Absa Bank Ltd v Chawasarira and Another (479/2013) [2017] ZAGPPHC 921 (14 December 2017)

Absa Bank Ltd v Chawasarira and Another (479/2013) [2017] ZAGPPHC 921 (14 December 2017)

The court found that the defendants had entered into payment arrangements with the plaintiff, which were accepted and partially performed. The plaintiff's acceptance of increased repayments did not constitute a novation of the original loan agreement or a waiver of its rights, but it did provide the defendants an opportunity to bring their account up to date. Given the ongoing compliance with these arrangements and the evidence of payments made, it would be improper to grant summary judgment at this stage. The procedural objections raised by the defendants were dismissed as academic due to their failure to invoke the appropriate rules. The application for summary judgment was therefore...

Citation
[2017] ZAGPPHC 921
Parties
Applicant: Absa Bank Ltd; Respondent: M M Chawasarira; Respondent: B N Chawasarira
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
14 December 2017
Case Number
479/2013
Procedural Posture
Summary Judgment Application / Application for Summary Judgment; Opposed; Postponed Sine Die
Outcome
Application for summary judgment postponed sine die; no order as to costs.
Judges
M W Msimeki
Legal Topics
Summary Judgment, Mortgage Bond Enforcement, Payment Arrangement, Default Judgment, National Credit Act Compliance
Civil Procedure Banking and Finance Summary Judgment Mortgage Bond Enforcement Payment Arrangement Default Judgment National Credit Act Compliance

Case Brief

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Parties

Absa Bank Ltd

Applicant

M M Chawasarira

Respondent

B N Chawasarira

Respondent

Procedural Posture

Summary Judgment Application / Application for Summary Judgment; Opposed; Postponed Sine Die

Legal Issues

  1. 1 Whether the plaintiff is entitled to summary judgment against the defendants for the outstanding amount under the mortgage bond.
  2. 2 Whether the defendants' payment arrangements and conduct preclude the granting of summary judgment.
  3. 3 Whether the application for summary judgment was procedurally irregular or out of time.

Ratio Decidendi

The court found that the defendants had entered into payment arrangements with the plaintiff, which were accepted and partially performed. The plaintiff's acceptance of increased repayments did not constitute a novation of the original loan agreement or a waiver of its rights, but it did provide the defendants an opportunity to bring their account up to date. Given the ongoing compliance with these arrangements and the evidence of payments made, it would be improper to grant summary judgment at this stage. The procedural objections raised by the defendants were dismissed as academic due to their failure to invoke the appropriate rules. The application for summary judgment was therefore...

Court Disposition

Application for summary judgment postponed sine die; no order as to costs.

Orders

  • The application for summary judgment is postponed sine die.
  • There will be no order as to costs.