Absa Bank v Giacinti and Another (1720/15) [2015] ZAGPPHC 153 (2 April 2015)

Absa Bank v Giacinti and Another (1720/15) [2015] ZAGPPHC 153 (2 April 2015)

The court found that the plaintiff's application for summary judgment was defective because the founding affidavit failed to verify the cause of action against the correct defendants. Specifically, the affidavit referred to the 1st and 3rd defendants, whereas only the 1st and 2nd defendants were cited. There was no third defendant in the proceedings. The surety agreement was signed by the 2nd defendant with the written consent of the 1st defendant, binding their joint estate. The plaintiff's counsel's argument that a case had been made against the 1st defendant was not sustainable, as the surety was signed by the 2nd defendant and not by a third party. Due to these technical defects, the...

Citation
[2015] ZAGPPHC 153
Parties
Plaintiff: Absa Bank; Defendant: P Giacinti; Defendant: M Giacinti
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
2 April 2015
Case Number
1720/15
Procedural Posture
Summary Judgment Application / Application for Summary Judgment
Outcome
Summary judgment application dismissed; defendants granted leave to defend.
Judges
E M Kubushi
Legal Topics
Summary Judgment, Suretyship, Mortgage Bond, Liquidation, Technical Defence
Civil Procedure Banking and Finance Summary Judgment Suretyship Mortgage Bond Liquidation Technical Defence

Case Brief

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Parties

Absa Bank

Plaintiff

P Giacinti

Defendant

M Giacinti

Defendant

Procedural Posture

Summary Judgment Application / Application for Summary Judgment

Legal Issues

  1. 1 Whether the plaintiff's application for summary judgment is properly verified against the defendants.
  2. 2 Whether the defendants are entitled to leave to defend the action.
  3. 3 Whether the founding affidavit correctly identifies the parties and the cause of action.

Ratio Decidendi

The court found that the plaintiff's application for summary judgment was defective because the founding affidavit failed to verify the cause of action against the correct defendants. Specifically, the affidavit referred to the 1st and 3rd defendants, whereas only the 1st and 2nd defendants were cited. There was no third defendant in the proceedings. The surety agreement was signed by the 2nd defendant with the written consent of the 1st defendant, binding their joint estate. The plaintiff's counsel's argument that a case had been made against the 1st defendant was not sustainable, as the surety was signed by the 2nd defendant and not by a third party. Due to these technical defects, the...

Court Disposition

Summary judgment application dismissed; defendants granted leave to defend.

Orders

  • The application for summary judgment is dismissed.
  • The 1st and 2nd defendants are granted leave to defend the action against them.