Felix and Another v Nedbank Limited (A585/15) [2017] ZAGPPHC 839 (2 March 2017)

Felix and Another v Nedbank Limited (A585/15) [2017] ZAGPPHC 839 (2 March 2017)

The appeal succeeded in part. The court found that the appellants' defences regarding the authority of the bank's deponent and section 129 of the National Credit Act were without merit. The quantum of indebtedness was not credibly disputed. However, the second appellant's liability was limited by the deed of suretyship to R1.8 million plus interest and costs. The bank failed to properly allege in its founding affidavit the mortgage bond upon which it sought to ground the major part of its claim for security, and thus did not provide sufficient evidence for the execution order. The execution order was set aside and replaced with absolution from the instance. Costs in the appeal were...

Citation
[2017] ZAGPPHC 839
Parties
Appellant: Jose Americo Gonsalves Felix; Appellant: Maria Judite Pestana Felix; Respondent: Nedbank Limited
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
2 March 2017
Case Number
A585/15
Procedural Posture
Civil Appeal / Appeal From Opposed Motion Court Order
Outcome
Appeal succeeded in part; money judgment amended to reflect suretyship limitation; execution order set aside and replaced with absolution from the instance; costs in appeal to be borne by each party; costs order in court below confirmed.
Judges
Tuchten, Tolmay, Mabuse
Legal Topics
Mortgage Bond Enforcement, National Credit Act, Suretyship Limitation, Special Executability, In Duplum Rule
Banking and Finance Civil Procedure Mortgage Bond Enforcement National Credit Act Suretyship Limitation Special Executability In Duplum Rule

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 5 Authorities cited 2 Party arguments 2 Amounts and remedies 4
Sign in to unlock

Parties

Jose Americo Gonsalves Felix

Appellant

Maria Judite Pestana Felix

Appellant

Nedbank Limited

Respondent

Procedural Posture

Civil Appeal / Appeal From Opposed Motion Court Order

Legal Issues

  1. 1 Whether the respondent bank was entitled to an order declaring the appellants' property specially executable.
  2. 2 Whether the second appellant's liability was limited by the deed of suretyship.
  3. 3 Whether the appellants' defences under section 129 of the National Credit Act and the in duplum rule had merit.

Ratio Decidendi

The appeal succeeded in part. The court found that the appellants' defences regarding the authority of the bank's deponent and section 129 of the National Credit Act were without merit. The quantum of indebtedness was not credibly disputed. However, the second appellant's liability was limited by the deed of suretyship to R1.8 million plus interest and costs. The bank failed to properly allege in its founding affidavit the mortgage bond upon which it sought to ground the major part of its claim for security, and thus did not provide sufficient evidence for the execution order. The execution order was set aside and replaced with absolution from the instance. Costs in the appeal were...

Court Disposition

Appeal succeeded in part; money judgment amended to reflect suretyship limitation; execution order set aside and replaced with absolution from the instance; costs in appeal to be borne by each party; costs order in court below confirmed.

Orders

  • The late submission of the respondent's heads of argument is condoned.
  • The respondent must pay the costs of the application for condonation on the unopposed scale.