Absa Bank Ltd v Schneider and Others (59401/2009) [2015] ZAGPPHC 855 (3 December 2015)

Absa Bank Ltd v Schneider and Others (59401/2009) [2015] ZAGPPHC 855 (3 December 2015)

The court held that the third defendant's defence of reckless credit under the National Credit Act is a defence in law and that, in terms of Uniform Rule 32, the defendant is required to satisfy the court that the defence is bona fide and good in law. The plaintiff conceded that the defence raised is bona fide, which is dispositive of the issue. The court found that there is no requirement for the defendant to prove that the defence was raised bona fide beyond satisfying the court of its legal sufficiency. Accordingly, the third defendant was granted leave to defend the matter.

Citation
[2015] ZAGPPHC 855
Parties
Plaintiff: Absa Bank Limited; Defendant: Jurgens Schneider; Defendant: Cornelius Frederick Schneider; Defendant: Susara Susanna de Klerk
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
3 December 2015
Case Number
59401/2009
Procedural Posture
Summary Judgment Application / Application for Summary Judgment; Opposition by Third Defendant
Outcome
Leave to defend granted to the third defendant; costs are costs in the main action.
Judges
E.M. Kubushi
Legal Topics
Summary Judgment, National Credit Act, Reckless Credit, Mortgage Bond, Leave to Defend
Civil Procedure Banking and Finance Summary Judgment National Credit Act Reckless Credit Mortgage Bond Leave to Defend

Case Brief

Summary, issues, holding and outcome

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Parties

Absa Bank Limited

Plaintiff

Jurgens Schneider

Defendant

Cornelius Frederick Schneider

Defendant

Susara Susanna de Klerk

Defendant

Procedural Posture

Summary Judgment Application / Application for Summary Judgment; Opposition by Third Defendant

Legal Issues

  1. 1 Whether the third defendant has raised a bona fide and good in law defence to summary judgment.
  2. 2 Whether the defence of reckless credit under the National Credit Act is sufficient to resist summary judgment.
  3. 3 Whether the requirements of Uniform Rule 32 have been met by the third defendant.

Ratio Decidendi

The court held that the third defendant's defence of reckless credit under the National Credit Act is a defence in law and that, in terms of Uniform Rule 32, the defendant is required to satisfy the court that the defence is bona fide and good in law. The plaintiff conceded that the defence raised is bona fide, which is dispositive of the issue. The court found that there is no requirement for the defendant to prove that the defence was raised bona fide beyond satisfying the court of its legal sufficiency. Accordingly, the third defendant was granted leave to defend the matter.

Court Disposition

Leave to defend granted to the third defendant; costs are costs in the main action.

Orders

  • The third defendant is granted leave to defend the matter.
  • Costs are costs in the main action.