Standard Bank of South Africa Ltd v Van Vuuren
| Judge | Van Rooyen AJ |
| Judgment Date | 18 February 2009 |
| Citation | 2009 (5) SA 557 (T) |
| Docket Number | 49747/07 |
| Hearing Date | 13 February 2009 |
| Counsel | S Maritz for the applicant. Z Schoeman for the respondent. |
| Court | Transvaal Provincial Division |
Van Rooyen AJ:
[1] This is an application for a summary judgment based on a mortgage bond for R1 655 363 against the respondent. The application was filed F on 4 December 2007. Respondent's payments had stopped at the end of 2006. This matter has been postponed eight times: 11 January, 14 April, 30 April, 30 May, 13 June, 15 September, 29 September 2008, 5 November and 24 November 2008, I heard the matter on 13 February 2009. The respondent opposed the granting of the summary judgment G on several grounds. On 25 January 2008 Hartzenberg J ordered that the summary judgment be postponed sine die, that respondent undertakes to pay the arrears within four weeks and to pay the monthly instalments on the due date and that, if he failed to comply, the applicant would be entitled to re-enrol the summary judgment application.
H [2] After having filed his first answering affidavit on 9 January 2008, the respondent filed five supplementary answering affidavits, on 23 January, 25 April, 13 June, 5 November and 24 November 2008. Mr Maritz, for the applicant, argued that it was impermissible for the respondent to simply have kept on filing supplementary affidavits without having I formally applied for condonation - see Joubert, Owens, Van Niekerk Ing v Breytenbach 1986 (2) SA 357 (T). Before I decide on her objection, it would be fair to summarise what the affidavit and supplementary affidavits of the respondent aver. I should observe that, although respondent did instruct an attorney, the reasoning in the affidavits has many flaws which are typical of a layman's view of the law and I accept J that he also drafted the affidavits. However, procedurally, I am inclined
Van Rooyen AJ
to be more tolerant of his attempts to explain the situation and that is A why, I believe, a court should lean over backwards to at least hear what he says, even if it is in six, rather repetitive, affidavits.
Affidavits of the respondent
[3] In the initial 9 January 2008 affidavit respondent states that the B purchase price was R750 000 and that this was the amount which the respondent had borrowed from the applicant. Respondent had also paid off in excess of R74 422 to the applicant. He attached a bank statement to substantiate this.
[4] In the 23 January 2008 supplementary statement respondent states C that he was advised by his attorneys to elaborate on his defence and also adds that the applicant had agreed to postpone the application to 25 January 2008. He now states that, although the purchase price was R750 000, the balance of the R1 500 000 was 'disbursed' by his [mortgage] attorney, against whom he was contemplating legal action for D the 'misappropriation' of this balance. He then also disputes the unsigned standard terms and conditions of the bond as attached to the summons. They were not agreed to and were also not referred to in the mortgage document. The reference to the standard terms in the summons is, accordingly, incorrect. E
[5] In the 25 April supplementary affidavit he states that he had never consented to the court order of 25 January 2008. The order states that he undertakes to pay the plaintiff the outstanding arrears of R222 379 within four weeks. He had discussions with his first attorney in this...
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