Absa Bank Ltd v Uys (4922/2011) [2011] ZAWCHC 231 (19 May 2011)

Absa Bank Ltd v Uys (4922/2011) [2011] ZAWCHC 231 (19 May 2011)

The court found that while some of the respondent's indebtedness to the applicant is subject to the National Credit Act, the largest portion, arising from suretyship for a juristic person, is not. The suretyship is excluded from the Act because the principal debtor is a juristic person. The application to perfect...

Source-derived case information.

Citation
[2011] ZAWCHC 231
Parties
Applicant: Absa Bank Limited; Respondent: Petrus Jacobus Uys
Court
Western Cape High Court, Cape Town
Jurisdiction
South Africa
Judgment Date
19 May 2011
Case Number
4922/2011
Procedural Posture
Urgent Application / Application for Provisional Order to Perfect Notarial Bond
Outcome
Application granted; provisional order to perfect notarial bond issued.
Judges
Cleaver
Legal Topics
Notarial Bond Perfection, National Credit Act Application, Secured Loan Definition, Rule 6 5 D Iii Point of Law
Banking and Finance Civil Procedure Notarial Bond Perfection National Credit Act Application Secured Loan Definition Rule 6 5 D Iii Point of Law

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Parties

Absa Bank Limited

Applicant

Petrus Jacobus Uys

Respondent

Procedural Posture

Urgent Application / Application for Provisional Order to Perfect Notarial Bond

Legal Issues

  1. 1 Whether the applicant is entitled to a provisional order perfecting the notarial bond over the respondent's movable property.
  2. 2 Whether the National Credit Act applies to the debts secured by the notarial bond, and if so, whether section 129 notice was required.
  3. 3 Whether the suretyship debt is subject to the National Credit Act.

Ratio Decidendi

The court found that while some of the respondent's indebtedness to the applicant is subject to the National Credit Act, the largest portion, arising from suretyship for a juristic person, is not. The suretyship is excluded from the Act because the principal debtor is a juristic person. The application to perfect the notarial bond was not preceded by a section 129 notice, but since the majority of the debt is not subject to the Act, such notice was not required for the relief sought. The court declined to decide whether the Prochaska judgment was wrongly decided, as it was unnecessary for the outcome. The application for perfection of the notarial bond succeeded, and the court issued a...

Court Disposition

Application granted; provisional order to perfect notarial bond issued.

Orders

  • Non-compliance with time limits imposed by court rules is condoned and short notice of the hearing to the respondent is condoned.
  • The notarial bond no BN30961/2006 held by the applicant is perfected; the respondent is ordered to point out and hand over to the sheriff all his movable goods held at the farm Sandplaas, Hermon, Malmesbury District; his home at 63 Eighteenth Avenue, Boston, Bellville; and any other place.