Absa Bank Ltd v Botha NO and Others (39228/12) [2013] ZAGPPHC 163; 2013 (5) SA 563 (GNP) (7 June 2013)

Absa Bank Ltd v Botha NO and Others (39228/12) [2013] ZAGPPHC 163; 2013 (5) SA 563 (GNP) (7 June 2013)

The court held that the plaintiff's verifying affidavit did not comply with Rule 32(2) of the Uniform Rules of Court because the commissioner of oaths certified the deponent as male, while the deponent declared herself as female. This contradiction created uncertainty about whether the affidavit was properly attested and undermined the presumption of regularity. The court found that the burden of proof rests on the applicant to demonstrate that the document is an affidavit, and the irregularity was not a mere administrative error. The failure to attach the liquid document to the verifying affidavit was condonable only if the verifying affidavit was valid, which was not the case here. The...

Citation
[2013] ZAGPPHC 163
Parties
Plaintiff: Absa Bank Ltd; Defendant: Gerhardus Bartholomeus Botha, NO; Defendant: Belinde Botha, NO; Defendant: Gerhardus Bartholomeus Botha
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
7 June 2013
Case Number
39228/12
Procedural Posture
Summary Judgment Application / Rule 30 Objection to Summary Judgment Application
Outcome
The plaintiff's application for summary judgment is set aside as an irregular proceeding. The plaintiff is ordered to pay the costs of the summary judgment application and the costs of the Rule 30 application.
Judges
Kathree-Setiloane
Legal Topics
Affidavit Requirements, Summary Judgment, Commissioner of Oaths, Irregular Proceedings
Civil Procedure Affidavit Requirements Summary Judgment Commissioner of Oaths Irregular Proceedings

Case Brief

Summary, issues, holding and outcome

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Parties

Absa Bank Ltd

Plaintiff

Gerhardus Bartholomeus Botha, NO

Defendant

Belinde Botha, NO

Defendant

Gerhardus Bartholomeus Botha

Defendant

Procedural Posture

Summary Judgment Application / Rule 30 Objection to Summary Judgment Application

Legal Issues

  1. 1 Whether the plaintiff's verifying affidavit complies with Rule 32(2) of the Uniform Rules of Court.
  2. 2 Whether the use of the incorrect gender pronoun by the commissioner of oaths renders the affidavit invalid.
  3. 3 Whether failure to attach the liquid document to the verifying affidavit is fatal to the summary judgment application.

Ratio Decidendi

The court held that the plaintiff's verifying affidavit did not comply with Rule 32(2) of the Uniform Rules of Court because the commissioner of oaths certified the deponent as male, while the deponent declared herself as female. This contradiction created uncertainty about whether the affidavit was properly attested and undermined the presumption of regularity. The court found that the burden of proof rests on the applicant to demonstrate that the document is an affidavit, and the irregularity was not a mere administrative error. The failure to attach the liquid document to the verifying affidavit was condonable only if the verifying affidavit was valid, which was not the case here. The...

Court Disposition

The plaintiff's application for summary judgment is set aside as an irregular proceeding. The plaintiff is ordered to pay the costs of the summary judgment application and the costs of the Rule 30 application.

Orders

  • The plaintiff's application for summary judgment under case number 39228/2012 is set aside as an irregular proceeding in terms of Rule 30 of the Uniform Rules of Court.
  • The plaintiff is ordered to pay the costs of the application for summary judgment as well as the costs of this application.