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[2012] ZAGPPHC 319
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Firstrand Bank Ltd Trading Inter alia as FNB Home Loans v Anzel Trading 1002 CC and Others (965/10) [2012] ZAGPPHC 319 (28 November 2012)
NOT
REPORTABLE
NORTH
GAUTENG HIGH COURT, PRETORIA
CASE
NO: 965/10
DATE:28/11/2012
In
the matter between:
FIRSTRAND
BANK LIMITED trading inter alia As FNB HOME LOANS
…............
Applicant
(formerly
FNB OF SOUTHERN AFRICA LIMITED)
And
ANZEL
TRADING 1002
CC
.................................................................................................
1st
Respondent
ANNA
SOPHIA
FOURIE
........................................................................................................
2nd
Respondent
PAULO
GEORGE DA
SILVA
................................................................................................
3rd
Respondent
JUDGMENT
MSIMEKI.
J
INTRODUCTION AND BRIEF FACTS
[1]
The Applicant lent and advanced money to the First Respondent. The
Second and Third Respondents executed a deed of suretyship
in favour
of the Applicant and bound themselves in solidum, as sureties and
co-principal debtors, jointly and severally, with the
First
Respondent for and in respect of the First Respondent’s
aforesaid liability. The Respondents defaulted with their monthly
payments causing the Applicant to institute an action against them
claiming payment of the whole amount. The Respondents allege
that an
agreement was reached with one of the Applicant’s employees to
the effect that they, instead of paying the required
monthly
instalment, could pay R15.000.00. The Applicant disputes this. They,
in any event, did not pay the R15.000.00 regularly.
They, for
instance, did not pay all the time. This caused the Applicant to
bring an application for summary judgment as they, in
the meantime,
had entered appearance to defend the action. The Respondents filed an
opposing affidavit.
[2]
The Respondents disclosed that the property which was bought with the
money had only been needed for investment.
[3]
They contend that their tenants experienced financial problems which
caused them to fail to honour the agreement between them
and the
Respondents. This, in turn, caused the Respondents to default with
their payments.
[4]
It is contended on behalf of the Applicant that the agreement that
the
Respondents
allege to have concluded with the Applicant to pay R15.000.00 instead
of the full monthly instalment is very vague and
does not help them.
The agreement, it is contended on behalf of the Applicant, is in any
event denied. The further contention is
that the R15.000.00 seems to
have been covering the arrears only leaving the bond repayment
unattended to. It is submitted on behalf
of the Applicant that
nowhere was the alleged agreement reduced to writing. It is, indeed,
so.
[5]
The Applicant contends that the opposing affidavit does not comply
with Rule 32 (3) (b). The Respondents, in their affidavit,
have to
disclose that they have a bona fide defence to the action. The
opposing affidavit also has to disclose fully the nature
and grounds
of the defence and the material facts relied upon therefor. All this
means is that what the Respondents allege in the
affidavit must be
such that if it is proved at the trial, it will constitute a defence
to the Applicant’s claim. (Breitenbach
v Fiat SA (EDMS) Bpk
1976 (2) SA 227
(T)). The materia! facts in the affidavit, according
to the Applicant, are bald, vague and sketchy. I agree. Not much is
disclosed
about this agreement. There is also no consistency in the
payment.
[6]
The Mortgage Bond agreement in clause 27.1 provides:
“
this
bond, read in conjunction with the Grant of Loan Letter, constitutes
the entire ; agreement between the mortgagor and the Bank
and (save
as provided in this
Bond)
nothing at variance with the terms hereof shall be binding unless
reduced to
writing
and signed by or on behalf of the Mortgagor and the Bank”.
This, according to the Applicant, puts the matter to rest.
I agree.
The alleged agreement was never reduced to writing and never became
an agreement. The Respondents have also failed to
disclose a defence
to the Applicant’s claim.
There
is no reason why summary judgment should not be granted.
[7]
I, in the result, make the following order:
An
order is granted in terms of prayers 1,2, 3 and 4 of the Application
for summary judgment dated 17 March 2010.
MSIMEKI
M.W.
JUDGE
OF THE HIGH COURT NORTH GAUTENG HIGH COURT
Counsel
for plaintiff: Advocate X P Ellis
Counsel
for defendant: Advocate S.pX Malatii
Attorneys
for plaintiff: Fried Hart Solomhn & Ninolson
Attorneys
for defendant: Stuart Van Der Merwe Inc
Date
heard:30 April 2010
Date
of judgment: