Firstrand Bank Limited v Farisani [2023] ZAGPPHC 542; 57108/2019 (7 July 2023)

Firstrand Bank Limited v Farisani [2023] ZAGPPHC 542; 57108/2019 (7 July 2023)

The court found that the supplementary affidavit was not properly commissioned, with discrepancies regarding the deponent's gender and the identity of the commissioner of oaths. The affidavit failed to provide sworn evidence of the current market value and arrears, and contained inadmissible hearsay and opinion evidence. The court declined to condone non-compliance with the regulations and did not admit the supplementary affidavit into evidence. The initial founding affidavit was also deficient regarding the reserve price and market value. Given the importance of the respondent's right to adequate housing and the procedural shortcomings, the Rule 46A application was not ripe for hearing....

Citation
[2023] ZAGPPHC 542
Parties
Applicant: Firstrand Bank Limited; Respondent: Livehuwani Mullicent Lucia Farisani
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
7 July 2023
Case Number
57108/2019
Procedural Posture
Summary Judgment Application / Interlocutory Application; Summary Judgment and Rule 46 a Application
Outcome
Applications postponed sine die; applicant to pay respondent's wasted costs.
Judges
HJ De Wet
Legal Topics
Rule 46a Executable Property, Summary Judgment, Commissioning of Affidavits, Reserve Price, Right to Adequate Housing
Civil Procedure Land and Property Rule 46a Executable Property Summary Judgment Commissioning of Affidavits Reserve Price Right to Adequate Housing

Case Brief

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Parties

Firstrand Bank Limited

Applicant

Livehuwani Mullicent Lucia Farisani

Respondent

Procedural Posture

Summary Judgment Application / Interlocutory Application; Summary Judgment and Rule 46 a Application

Legal Issues

  1. 1 Whether the supplementary affidavit in the Rule 46A application was properly commissioned and admissible.
  2. 2 Whether the summary judgment application can proceed in light of defects in the affidavits and supporting documentation.
  3. 3 Whether the applicant has complied with Rule 46A requirements regarding market value, arrears, and reserve price.

Ratio Decidendi

The court found that the supplementary affidavit was not properly commissioned, with discrepancies regarding the deponent's gender and the identity of the commissioner of oaths. The affidavit failed to provide sworn evidence of the current market value and arrears, and contained inadmissible hearsay and opinion evidence. The court declined to condone non-compliance with the regulations and did not admit the supplementary affidavit into evidence. The initial founding affidavit was also deficient regarding the reserve price and market value. Given the importance of the respondent's right to adequate housing and the procedural shortcomings, the Rule 46A application was not ripe for hearing....

Court Disposition

Applications postponed sine die; applicant to pay respondent's wasted costs.

Orders

  • The Rule 46A and summary judgment applications are postponed sine die.
  • The applicant may, within 15 days, file a supplementary founding affidavit addressing Rule 46A(5) aspects, reserve price, and other relevant matters.