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[2008] ZAFSHC 89
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First Rand Bank Limited v Smith (4752/2008) [2008] ZAFSHC 89 (4 September 2008)
IN THE HIGH COURT
OF SOUTH AFRICA
(ORANGE FREE STATE
PROVINCIAL DIVISION)
Case
No.: 4752/2008
In the
matter between:
FIRST
RAND BANK LIMITED
Applicant
and
JOHANNES
HENDRIK SMITH
Defendant
_______________________________________________________
HEARD
ON:
21 AUGUST 2008
_______________________________________________________
DELIVERED
ON:
4 SEPTEMBER 2008
_______________________________________________________
SUMMARY
JUDGMENT
_______________________________________________________
MOCUMIE J
[1]
The
applicant (plaintiff) instituted an action for summary judgment for
the payment of the amount of R839 619,55 plus interest
at the rate
of 14,20% per annum from 1 June 2008 to date of payment. The
applicant also seeks an order declaring the immovable
property
executable, namely Erf 278, Wesselsbron, district Wesselsbron,
Province Free State held under Deed of Transport No T12261/1999
and
costs of the suit on an attorney and client scale.
[2] The
claim arises from the defendant’s failure to effect payment of
the monthly installments on the dates as contemplated
in the
agreement between the parties.
[3]
The
defendant’s indebtedness to the plaintiff is not in dispute.
This, notwithstanding, the defendant avers that the application
is
premature and contrary to the provisions of the National Credit Act
34 of 2005 (“
the
NCA
”).
[4] The
defendant avers that on 7 December 2007 he issued a notice for an
application in terms of section 86 of the NCA in the
Magistrate
Court, Wesselsbron. The application will be heard on 3 October 2008.
Applicant is one of the parties.
[5] Rule 32 of the
Superior Court Rules of Practice provides that the defendant must
satisfy the Court by an affidavit that he
has a
bona
fide
defence to the action against the plaintiff. Such affidavit must
disclose fully the nature, grounds and the material facts relied
upon for the establishment of such defence. See
Gilinsky
and Another v Superb Launderers & Dry Cleaners
1978
(3) SA 807
(O) at 810A,
Maharaj
v Barclays National Bank (Pty) Ltd
1976 (1) SA 418
(A) at 426 B-D.
[6] What “
fully
”
in the context of Rule 32 means is not exactly the same in each and
every case. Each case will be determined on its own
merits. In
Caltex
Oil SA (Pty) Ltd v Webb & Another
1965 (2) SA 914
(N) at 916G the Court held that it is clear from all
the decisions that in applications of this nature, the Court does
not examine
the evidence presented by the defendant in order to see
whether there is a balance of probabilities that a defence will
succeed.
All that is required is that the Court should be satisfied
that the defendant has presented, where the defence is based upon
facts, all the material facts upon which his defence is founded and
that they appear to disclose a
bona
fide
defence. See too
Traunt
v Du Toit
1966 (1) 69 (O) at 70H-71.
I am in respectful
agreement with the above authorities.
[7] It is trite that the
defendant is not, at this stage, required to demonstrate the
correctness of the facts stated by him nor
does the Court at this
stage have to weigh up or decide disputed factual issues or to
determine whether or not there is a balance
of probabilities in
favour of one party or the other. The test as shown in different
cases is not whether the defence to be raised
is likely to succeed
or fail, but merely whether it is
bona
fide
.
See
Muller
and Others v Bophuthatswana Development Corporation Ltd
2003 (1) SA 651
(SCA) at 656.
[8] The defendant’s
case is that
8.1 the applicant acted
contrary to the provisions of the NCA in that he failed to notify
him in terms of section 129 prior to
issuing summons against him;
8.2 the applicant, being
a party in proceedings instituted in terms of section 86 of the NCA
for debt review the applicant should
not have brought this
application.
[9] To my mind, the
facts which the defendant relies on appear to disclose a
bona
fide
defence. It follows that the defendant has set up a
bona
fide
defence as to the plaintiff’s claim as required by R32 (3) so
as to avoid summary judgment. Needless to state that summary
judgment is a drastic remedy which holds serious consequences for a
defendant. At worst, it has the effect of shutting the Court’s
door on a defendant. It also allows a Court to grant judgment for
the plaintiff without hearing a defendant. Evidently such remedy
can
only be granted after careful consideration and where a Court is
satisfied that a defendant does not have a bona fide defence.
[15]
In
the circumstance I make the following order:
Application for
summary judgment is dismissed.
Defendant is
granted leave to enter an appearance to defend.
Costs will be costs
in the main action.
_________________
B. C. MOCUMIE, J
/em