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
>>
2011
>>
[2011] ZAFSHC 148
|
|
Standard Bank of SA Ltd v Louis Ferdinand Bantjies t/a Elcon Civils (1733/2011) [2011] ZAFSHC 148 (8 September 2011)
FREE
STATE HIGH COURT, BLOEMFONTEIN
REPUBLIC
OF SOUTH AFRICA
Case
No.: 1733/2011
In
the matter between:
STANDARD
BANK OF SA LTD
….............................
Applicant
and
LOUIS
FERDINAND BANTJIES t/a
ELCON
CIVILS
…...................................................
Respondent
JUDGMENT
BY:
MATHEBULA, AJ
HEARD
ON:
25 AUGUST 2011
DELIVERED
ON:
8 SEPTEMBER 2011
[1] This is an
application for summary judgment brought by the applicant against the
respondent. The applicant had issued summons
against the respondent
claiming
inter alia
payments of the sum of money, cancellation
of agreements and return of certain specified vehicles. There are in
total five claims.
The respondent is defending the claims.
[2] The applicant is
relying on an affidavit deposed by its Manager for Business
Recoveries, Personal and Business Banking Credit,
one Gerasimos
Callinicos. The relevant parts of the affidavit is paragraphs 2 and 4
which reads as follows:
“
2.
In my capacity as aforesaid I have access to and have perused and am
familiar with the records and documents pertaining to the
defendant’s
indebtedness and suretyship obligations to the Plaintiff.”
and
“
4.
I have read the summons issued by the plaintiff against the defendant
in the above matter and I verify the causes of action and
the amounts
claimed by the plaintiff.”
[3] The application is
opposed by the respondent and a detailed affidavit has been filed.
The crux of the opposition is that the
documents relied upon, were
not identified, indebtedness of the respondent to the applicant is
denied and that the descriptions
of the vehicles in the documents
relied upon do not match with the aforementioned documents. In
essence that the claims are not
based on liquid document or a
liquidated amount of money.
[4] Both counsels
submitted detailed heads of argument and I am indebted to them. Mr
Hefer submitted that all claims are liquidated
claims and that the
applicant satisfied the requirements of rule 32 of the Uniform Rules
of Court and that the application must
be granted. On the other hand,
Mr Burger submitted that the application was not in accordance with
the Uniform Rules of Court and
therefore defective. He also referred
to the documents relied upon by the applicant. In essence, it was his
view that the amount
claimed was not a liquidated amount.
[5] Rule 32 of the
Uniform Rules of Court reads as follows:
“
Where
a defendant has delivered notice of intention to defend, the
plaintiff may apply to court for summary judgment on each of
such
claims in the summons as is only:
on a liquated document;
of a liquidate amount in
money;
for delivery of
specified movable property; or
for ejectment.”
The relevant part of Rule
32(2) states the following:
“
Deliver
notice of application for summary judgment, together with an
affidavit made by himself or by any other person who can swear
positively to the facts
verifying
the cause of action and the amount if any, claimed. …
”
In the leading case of
CALTEX OIL (SA) LTD v CRESCENT EXPRESS (PTY) LTD & OTHERS
1967 (1) 466 D & C L at 468 E – F the court said the
following:
“
For
I am persuaded that the application must be refused for want of
compliance by the Plaintiff with Rule 32(2). Mr Broome acknowledges
that the claim is founded on a liquid document within the meaning of
Rule 32(1). The documents of 1
st
April 1964 ought to have been identified in the affidavit made by Mr
Barty as being those upon which Plaintiff founded his case.
…”
[6] I agree with Mr
Burger that the application is not in accordance with the Rule. The
documents have not been identified. As a
result of this fatal flaw
the application ought to be refused. Further, the threshold in
summary judgment is the disclosure of
the nature and grounds of the
defence and the facts relied upon. This defence must be both
bona
fide
and good in law. I am of the view that the respondent has
measured up to the threshold in this matter.
[7] As far as the costs
are concerned, I will depart from the rule that the costs follow the
result. The respondent requested that
the costs be the costs in the
cause.
[8] Accordingly, I make
the following order:
8.1 The application for
summary judgment is dismissed.
8.2 Costs is costs in the
cause.
_____________________
M. A. MATHEBULA, AJ
On
behalf of the applicant: Adv. J. J. F. Hefer
Instructed
by:
Lovius
Block Attorneys
BLOEMFONTEIN
On
behalf of the respondent: Adv. A. H. Burger SC
Instructed
by:
Botha
Hefer Inc.
BLOEMFONTEIN
/eb