Bisnath N.O and Others v Absa Bank Ltd., Absa Bank Ltd. v Bisnath and Another (117/07, 674/07) [2008] ZASCA 23; [2008] 3 All SA 219 (SCA); 2008 (4) SA 92 (SCA) (27 March 2008)

Bisnath N.O and Others v Absa Bank Ltd., Absa Bank Ltd. v Bisnath and Another (117/07, 674/07) [2008] ZASCA 23; [2008] 3 All SA 219 (SCA); 2008 (4) SA 92 (SCA) (27 March 2008)

The court found that the appellants failed to prove entitlement to a credit of R66,000, as their evidence was inconsistent and contradicted by documentary and oral evidence. The property was properly described and identified in the order declaring it executable, and the sale in execution was valid. The Trust did not establish that the Bank took possession of the property, thus the Bank was not obliged to collect rentals. The covering bonds secured all indebtedness, including amounts owed as sureties for the Trust, and the Bank was entitled to refuse cancellation against partial tenders. Notice of intention to apply for judgment by consent was given in accordance with the settlement...

Citation
[2008] ZASCA 23
Parties
Appellant: D Bisnath NO; Appellant: G Bisnath NO; Appellant: D Bisnath; Appellant: G Bisnath; Respondent: Absa Bank Limited
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
27 March 2008
Case Number
117/07, 674/07
Procedural Posture
Civil Appeal / Appeal From High Court Judgments and Orders
Outcome
First appeal dismissed with costs on attorney and client scale; second appeal upheld with costs on attorney and client scale; rule nisi discharged.
Judges
Scott, Cloete, Ponnan, Maya, Snyders
Legal Topics
Mortgage Bond Enforcement, Covering Bonds, Consent to Judgment, Sale in Execution, Credit Allocation, Possession and Rentals
Banking and Finance Land and Property Civil Procedure Mortgage Bond Enforcement Covering Bonds Consent to Judgment Sale in Execution Credit Allocation +1 more

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Parties

D Bisnath NO

Appellant

G Bisnath NO

Appellant

D Bisnath

Appellant

G Bisnath

Appellant

Absa Bank Limited

Respondent

Procedural Posture

Civil Appeal / Appeal From High Court Judgments and Orders

Legal Issues

  1. 1 Whether the Trust was entitled to a credit of R66,000.
  2. 2 Whether the trust property was properly declared specially executable.
  3. 3 Whether the Trust is entitled to a credit for rentals allegedly not collected by the Bank.

Ratio Decidendi

The court found that the appellants failed to prove entitlement to a credit of R66,000, as their evidence was inconsistent and contradicted by documentary and oral evidence. The property was properly described and identified in the order declaring it executable, and the sale in execution was valid. The Trust did not establish that the Bank took possession of the property, thus the Bank was not obliged to collect rentals. The covering bonds secured all indebtedness, including amounts owed as sureties for the Trust, and the Bank was entitled to refuse cancellation against partial tenders. Notice of intention to apply for judgment by consent was given in accordance with the settlement...

Court Disposition

First appeal dismissed with costs on attorney and client scale; second appeal upheld with costs on attorney and client scale; rule nisi discharged.

Orders

  • The first appeal under case number 117/07 is dismissed with costs on the scale as between attorney and client, payable by the Trust and each of the Bisnaths jointly and severally.
  • The second appeal under case number 674/07 is upheld with costs on the scale as between attorney and client, payable by the respondents jointly and severally.