ABSA Bank Ltd v Dumisani Hans Inc and Another (2397/2013) [2013] ZAWCHC 70 (10 May 2013)

ABSA Bank Ltd v Dumisani Hans Inc and Another (2397/2013) [2013] ZAWCHC 70 (10 May 2013)

The court found that the plaintiff had shown good cause for condonation of its failure to annex a signed copy of the mortgage loan agreement, as the original was destroyed in a fire and only an unsigned copy was available. The plaintiff pleaded all material terms and sought condonation from the outset. The defendants' technical objections did not amount to a bona fide defence, and their opposition was opportunistic. The special plea of unfair discrimination was dismissed, as the deed of suretyship allowed the plaintiff to proceed against any surety individually or jointly. The defendants failed to dispute the material facts, including the registration of the mortgage bond, the certificate...

Citation
[2013] ZAWCHC 70
Parties
Plaintiff: ABSA Bank Limited; Defendant: Dumisani Hans Incorporated; Defendant: Dumisani Hans
Court
Western Cape High Court, Cape Town
Jurisdiction
South Africa
Judgment Date
10 May 2013
Case Number
2397/2013
Procedural Posture
Summary Judgment Application / Judgment Delivered After Hearing on 2 May 2013
Outcome
Summary judgment granted in favour of the plaintiff against the defendants, jointly and severally.
Judges
J I Cloete
Legal Topics
Summary Judgment, Mortgage Bond Enforcement, Suretyship Liability, Condonation Under Rule 18 6, Certificate of Balance, Non Compliance With Pleading Rules
Civil Procedure Banking and Finance Summary Judgment Mortgage Bond Enforcement Suretyship Liability Condonation Under Rule 18 6 Certificate of Balance Non Compliance With Pleading Rules

Case Brief

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Parties

ABSA Bank Limited

Plaintiff

Dumisani Hans Incorporated

Defendant

Dumisani Hans

Defendant

Procedural Posture

Summary Judgment Application / Judgment Delivered After Hearing on 2 May 2013

Legal Issues

  1. 1 Whether the plaintiff's failure to annex a signed copy of the mortgage loan agreement should be condoned under rule 18(6).
  2. 2 Whether the defendants have raised a bona fide defence sufficient to resist summary judgment.
  3. 3 Whether the plaintiff may proceed against only one surety when multiple sureties exist.

Ratio Decidendi

The court found that the plaintiff had shown good cause for condonation of its failure to annex a signed copy of the mortgage loan agreement, as the original was destroyed in a fire and only an unsigned copy was available. The plaintiff pleaded all material terms and sought condonation from the outset. The defendants' technical objections did not amount to a bona fide defence, and their opposition was opportunistic. The special plea of unfair discrimination was dismissed, as the deed of suretyship allowed the plaintiff to proceed against any surety individually or jointly. The defendants failed to dispute the material facts, including the registration of the mortgage bond, the certificate...

Court Disposition

Summary judgment granted in favour of the plaintiff against the defendants, jointly and severally.

Orders

  • The plaintiff's failure to comply with rule 18(6) in respect of the mortgage loan agreement is condoned.
  • Summary judgment is granted against the defendants, jointly and severally, the one paying the other to be absolved.