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[2007] ZAWCHC 84
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Absa Bank Ltd v Carinus and Others (13358/2006) [2007] ZAWCHC 84 (27 March 2007)
JUDGMENT
IN
THE HIGH COURT OF SOUTH AFRICA
(CAPE
OF GOOD HOPE PROVINCIAL DIVISION)
CASE
NO:
13358/2006
DATE: 27
MARCH 2007
In
the matter between
ABSA
BANK LTD Applicant
And
RENE
SUSANNA CARINUS 1
st
Respondent
JOHANNES
J P CARINUS 2
nd
Respondent
PETRUS
A M CARINUS 3
rd
Respondent
JUDGMENT
BOZALEK,
J
:
[1]
This is an application for summary judgment against
effectively
two respondents, a trust, which is cited as the three trustees in
their capacity as such. The second respondent is
one of the trustees
who is sued in his capacity as surety for the principal debt which
is an overdrawn bank account.
[2]
No opposing affidavit was filed and the only point taken by Mr
Verster
for the respondents is that the application for summary judgment in
the notice proper and the affidavit refers to an application
for
summary judgment against the respondent. Therefore there is no
certainty as to against which respondent the summary judgment
is
being sought, or which cause of action is relied on because two
inter related causes of action are involved and the affidavit
does
not specify which.
[3]
Ms
Forbes
argues that this is a technical defence, that it is clear against
whom the applicant is seeking summary judgment, namely both
respondents, and that this error should be condoned. She relies on
the case of
Standard
Bank South Africa Ltd v Roestof
2004(2) SA 492 (W) where the Court granted summary judgment in
circumstances where there was one defendant and the affidavit
or
application referred to "defendants".
[4]
It is a technical defence but equally it is trite law that the
summary judgment remedy is a far-reaching one and that the
provisions of the rule must be strictly complied with. One sees from
the papers in this matter that at an earlier stage there
was an
application for default judgment. There the plaintiff made it quite
clear against whom they were seeking default judgment,
namely first
and second defendants jointly and severally, the one to pay the
other to be absolved.
[5]
I have littJe doubt that an error was committed when the summary
judgment application and the affidavit were drafted, but
nonetheless
on any reading of those documents it is not clear whether the
application is brought against first or second respondent
and it
does not indicate that it is brought against both respondents.
[6]
Pn the circumstances, there has not been compliance with the
provisions of Rule 32 and, in my view, it is not open to this
Court
to condone the error by interpreting the affidavit or the
application more liberally so as to include both respondents.
[7]
In the circumstances, the applicant is not entitled to summary
judgment against either respondent. As far as costs are concerned,
there are indications that this may be the only defence raised by
the second respondent. If that is the case, I am not sure that
the
respondents would be entitled to their costs
r
I therefore propose to order that the trial Court will decide who
should bear costs.
Therefore
the order that I make is that the summary judgment application is
refused. Costs of this application are to stand over
for later
determination.
BOZALEK, J