Absa Bank v Giacinti and Another (1720/15) [2015] ZAGPPHC 153 (2 April 2015)
- Citation
- [2015] ZAGPPHC 153
- Status
- Judgment
- Jurisdiction
- South Africa
- Court
- North Gauteng High Court, Pretoria
- Panel
- E M Kubushi
- Case number
- 1720/15
More details
- Court
- North Gauteng High Court, Pretoria
- Panel
- E M Kubushi
- Case number
- 1720/15
On this page
Professional case brief
Research organized from the available case record
01
Holding and result
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 application for summary judgment was dismissed and the defendants were granted leave to defend the action.
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.
- Costs are costs in the main action.
02
Material facts
Parties
Absa Bank
Plaintiff Counsel: Adv. ASL van WykP Giacinti
Defendant Counsel: Adv. WJ van WykM Giacinti
Defendant Counsel: Adv. WJ van WykAmounts and remedies
- Claimed Amount: ZAR 1,386,081.15
03
Procedural history
Posture
Summary Judgment Application / Application for Summary Judgment
04
Questions and positions
Legal issues
- 01
Whether the plaintiff's application for summary judgment is properly verified against the defendants.
- 02
Whether the defendants are entitled to leave to defend the action.
- 03
Whether the founding affidavit correctly identifies the parties and the cause of action.
Party arguments
- Applicant
- The plaintiff argued that the defendants are jointly and severally liable for the outstanding amount due on a cheque account, as they bound their joint estate as surety and co-principal debtor for the principal debtor's obligations. The plaintiff contended that the principal debtor's default rendered the full amount due and payable, and sought summary judgment against the defendants.
- Respondent
- The defendants opposed the summary judgment application, raising technical defences including defects in the verification of the cause of action and misidentification of parties in the founding affidavit. They argued that the affidavit referred to a non-existent third defendant and failed to properly verify the claim against the actual defendants, warranting dismissal of the application and leave to defend.
05
Court’s reasoning
Legal principles
- 01
Rule 32 of the Uniform Rules of Court
An application for summary judgment must properly verify the cause of action against the defendants and correctly identify the parties involved.
- 02
Maharaj v Barclays National Bank Ltd 1976 (1) SA 418 (A)
Where there is a defect in the verification of the cause of action or misidentification of parties, summary judgment should be refused and leave to defend granted.
06
Ratio, limits and disposition
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 application for summary judgment was dismissed and the defendants were granted leave to defend the action.
Obiter and limits
- The court noted that technical defects in summary judgment applications, such as incorrect identification of parties, are fatal and cannot be cured by argument.
- Costs were ordered to be costs in the main action, reflecting the preliminary nature of the summary judgment application.
Court disposition
Summary judgment application dismissed; defendants granted leave to defend.
- The application for summary judgment is dismissed.
- The 1st and 2nd defendants are granted leave to defend the action against them.
- Costs are costs in the main action.
Source and reliance status
North Gauteng High Court, Pretoria
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Judgment reading view
Judgment text
The complete available source text.
North Gauteng High Court, Pretoria
Judgment
IN
THE HIGH COURT OP SOUTH AFRICA
(GAUTENG DIVISION, PRETORIA)
CASE NO: 1720/15
DATE: 2 APRIL 2015
NO REPORTABLE
NOT OF INTEREST
TO OTHER JUDGES
IN THE MATTER BETWEEN:
ABSA BANK..............................................................................................................PLAINTIFF
AND
P GIACINTI......................................................................................................lst
DEFENDANT
M GIACINTI...................................................................................................2nd
DEFENDANT
JUDGMENT
KUBUSHI,J
[1] This is an application for summary judgment.
[2] The plaintiffs claim against the 1st and 2nd defendants, jointly and severally liable, the one to pay, the other to be absolved, is for payment of the amount of R1 386 081,15.
[3] The amount represents the balance of an amount lent and advanced as well as agreed upon debits charged by the plaintiff to Moda Tiles Fourways CC (in liquidation) (the principal debtor), on a cheque account.
[4] The 2nd respondent (with the written consent of the 1st defendant) bound their joint estate as surety and co-principal debtor for the due fulfilment of the principal debtor’s obligations towards the plaintiff. As security for such debt the 1st and 2nd defendants registered three mortgage bonds in favour of the plaintiff.
[5] The aforementioned amount is due and payable by virtue of the fact that the principal debtor failed to make payments as agreed with the resultant consequence that the full amount outstanding became due and payable.
[6] The 1st and 2nd defendants having entered appearance to defend the summons issued against them by the plaintiff, the plaintiff has now applied for summary judgment.
[7] The 1st and 2nd defendants are opposing the application for summary judgment and have raised a number of technical defences. Without going into all these defences, it is my view that the summary judgment application should be dismissed and the defendants be granted leave to defend this matter.
[8] My view is based on the application itself, which is defective in that it does not verify the cause of action against the defendants. The plaintiffs cause of action is based on surety signed by the 2nd defendant with the consent of the 1st defendant. The surety binds the joint estate of defendants. However, the founding affidavit refers to the 1st and 3rd defendants instead of the 1st and 2nd defendants. It is evident from the papers that there is no 3rd defendant cited by the plaintiff. The contention by the plaintiffs counsel that a case has been made against the 1st defendant is not sustainable as well. This is so because the 2nd defendant signed the surety binding the joint estate of the defendants. The 1st defendant consented to such surety, which, was signed by the 2nd respondent and not by the 3rd respondent.
[9] In the premises I have to make the following order:
(a) The application for summary judgment is dismissed.
(b) The 1st and 2nd defendants are granted leave to defend the action against them.
(c) Costs are costs in the main action.
E. M. KUBUSHI
JUDGE OF THE HIGH
COURT
APPEARANCES
HEARD ON THE : 20 MARCH 2015
DATE OF JUDGMENT : 02 APRIL 2015
APPLICANT'S COUNSEL : ADV.
ASL VAN WVK
APPLICANT'S ATTORNEY: TIM
DU TOIT ATTORNEVS
RESPONDENT'S COUNSEL: ADV.
WJ VAN WVK
RESPONDENT'S ATTORNEY : SNAIL ATTORNEVS @ LAW
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