Benade and Another v Absa Bank Limited (11271/2012) [2014] ZAWCHC 84 (16 May 2014)

Benade and Another v Absa Bank Limited (11271/2012) [2014] ZAWCHC 84 (16 May 2014)

The court found that the applicants provided a satisfactory explanation for their delay in responding to the notice of bar, as their conduct was influenced by communications with the respondent's attorneys. The applicants' defence based on an alleged agreement preventing legal action was rejected due to the express terms of the written Help-u-sell agreement. The defence of lis pendens was not sustained, as the prior action had been withdrawn. The contention that the declaration was vague and embarrassing was found not to constitute a substantive defence. However, the applicants' allegations regarding reckless credit under the National Credit Act were sufficient to constitute a bona fide...

Citation
[2014] ZAWCHC 84
Parties
Applicant: Louis Le Roux Benade; Applicant: Jacoba Sophia Benade; Respondent: Absa Bank Limited
Court
Western Cape High Court, Cape Town
Jurisdiction
South Africa
Judgment Date
16 May 2014
Case Number
11271/2012
Procedural Posture
Civil Application / Application to Uplift Bar and for Leave to Deliver Exception
Outcome
The application to uplift the bar was granted; applicants were given leave to deliver their exception within ten days; costs were awarded against the applicants; the default judgment application was postponed sine die.
Judges
Pillay
Legal Topics
Removal of Bar, Exception Procedure, Reckless Credit, National Credit Act, Pleading Irregularity
Civil Procedure Banking and Finance Removal of Bar Exception Procedure Reckless Credit National Credit Act Pleading Irregularity

Case Brief

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Parties

Louis Le Roux Benade

Applicant

Jacoba Sophia Benade

Applicant

Absa Bank Limited

Respondent

Procedural Posture

Civil Application / Application to Uplift Bar and for Leave to Deliver Exception

Legal Issues

  1. 1 Whether the applicants have shown good cause for the removal of the bar to their pleading.
  2. 2 Whether the applicants have a bona fide defence to the respondent's claim.
  3. 3 Whether the applicants' delay in responding to the notice of bar is satisfactorily explained.

Ratio Decidendi

The court found that the applicants provided a satisfactory explanation for their delay in responding to the notice of bar, as their conduct was influenced by communications with the respondent's attorneys. The applicants' defence based on an alleged agreement preventing legal action was rejected due to the express terms of the written Help-u-sell agreement. The defence of lis pendens was not sustained, as the prior action had been withdrawn. The contention that the declaration was vague and embarrassing was found not to constitute a substantive defence. However, the applicants' allegations regarding reckless credit under the National Credit Act were sufficient to constitute a bona fide...

Court Disposition

The application to uplift the bar was granted; applicants were given leave to deliver their exception within ten days; costs were awarded against the applicants; the default judgment application was postponed sine die.

Orders

  • The bar to the applicants' pleading in Case No 11271/2012 is removed.
  • The applicants are given leave to deliver their exception within ten days from the date of judgment.