indebtedness to the
applicant. It is, further, common cause between the parties that the
respondents are in
default with payments of monthly instalments.
[25] It is, further,
clear from the opposing papers that the certificate of balance is,
most probably, correct regard being had
to,
inter alia
, the
amount paid by the respondents to the applicant between January 2011
and December 2012 on their own version.
[26] The applicant is,
therefore, entitled to follow the respondents legally to enforce its
claim in terms of section 88(3) of the
NCA.
[27] The applicant no
longer seeks an order declaring the mortgaged property specially
executable.
ORDER
[28] The application for
condonation is, thus, dismissed with costs.
[29] Summary judgment is
granted against the respondents jointly and severally in terms of
prayers 1.1, 1.2, 1.4 and 2 of the application
for summary judgment.
______________
L. J. LEKALE, J
On behalf of applicant:
Adv. W. A. van Aswegen
Instructed by:
McIntyre & Van der
Post
BLOEMFONTEIN
On behalf of respondents:
Adv. D.M. Grewar
Instructed by:
Jordaans Rijkheer
BLOEMFONTEIN
/eb