Nedbank Limited v Sibanda (2017/5193) [2017] ZAGPPHC 403 (28 July 2017)

Nedbank Limited v Sibanda (2017/5193) [2017] ZAGPPHC 403 (28 July 2017)

The court found that the defendant had disclosed a bona fide defence by disputing the arrears and providing calculations and correspondence supporting his position. The evidence before the court did not conclusively establish that the defendant was in arrears at the relevant time. The defendant’s version was credible and not so far-fetched as to be rejected out of hand. Applying the principles of summary judgment, the court held that the defendant was entitled to leave to defend, as his affidavit raised a reasonable possibility that his defence may succeed at trial.

Citation
[2017] ZAGPPHC 403
Parties
Plaintiff: Nedbank Limited; Defendant: Sibanda: Mandla
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
28 July 2017
Case Number
2017/5193
Procedural Posture
Summary Judgment Application / Application for Summary Judgment
Outcome
Leave to defend granted to the defendant; costs of the application to be costs in the cause.
Judges
L Adams
Legal Topics
Summary Judgment, Mortgage Bond, Distressed Restructure Agreement, Bona Fide Defence
Civil Procedure Land and Property Summary Judgment Mortgage Bond Distressed Restructure Agreement Bona Fide Defence

Case Brief

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Parties

Nedbank Limited

Plaintiff

Sibanda: Mandla

Defendant

Procedural Posture

Summary Judgment Application / Application for Summary Judgment

Legal Issues

  1. 1 Whether the defendant was in arrears with his monthly instalments under the restructure agreement at the date of summons.
  2. 2 Whether the defendant has disclosed a bona fide defence to the plaintiff's claim for summary judgment.

Ratio Decidendi

The court found that the defendant had disclosed a bona fide defence by disputing the arrears and providing calculations and correspondence supporting his position. The evidence before the court did not conclusively establish that the defendant was in arrears at the relevant time. The defendant’s version was credible and not so far-fetched as to be rejected out of hand. Applying the principles of summary judgment, the court held that the defendant was entitled to leave to defend, as his affidavit raised a reasonable possibility that his defence may succeed at trial.

Court Disposition

Leave to defend granted to the defendant; costs of the application to be costs in the cause.

Orders

  • The defendant is granted leave to defend.
  • The cost of the application for summary judgment shall be in the cause of the main action.