Absa Bank Limited v Dolley N.O. and Others (3879/2012) [2015] ZAECPEHC 69 (29 January 2015)

SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in compliance with the law and SAFLII Policy

IN THE HIGH COURT OF SOUTH AFRICA

(EASTERN CAPE – PORT ELIZABETH)

CASE NO.: 3879/2012

DATE: 29 JANUARY 2015

In the matter between:

ABSA BANK LIMITED........................................................First Applicant

And

ANESE DOLLEY N.O., in her capacity as

Trustee for the time being of the A D TRUST,

IT880/2001..........................................................................First Respondent

ABARSHEIYA Mc BEAN N.O., in her capacity as

Trustee for the time being of the A D TRUST

IT880/2001.....................................................................Second Respondent

ANESE DOLLEY

Identity Number: [6………..].........................................Third Respondent

JUDGMENT – APPLICATION FOR LEAVE TO APPEAL

BESHE, J:

[1] On the 13 May 2014 I granted summary judgment against the applicants for inter alia payment of R2 798 177. 27 with interest thereon, costs of suit as well as an order declaring certain property situated as 3341 Summerstrand executable.

[2] The applicants who were respondents in the matter seek leave to appeal against my judgment as aforementioned.

[3] The granting of the summary judgment was opposed on the basis that:

(i) Applicant was not the owner of the debt as the debt has been securitized.

(ii) Applicant has failed to annex a copy of the Loan Agreement to the application as required in terms of Rule 32 (2).

[4] In my judgment, I addressed both aspects. The defence raised that the respondent did not own the debt by virtue of having securitized it, was just a bald statement in this regard. There were no facts stated to support that contention. The name/identity of the third party to whom the debt was ceded was not provided.

[5] As regards the second point raised by the applicant, I found that it was sufficient that the deponent of the verifying affidavit stated that he verifies the causes of action as set out in the summons, the amounts claimed in the summons and the facts underlying the cause of action. And that the respondents are indebted to the applicant on the ground stated in the summons. It must be borne in mind that the mortgage loan agreement as well as mortgage bond are attached to the summons. In the Publication by DR Harms, entitled Civil Procedure in the Superior Court, it is suggested that an affidavit verifying the cause of action based on the grounds referred to in the summons or words to that effect is sufficient. [Issue no 52 at B32-8]. Harms also suggests that:

“Where a cause of action is based on a written contract which has not been attached to the simple summons, the deponent to the founding

affidavit in the summary judgment will be unable to verify the cause of action.”

By necessary implication, it is my considered view that where the written contract is attached to the summons, the deponent to the

founding affidavit in summary judgment will be able to verify the cause of action by referring to the summons. This proposition is also confirmed in Nedcor Bank Ltd v Lisinfo 61 Trading (Pty) Ltd 2005 (2) SA 432 CPD at 434:

“[5] Rule 32 further provides that, where an applicant relies on a liquid document for the purpose of summary judgment, he or she should attach such document to his or her application. In the present instant, the bond was not so attached. However, the applicant verified the cause of action in the summons to which was attached the bond. The attachment of the bond to the application would therefore have been superfluous and a duplication. Although this was not raised as an issue in the proceedings, insofar as it may be necessary in terms of the rules, the Court condones such omission. The Court is satisfied that the respondent has not been prejudiced by such omission.”

[6] For the reasons stated above, I am unable to find that there are reasonable prospects of applicant succeeding on appeal.

[7] In the result, the application for leave to appeal is dismissed with costs.

N G BESHE

JUDGE OF THE HIGH COURT

APPEARANCES

For the Applicant : Mr A Dolley (In Person)

9 [A……..] Street

[S………..]

PORT ELIZABETH

[074 ……….]

For the Respondent : Mr Richards

Instructed by : McWILLIAMS & ELLIOTT

83 Parliament Street

Central

Tel.: 041 – 582 1250

Ref.: Ed Murray/ivm/W/53638

Date Heard : 25 June 2014

Date Reserved : 25 June 2014

Date Delivered : 29 January 2015