Investec Bank Limited v Van heerden and Others (17890/2010) [2017] ZAGPPHC 348 (13 March 2017)
The court found that the applicant failed to comply with the terms of the confession of judgment, specifically the requirement to give notice to the respondents' attorney of record. The evidence showed that Gerhard Botha & Partners Inc was the attorney of record at the relevant time, and there was no notice of...
Source-derived case information.
- Citation
- [2017] ZAGPPHC 348
- Parties
- Applicant: Investec Bank Limited; Respondent: Anthea Phoebe-Jane Van Heerden; Respondent: Zak Albertus Van Heerden; Respondent: Afrikings (Pty) Ltd; Respondent: New Invest 263 (Pty) Ltd
- Court
- North Gauteng High Court, Pretoria
- Jurisdiction
- South Africa
- Judgment Date
- 13 March 2017
- Case Number
- 17890/2010
- Procedural Posture
- Urgent Application / Application for Judgment in Terms of Rule 31 Based on Confession of Judgment
- Outcome
- Application for judgment is not granted; matter postponed pending compliance with procedural requirements.
- Judges
- Khumalo
- Legal Topics
- Confession of Judgment, Rule 31 Procedure, Notice Requirements, Attorney of Record
Source-derived case record
Summary, issues, holding and outcome
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Parties
Investec Bank Limited
Applicant
Anthea Phoebe-Jane Van Heerden
Respondent
Zak Albertus Van Heerden
Respondent
Afrikings (Pty) Ltd
Respondent
New Invest 263 (Pty) Ltd
Respondent
Procedural Posture
Urgent Application / Application for Judgment in Terms of Rule 31 Based on Confession of Judgment
Legal Issues
- 1 Whether the applicant has complied with the procedural requirements for judgment based on confession under Rule 31.
- 2 Whether proper notice of the application for judgment was given to the respondents' attorney of record as required by the confession document.
- 3 Whether the attorney who witnessed the confession was properly appointed as attorney of record for the respondents.
Ratio Decidendi
The court found that the applicant failed to comply with the terms of the confession of judgment, specifically the requirement to give notice to the respondents' attorney of record. The evidence showed that Gerhard Botha & Partners Inc was the attorney of record at the relevant time, and there was no notice of withdrawal or appointment of Hills Incorporated. As a result, the application for judgment could not be considered until proper compliance with the procedural requirements was achieved.
Court Disposition
Application for judgment is not granted; matter postponed pending compliance with procedural requirements.
Orders
- The application for judgment is not considered until there is compliance with the terms of the confession of judgment.
Full Case Text
Judgment text and source record
34 paragraphs
IN THE REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
(GAUTENG LOCAL DIVISION, PRETORIA)
CASE NO: 17890/2010
DATE: 13/3/2017
INVESTEC BANK LIMITED
APPLICANT
and
ANTHEA PHOEBE-JANE VAN HEERDEN 1ST RESPONDENT
1ZAK ALBERTUS VAN HEERDEN
2ND RESPONDENT
AFRIKINGS (PTY) LTD 3RD RESPONDENT
NEW INVEST 263 (PTY) LTD 4TH RESPONDENT
JUDGMENT
KHUMALO J
INTRODUCTION
[1] This is an application for Judgment in terms of Rule 31 of the High Court Rules. The Applicant is reliant upon a confession of Judgment that was signed by the 1st, 2nd and 4th Respondents on 17 March 2014 pursuant Applicant instituting an action against them in 2010.
[2] The Respondents were assisted by their attorney a Mr A J Benecke ("Benecke"), who also appended his signature on the confession document. Paragraph 5 of the confession reads:
"We agree that should we default in respect of any of the obligations of the Defendants to the Plaintiff, as set out herein, such default shall be certified by a Manager of the Plaintiff and in that event the Plaintiff shall be entitled to apply in writing through the Registrar to a Judge for judgment to be granted according to this confession for the full outstanding balance then due and payable as applicable, if the Plaintiff has given notice in writing of such application for judgment to our attorney of record whose particulars appear hereunder and the amount remains unpaid for seven (7) days.''
[3] The Applicant attaches a supporting affidavit deposed to by a Ms N B Moatshe, the Applicant's attorney of record alleging that the
attorney who witnessed the signatures of the Defendants is Bennecke of the firm Hills Incorporated acting on behalf of the Respondents.
To substantiate the allegation a Notice of Intention to defend the action delivered by the Respondents in the matter is attached as Annexure "B".
[4] In terms of Annexure "B" signed on 3 May 2010, the Respondents appointed Gerhard Botha & Partners Inc as their attorneys of record, Care/of S Roux Inc who are situated at office 2/201, Office Park no 2 Top Floor, Cnr Oliphant's & Steenbok Streets, Monument Park in Pretoria. A J Bennecke/ llr/HJ264/10 is mentioned as a reference. There is no Notice of withdrawal by Gerhard Botha & Partners or a Notice of Appointment by Hills Incorporated not been.
[5] The Applicant has given notice of its Application to Attorneys Hills Incorporated who are situated at 835 Jan Shoba Street, Brooklyn, Pretoria, reference AJ Bennecke/idb/JB210/12 without any explanation.
[6] As a result the Application cannot be considered until there is compliance with the terms of the confession.
____________________
NVKHUMALO J
JUDGE OF THE HIGH COURT
GAUTENG DIVISION, PRETORIA
For the Applicant:
VDT ATTORNEYS INC
Tel: 012 452-1314
Fax: 086 758 5328
Ref: Cvav Eetveldt/AVDB/INVl0/0046 (MAT1486)