Makalela v ABSA Bank Limited (A134/2018) [2020] ZAGPPHC 811 (21 July 2020)

Makalela v ABSA Bank Limited (A134/2018) [2020] ZAGPPHC 811 (21 July 2020)

The court found that the appellant had furnished a bond of security to the satisfaction of the registrar, which in terms of Rule 32(7) defeats the application for summary judgment. The appellant was entitled to submit a further affidavit due to changed circumstances, and the refusal to accept it denied her the right to a fair hearing as guaranteed by section 34 of the Constitution. The respondent's counsel failed to inform the court of the security bond, and there was no suggestion that the registrar was dissatisfied with the security. The appeal was upheld, and the appellant was granted leave to defend the action.

Citation
[2020] ZAGPPHC 811
Parties
Appellant: Joan Matsatsi Makalela; Respondent: ABSA Bank Limited
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
21 July 2020
Case Number
A134/2018
Procedural Posture
Civil Appeal / Appeal Against Summary Judgment
Outcome
Appeal upheld; order of court a quo set aside; appellant granted leave to defend.
Judges
J W Louw, Tolmay, Hughes
Legal Topics
Summary Judgment, Instalment Sale Agreement, Security for Costs, Right to Fair Hearing
Civil Procedure Commercial and Corporate Summary Judgment Instalment Sale Agreement Security for Costs Right to Fair Hearing

Case Brief

Summary, issues, holding and outcome

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Parties

Joan Matsatsi Makalela

Appellant

ABSA Bank Limited

Respondent

Procedural Posture

Civil Appeal / Appeal Against Summary Judgment

Legal Issues

  1. 1 Whether the appellant was entitled to submit a further opposing affidavit after entering into a settlement agreement.
  2. 2 Whether the furnishing of a security bond by the appellant defeated the respondent's application for summary judgment.
  3. 3 Whether the appellant was denied the right to a fair hearing by the refusal to accept the further affidavit.

Ratio Decidendi

The court found that the appellant had furnished a bond of security to the satisfaction of the registrar, which in terms of Rule 32(7) defeats the application for summary judgment. The appellant was entitled to submit a further affidavit due to changed circumstances, and the refusal to accept it denied her the right to a fair hearing as guaranteed by section 34 of the Constitution. The respondent's counsel failed to inform the court of the security bond, and there was no suggestion that the registrar was dissatisfied with the security. The appeal was upheld, and the appellant was granted leave to defend the action.

Court Disposition

Appeal upheld; order of court a quo set aside; appellant granted leave to defend.

Orders

  • The appeal is upheld with costs.
  • The order of the court a quo is set aside and replaced with the following order: Leave is granted to the defendant to defend the action.