Absa Bank Beperk v Mbuli (3097/05) [2005] ZAGPHC 55 (16 May 2005)

Absa Bank Beperk v Mbuli (3097/05) [2005] ZAGPHC 55 (16 May 2005)

The court found that the respondent's alleged oral agreement with the bank did not amount to a pactum de non petendo, nor did it constitute a valid variation of the mortgage bond contract. The arrangement was aimed at varying installments and providing indulgence for non-payment, but there was no evidence that the bank undertook not to sue. The contract's non-variation clause required amendments to be in writing, and the respondent's actions, including cancelling cheques, did not demonstrate a waiver or suspension of the applicant's rights. The respondent failed to raise a triable issue sufficient to defeat summary judgment. Accordingly, summary judgment was granted, and the mortgaged...

Citation
[2005] ZAGPHC 55
Parties
Applicant: Absa Bank Beperk; Respondent: Reuben Johnson Mbuli
Court
High Courts - Gauteng
Jurisdiction
South Africa
Judgment Date
16 May 2005
Case Number
3097/05
Procedural Posture
Summary Judgment Application / Application for Summary Judgment
Outcome
Summary judgment granted in favour of the applicant. The mortgaged property is declared executable to pay the debt and interest.
Judges
JCW van Rooyen
Legal Topics
Summary Judgment, Mortgage Bond Enforcement, Oral Variation of Contract, Pactum De Non Petendo, Non Variation Clause
Civil Procedure Land and Property Summary Judgment Mortgage Bond Enforcement Oral Variation of Contract Pactum De Non Petendo Non Variation Clause

Case Brief

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Parties

Absa Bank Beperk

Applicant

Reuben Johnson Mbuli

Respondent

Procedural Posture

Summary Judgment Application / Application for Summary Judgment

Legal Issues

  1. 1 Whether the respondent's alleged oral agreement with the applicant constituted a pactum de non petendo suspending the applicant's right to sue.
  2. 2 Whether the oral arrangement amounted to a permissible variation of the mortgage bond contract in light of the non-variation clause.
  3. 3 Whether the respondent's affidavit raised a triable issue sufficient to defeat summary judgment.

Ratio Decidendi

The court found that the respondent's alleged oral agreement with the bank did not amount to a pactum de non petendo, nor did it constitute a valid variation of the mortgage bond contract. The arrangement was aimed at varying installments and providing indulgence for non-payment, but there was no evidence that the bank undertook not to sue. The contract's non-variation clause required amendments to be in writing, and the respondent's actions, including cancelling cheques, did not demonstrate a waiver or suspension of the applicant's rights. The respondent failed to raise a triable issue sufficient to defeat summary judgment. Accordingly, summary judgment was granted, and the mortgaged...

Court Disposition

Summary judgment granted in favour of the applicant. The mortgaged property is declared executable to pay the debt and interest.

Orders

  • The application for summary judgment is allowed with costs on the scale of attorney and client.
  • The immovable property mortgaged is declared executable to pay the debt of R609,327.19 plus interest at 11% per annum, calculated monthly and capitalized from 14 December 2004 to date of payment.