ABSA Bank Ltd NO and Another v Cowley (1204/2012) [2012] ZANWHC 65 (13 December 2012)

ABSA Bank Ltd NO and Another v Cowley (1204/2012) [2012] ZANWHC 65 (13 December 2012)

The Court found that the deponent to the summary judgment affidavit did not have sufficient personal knowledge of the facts verifying the cause of action and the amount claimed. The deponent relied on information and documentation under his control, but there was no evidence of a direct connection with the cedent or the plaintiff, nor any indication that he had personal knowledge of the circumstances giving rise to the lease agreement or the cession. The substantive contents of the affidavit amounted to hearsay. As summary judgment is a drastic remedy, the Court must be satisfied that the deponent can swear positively to the facts. The application was fatally defective, and summary...

Citation
[2012] ZANWHC 65
Parties
Plaintiff: ABSA Bank Limited N.O; Plaintiff: Trustees for the time being of THE EMIRA PROPERTY FUND STRATEGIC REAL ESTATE MANAGERS (PTY) LTD; Defendant: Terence Henry Cowley
Court
North West High Court, Mafikeng
Jurisdiction
South Africa
Judgment Date
13 December 2012
Case Number
1204/2012
Procedural Posture
Summary Judgment Application / Application for Summary Judgment
Outcome
Application for summary judgment dismissed; leave to defend granted; costs awarded to defendant.
Judges
N. Gutta
Legal Topics
Summary Judgment, Personal Knowledge of Deponent, Cession of Rights, Lease Agreement, Suretyship
Civil Procedure Commercial and Corporate Summary Judgment Personal Knowledge of Deponent Cession of Rights Lease Agreement Suretyship

Case Brief

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Parties

ABSA Bank Limited N.O

Plaintiff

Trustees for the time being of THE EMIRA PROPERTY FUND STRATEGIC REAL ESTATE MANAGERS (PTY) LTD

Plaintiff

Terence Henry Cowley

Defendant

Procedural Posture

Summary Judgment Application / Application for Summary Judgment

Legal Issues

  1. 1 Whether the deponent to the summary judgment affidavit had sufficient personal knowledge to verify the cause of action and amount claimed.
  2. 2 Whether the cession from Prime View Properties (Pty) Ltd to Emira Property Fund (Pty) Ltd was proven.
  3. 3 Whether the calculation of the amount claimed was erroneous.

Ratio Decidendi

The Court found that the deponent to the summary judgment affidavit did not have sufficient personal knowledge of the facts verifying the cause of action and the amount claimed. The deponent relied on information and documentation under his control, but there was no evidence of a direct connection with the cedent or the plaintiff, nor any indication that he had personal knowledge of the circumstances giving rise to the lease agreement or the cession. The substantive contents of the affidavit amounted to hearsay. As summary judgment is a drastic remedy, the Court must be satisfied that the deponent can swear positively to the facts. The application was fatally defective, and summary...

Court Disposition

Application for summary judgment dismissed; leave to defend granted; costs awarded to defendant.

Orders

  • The application for summary judgment is dismissed.
  • Leave to defend is granted.