Nedcor Bank Ltd v Hennop and Another
Jurisdiction | South Africa |
Citation | 2003 (3) SA 622 (T) |
Nedcor Bank Ltd v Hennop and Another
2003 (3) SA 622 (T)
2003 (3) SA p622
Citation |
2003 (3) SA 622 (T) |
Case No |
9864/2002 |
Court |
Transvaal Provincial Division |
Judge |
Patel J |
Heard |
July 1, 2002 |
Judgment |
February 5, 2003 |
Counsel |
B Neukircher for the plaintiff. |
Flynote : Sleutelwoorde F
Practice — Judgments and orders — Summary judgment — Plaintiff claiming payment of balance due and G owing in respect of moneys lent and advanced pursuant to mortgage bond registered over certain property, the balance being due and payable in terms of such mortgage bond by reason of defendants' failure to pay punctually instalments provided for in mortgage H bond — Mortgage bond not attached to summons and application for summary judgment — Court holding that claim based on liquid amount in money in respect of moneys lent and advanced and not on mortgage bond — Accordingly not necessary to attach copy of mortgage bond.
Practice — Parties — Summons — Summons not stating sex and marital status of second defendant, a female, I as required by Rule 17(4) of Uniform Rules — Position of married women having changed substantially by abolition of marital power in terms of ss 11 and 12 of Matrimonial Property Act 88 of 1984 — Reference to sex and marital status as required by Rule 17(4) outmoded and anachronistic — Such requirement offending equality provisions in s 9(1) and (3) of Constitution of the Republic of J
2003 (3) SA p623
South Africa Act 108 of 1996 — Requirement of no consequence in present time and omission to state woman's sex and A marital status not sufficient to render application for summary judgment fatally defective.
Headnote : Kopnota
The plaintiff had instituted action against the defendants for 'payment of the sum of . . . , 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' over B certain property. The summons alleged further that '(t)he 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 . . .'. There was no allegation in the summons as to the marital status of the second defendant, a woman, as required by Rule 17(4) of the Uniform Rules of Court. Upon the defendants entering an C appearance to defend, the plaintiff applied for summary judgment. Various defences were raised by the defendants, inter alia, (1) that the plaintiff had omitted to attach the mortgage bond to the summons and the application for summary judgment; and (2) that the application for summary judgment was fatally defective because the summons did not comply with Rule 17(4) of the Uniform Rules D requiring, in the case of second defendant, her sex and marital status.
Held, as to (1), that the attachment of the mortgage bond was required only when the plaintiff's claim was based on it. There was no need for the plaintiff to comply with the requirement to attach a copy of the liquid document unless the claim was based on a liquid document or the allegations contained in the summons prima facie disclosed that the claim was founded upon such a document. E (Paragraph [6] at 626A/B-B/C.)
Held, further, that it was explicit in the summons that the plaintiff's claim was based on a liquid amount of money in respect of moneys lent and advanced and not on the mortgage bond. It was, therefore, not necessary for the plaintiff to attach the bond since it had not been relied upon as a liquid document to found the plaintiff's claim. Defence (1) accordingly dismissed. (Paragraph [6] at 626C-D.) F
Held, further, as to (2), that the position of married women had changed substantially by the abolition of marital power in terms of ss 11 and 12 of the Matrimonial Property Act 88 of 1984. The reference to the second defendant's sex and marital status as required by Rule 17(4) was certainly outmoded and anachronistic and offended the equality provisions contained in the preamble and s 9(1) and (3) of G the Constitution of the Republic of South Africa Act 108 of 1996. (Paragraph [7] at 626G/H-I.)
Held, further, that in these enlightened times the omission to state in the summons the defendant's sex and, in the case of a woman, her marital status was of no consequence and was certainly not sufficient to render the plaintiff's application for summary judgment fatally defective. Defence (2) dismissed. (Paragraph [7] at 626I-J.) H
Held, further, the defendants' other defences having been dismissed, that summary judgment had to be granted as prayed. (Paragraph [9] at 627H/I.)
Cases Considered
Annotations
Reported cases I
Bank van die Oranje Vrystaat Bpk v OVS Kleiwerke (Edms) Bpk en Andere 1976 (3) SA 804 (O): dictum at 806D applied
Barclays National Bank Ltd v Love 1975 (2) SA 514 (D): dictum at 516 - 17 applied
Botha v W Swanson & Co (Pty) Ltd 1968 (2) PH F85 (C): applied
Carson and Others NNO v Spencer 1982 (2) SA 755 (T): referred to J
2003 (3) SA p624
Caxton Ltd v Barrigo 1960 (4) SA 1 (T): referred to A
Commercial Bank of Namibia Ltd v Trans Continental Trading (Namibia) and Others 1992 (2) SA 66 (Nm): dictum at 73H - 74A applied
Credcor Bank Ltd v Thomson 1975 (3) SA 916 (D): distinguished
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Mtshali and Others v Masawi and Others
...39; [1999] ZACC 17): referred to Naylor and Another v Jansen 2007 (1) SA 16 (SCA): referred to Nedcor Bank Ltd v Hennop and Another 2003 (3) SA 622 (T): referred to Northern Assurance Co Ltd v Somdaka 1960 (1) SA 588 (A): referred to Occupiers D of 51 Olivia Road, Berea Township, and 197 Ma......
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Mtshali and Others v Masawi and Others
...Herbstein & Van Winsen The Civil Practice of the High Court of South Africa (5 ed) at 145; and Nedcor Bank Ltd v Hennop and Another 2003 (3) SA 622 (T) para [60] Eg Shanike Investments No 85 (Pty) Ltd and Another v Ndima and Others 2015 (2) SA 610 (GJ) para 6; Fischer and Another v Persons ......
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McCain Frozen Foods (Pty) Ltd v Beestepan Boerdery (Pty) Ltd
...Gregory was really the person who should have made the founding affidavit because he was more intimately involved and by pointing out J 2003 (3) SA p622 what are alleged to be conflicts in the applicant's evidence. I have given careful attention and thought to these A arguments, but I am un......