Nedcor Bank Ltd v Hennop and Another

• Judge: Patel J
• Judgment Date: 05 February 2003
• Citation: 2003 (3) SA 622 (T)
• Docket Number: 9864/2002
• Hearing Date: 01 July 2002
• Counsel: B Neukircher for the plaintiff. J H Wildenboer for the defendants.
• Court: Transvaal Provincial Division

Patel J:

[1] The plaintiff claims summary judgment against the defendants. It based its claim upon the following averments G contained in its simple summons:

'1.

Payment of the sum of R1 705 860,22, being the balance due and owing in respect of moneys lent and advanced by the plaintiff to the defendants pursuant to certain mortgage bond registered as H first mortgage bond over portion 12 of farm 493 Kalkheuwel. The aforementioned sum being due and payable in terms of the said mortgage bond by reason of the defendants' failure to pay punctually the instalments as provided for in terms of the said mortgage bond, notwithstanding demand; I

. . . .'

[2] The cause of action set out in the summons is verified in an affidavit filed by the plaintiff. It is deposed to by Abri Jacobs. He describes himself as the manager of the plaintiff's mortgage legal department. He states he has personal knowledge of the matter. In para 2 of the affidavit he states: J

Patel J

'I accordingly verify the cause of action as set out in the summons and confirm that the defendants are indebted to the A plaintiff in the amount of R1 705 860,22 together with interest thereon at the rate of 15% per annum from 1 March 2002 to date of payment and costs as on the grounds stated in the summons.'

Mr Jacobs opined in para 3 of the affidavit that the defendants have no bona fide defence to the action and their notice of intention to defend was delivered solely for the purposes of delay. B

[3] The defendants' attorney of record, Lance Friedman, filed an affidavit resisting summary judgment. It is accompanied by a confirmatory affidavit deposed to by Gary Brian Charter, who describes himself as 'an adult male businessman'. In para 2 of the affidavit deposed to by Lance Friedman, he states: C

'I act herein on behalf of the first and second defendant (sic) who have, through the agents (sic) Gary Charter authorised me to act on their behalf. The first and second defendants are presently unaware of the application brought by the plaintiff for the grant to it of summary judgment against them. . . .'

[4] Ms Neukircher, in the plaintiff's written heads of argument, alluded to the fact that on the defendants' version they D were unaware of the summary judgment application brought against them, but she did not pursue this aspect in her oral submissions on behalf of the plaintiff. However, in suitable circumstances, the defendants' attorney may depose to an opposing affidavit on a proper authorisation by the defendants. This would apply in circumstances in which the E defence is a purely legal one. It is apparent that the defences raised by the attorneys on behalf of the defendants are substantially of a legal and technical nature rather than of a factual nature.

[5] The...