Absa Bank Limited v Hembly (67598/2016) [2016] ZAGPPHC 1086 (14 December 2016)

Absa Bank Limited v Hembly (67598/2016) [2016] ZAGPPHC 1086 (14 December 2016)

The court found that the defendant failed to set out any bona fide defence in his opposing affidavit. The arguments raised by the defendant, including challenges to the authority of the deponent and references to various statutes and documents, did not constitute a defence in law to the plaintiff's claim. The plaintiff established its entitlement to summary judgment, cancellation of the instalment agreement, and repossession of the vehicle. Condonation for the late filing of the defendant's affidavit was granted in the interests of justice, but this did not affect the outcome. Costs of the application and the earlier postponement were awarded against the defendant.

Citation
[2016] ZAGPPHC 1086
Parties
Plaintiff: Absa Bank Limited; Defendant: Joseph Hembly
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
14 December 2016
Case Number
67598/2016
Procedural Posture
Summary Judgment Application / Hearing of Summary Judgment Application
Outcome
Summary judgment granted in favour of the plaintiff; instalment agreement cancelled; vehicle to be repossessed; costs awarded against the defendant.
Judges
HF Jacobs
Legal Topics
Summary Judgment, Instalment Agreement, Repossession of Motor Vehicle, Authority of Deponent
Civil Procedure Commercial and Corporate Summary Judgment Instalment Agreement Repossession of Motor Vehicle Authority of Deponent

Case Brief

Summary, issues, holding and outcome

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Parties

Absa Bank Limited

Plaintiff

Joseph Hembly

Defendant

Procedural Posture

Summary Judgment Application / Hearing of Summary Judgment Application

Legal Issues

  1. 1 Whether the defendant has set out a bona fide defence to the plaintiff's claim for summary judgment.
  2. 2 Whether the plaintiff is entitled to cancellation of the instalment agreement and repossession of the vehicle.
  3. 3 Whether the authority of the deponent to the founding affidavit is validly challenged.

Ratio Decidendi

The court found that the defendant failed to set out any bona fide defence in his opposing affidavit. The arguments raised by the defendant, including challenges to the authority of the deponent and references to various statutes and documents, did not constitute a defence in law to the plaintiff's claim. The plaintiff established its entitlement to summary judgment, cancellation of the instalment agreement, and repossession of the vehicle. Condonation for the late filing of the defendant's affidavit was granted in the interests of justice, but this did not affect the outcome. Costs of the application and the earlier postponement were awarded against the defendant.

Court Disposition

Summary judgment granted in favour of the plaintiff; instalment agreement cancelled; vehicle to be repossessed; costs awarded against the defendant.

Orders

  • Cancellation of the written contract between the plaintiff and the defendant dated 5 October 2012 is confirmed.
  • The Sheriff of the High Court is ordered and authorised to attach, cease and hand over to the plaintiff the vehicle being a 2012 Mercedes Benz C180 coupe A/T, engine number 27491030010865, chassis number WDD2043312F971868.