ABSA Bank Ltd v Herman and Another (535/2013) [2013] ZAECPEHC 26 (9 May 2013)

ABSA Bank Ltd v Herman and Another (535/2013) [2013] ZAECPEHC 26 (9 May 2013)

The court found that the defendants failed to establish any bona fide defence to the plaintiff's claim. The suretyship agreements clearly provided for joint and several liability as sureties and co-principal debtors, and the certificates of indebtedness issued by the bank manager were sufficient proof of the amounts due and payable. The benefit of excussion was deemed to have been renounced by the defendants due to their status as co-principal debtors, and in any event, could not be relied upon where the principal debtor was insolvent. The court was satisfied that the procedural requirements for summary judgment were met and that the plaintiff was entitled to judgment as claimed.

Citation
[2013] ZAECPEHC 26
Parties
Plaintiff: ABSA Bank Limited; Defendant: Kirk Herman; Defendant: Liza Herman
Court
Eastern Cape High Court, Port Elizabeth
Jurisdiction
South Africa
Judgment Date
9 May 2013
Case Number
535/2013
Procedural Posture
Summary Judgment Application / Application for Summary Judgment Following Appearance to Defend
Outcome
Summary judgment granted in favour of the plaintiff against both defendants jointly and severally.
Judges
N G Beshe
Legal Topics
Suretyship Liability, Certificate of Indebtedness, Beneficium Excussionis, Summary Judgment Procedure, Liquid Document, National Credit Act
Banking and Finance Civil Procedure Suretyship Liability Certificate of Indebtedness Beneficium Excussionis Summary Judgment Procedure Liquid Document National Credit Act

Case Brief

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Parties

ABSA Bank Limited

Plaintiff

Kirk Herman

Defendant

Liza Herman

Defendant

Procedural Posture

Summary Judgment Application / Application for Summary Judgment Following Appearance to Defend

Legal Issues

  1. 1 Whether the defendants have established bona fide defences to the plaintiff's claim under the suretyships.
  2. 2 Whether the plaintiff has proven the indebtedness and validity of the suretyship agreements.
  3. 3 Whether the benefit of excussion applies to the defendants as co-principal debtors.

Ratio Decidendi

The court found that the defendants failed to establish any bona fide defence to the plaintiff's claim. The suretyship agreements clearly provided for joint and several liability as sureties and co-principal debtors, and the certificates of indebtedness issued by the bank manager were sufficient proof of the amounts due and payable. The benefit of excussion was deemed to have been renounced by the defendants due to their status as co-principal debtors, and in any event, could not be relied upon where the principal debtor was insolvent. The court was satisfied that the procedural requirements for summary judgment were met and that the plaintiff was entitled to judgment as claimed.

Court Disposition

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

Orders

  • Payment of the sum of R930,566.69.
  • Payment of interest on R930,566.69 at 13.5% per annum from 20 November 2012 to date of payment.