Absa Bank Ltd v Van Wyk

• Jurisdiction: South Africa
• Judge: B Mashile J
• Judgment Date: 06 May 2014
• Docket Number: 22948/2013
• Court: South Gauteng High Court, Johannesburg
• Hearing Date: 26 November 2013
• Citation: 2014 JDR 1014 (GSJ)

Mashile, J:

[1]

The parties entered into a loan agreement which was subsequently secured by the registration of a mortgage bond over the Respondent's immovable property being PORTION 1 OF ERF 250 BEDFORDVIEW

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Mashile J

EXTENSION 68 TOWNSHIP. When the Respondent experienced financial difficulties the parties agreed to enter into what they called a "Help-You-Stay" agreement whose main objective was to reduce the monthly instalments by 50%. The reduced instalments would however escalate at 10% every 6th month until the Respondent had financially recovered such that he could revert to his normal monthly instalments as per the mortgage bond.

[2]

The Respondent defaulted with his instalments under the new arrangement prompting the Applicant to institute an action against him claiming:

2.1

Payment of the sum of R2,609,570.88;

2.2

Interest on the sum of R2,609,570.88 at the rate of 8.50% per annum calculated and capitalised monthly in arrears, from 04 JUNE 2013 to date of payment, both dates inclusive;

2.3

An order declaring certain PORTION 1 OF ERF 250 BEDFORDVIEW EXTENSION 68 TOWNSHIP, REGISTRATION DIVISION I.R., PROVINCE OF GAUTENG, MEASURING 1761 (ONE THOUSAND SEVEN HUNDRED AND SIXTY ONE) SQUARE METRES, Held under Deed of Transfer T50825/07 specially executable;

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Mashile J

2.4

An order authorizing the Registrar of the above Honourable Court to issue a Writ of Attachment in respect of the Respondent's immovable property; and

2.5

Costs to be taxed on the attorney and client scale.

[3]

The Respondent defended the action and the Applicant, believing that the Respondent was defending solely to delay the matter, launched this summary judgment application. The Respondent has raised lack of personal knowledge of the deponent to the Applicant's affidavit in support of summary judgment as a point in limine. On the merits, he asserts that the loan agreement and the mortgage bond by which it was secured were novated by the "Help-You-Stay" agreement. It is under that novated agreement that the Respondent maintains that he is not in arrears with his instalments.

[4]

I have noted that notwithstanding that the answering affidavit makes no reference to a point in limine, Counsel for the Respondent has nonetheless raised it in his heads. Counsel for the Applicant too has despite noting that the point was not taken in the Respondent's papers addressed it regardless. I do not intend to dwell on the point in limine as I do not want to be detained with matters that were not raised in the founding papers.

THE DEPONENT'S LACK OF KNOWLEDGE TO SWEAR POSETIVELY TO THE FACTS, TO VERIFY THE CAUSE OF ACTION AND AMOUNT CLAIMED

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Mashile J

[5]

With the plethora of recent cases on the subject holding that a corporate employee in the same...