Absa Bank Limited v Makiwane and Others (94888/2016) [2018] ZAGPPHC 689 (7 September 2018)

Absa Bank Limited v Makiwane and Others (94888/2016) [2018] ZAGPPHC 689 (7 September 2018)

The court found that the Respondents committed an irregular step by pleading to the simple summons before the declaration was delivered, contrary to the Uniform Rules of Court. The Applicant followed the correct procedure by serving a Rule 30(2)(b) notice and giving the Respondents an opportunity to remove the cause of complaint, which they failed to do. The Respondents' arguments regarding the summary judgment procedure and the late delivery of the declaration were rejected, as the summary judgment application had been resolved and the Respondents waived their right to object by failing to issue a notice in terms of Rule 30A or invoke Rule 26. The court also held that the late filing of...

Citation
[2018] ZAGPPHC 689
Parties
Applicant: Absa Bank Limited; Respondent: Rose Ruth Ntombi Makiwane; Respondent: Mvelasee Mvuyo Ndziba; Respondent: Nobantu Lindelwa Ndziba; Respondent: Deborah Lovell Harding (Silver)
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
7 September 2018
Case Number
94888/2016
Procedural Posture
Civil Application / Application in Terms of Rule 30 to Strike Out Plea as Irregular Step
Outcome
Application granted. The First, Second and Third Respondents' defence is struck out for failure to comply with the Applicant's Rule 30(2)(b) notice. Costs awarded to the Applicant on a party and party scale.
Judges
Modisa
Legal Topics
Uniform Rules of Court Rule 30, Irregular Step, Pleading to Simple Summons, Notice of Bar, Summary Judgment Procedure
Civil Procedure Uniform Rules of Court Rule 30 Irregular Step Pleading to Simple Summons Notice of Bar Summary Judgment Procedure

Case Brief

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Parties

Absa Bank Limited

Applicant

Rose Ruth Ntombi Makiwane

Respondent

Mvelasee Mvuyo Ndziba

Respondent

Nobantu Lindelwa Ndziba

Respondent

Deborah Lovell Harding (Silver)

Respondent

Procedural Posture

Civil Application / Application in Terms of Rule 30 to Strike Out Plea as Irregular Step

Legal Issues

  1. 1 Whether the Respondents committed an irregular step by pleading to the simple summons instead of the declaration.
  2. 2 Whether the Applicant was entitled to bring an application in terms of Rule 30 to strike out the Respondents' plea.
  3. 3 Whether the late filing of the replying affidavit and Rule 30 application affects the proceedings.

Ratio Decidendi

The court found that the Respondents committed an irregular step by pleading to the simple summons before the declaration was delivered, contrary to the Uniform Rules of Court. The Applicant followed the correct procedure by serving a Rule 30(2)(b) notice and giving the Respondents an opportunity to remove the cause of complaint, which they failed to do. The Respondents' arguments regarding the summary judgment procedure and the late delivery of the declaration were rejected, as the summary judgment application had been resolved and the Respondents waived their right to object by failing to issue a notice in terms of Rule 30A or invoke Rule 26. The court also held that the late filing of...

Court Disposition

Application granted. The First, Second and Third Respondents' defence is struck out for failure to comply with the Applicant's Rule 30(2)(b) notice. Costs awarded to the Applicant on a party and party scale.

Orders

  • The First, Second and Third Respondents' defence is struck out due to failure to comply with the Applicant's notice in terms of Rule 30(2)(b) of the Uniform Rules of Court.
  • The First, Second and Third Respondents, jointly and severally the one paying the other to be absolved, are ordered to pay the costs of this application on a party and party scale.