Absa Bank Limited v Makola (4708/2018) [2019] ZAMPMHC 26 (3 December 2019)

Absa Bank Limited v Makola (4708/2018) [2019] ZAMPMHC 26 (3 December 2019)

The court found that the respondent failed to raise a bona fide defence to the applicant's claim. The respondent's allegations regarding the closure of accounts and inability to pay were unsupported by factual evidence, and he did not dispute the existence of the facility agreement, the mortgage bond, or the certificate of indebtedness. The respondent's constitutional argument regarding adequate housing was rejected due to lack of detail and supporting information. The court held that the requirements of Rule 46A were met, including judicial oversight and consideration of the respondent's circumstances. The property valuation was accepted, and a reserve price was set. The applicant was...

Citation
[2019] ZAMPMHC 26
Parties
Applicant: Absa Bank Limited; Respondent: Tenane Charles Makola
Court
Middelburg High Court, Mpumalanga
Jurisdiction
South Africa
Judgment Date
3 December 2019
Case Number
4708/2018
Procedural Posture
Summary Judgment Application / Judgment After Opposed Summary Judgment and Rule 46 a Application
Outcome
Summary judgment granted in favour of the applicant; property declared executable with reserve price; costs awarded against respondent.
Judges
Brauckmann
Legal Topics
Summary Judgment, Mortgage Bond Enforcement, National Credit Act Compliance, Declaration of Executability, Reserve Price Setting, Right to Adequate Housing
Civil Procedure Banking and Finance Land and Property Summary Judgment Mortgage Bond Enforcement National Credit Act Compliance Declaration of Executability Reserve Price Setting +1 more

Case Brief

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Parties

Absa Bank Limited

Applicant

Tenane Charles Makola

Respondent

Procedural Posture

Summary Judgment Application / Judgment After Opposed Summary Judgment and Rule 46 a Application

Legal Issues

  1. 1 Whether the applicant is entitled to summary judgment for the claimed amount under the facility agreement and mortgage bond.
  2. 2 Whether the respondent has raised a bona fide defence to the claim.
  3. 3 Whether the requirements of Rule 46A for declaring the respondent's primary residence executable have been met.

Ratio Decidendi

The court found that the respondent failed to raise a bona fide defence to the applicant's claim. The respondent's allegations regarding the closure of accounts and inability to pay were unsupported by factual evidence, and he did not dispute the existence of the facility agreement, the mortgage bond, or the certificate of indebtedness. The respondent's constitutional argument regarding adequate housing was rejected due to lack of detail and supporting information. The court held that the requirements of Rule 46A were met, including judicial oversight and consideration of the respondent's circumstances. The property valuation was accepted, and a reserve price was set. The applicant was...

Court Disposition

Summary judgment granted in favour of the applicant; property declared executable with reserve price; costs awarded against respondent.

Orders

  • Payment of R1,320,012.46 by the respondent to the applicant.
  • Interest on R1,320,012.46 at 9.25% per annum from 28 November 2018 to date of payment, calculated and capitalized monthly.