Nedbank Ltd v Botha and Another (99/2013) [2013] ZAFSHC 69 (9 May 2013)

Nedbank Ltd v Botha and Another (99/2013) [2013] ZAFSHC 69 (9 May 2013)

The court found that the respondents' opposing affidavit was not filed in accordance with Practice Rule 7.2, as it was submitted on the Tuesday preceding the hearing instead of the required Friday. The delay was not adequately explained, and the respondents failed to provide sufficient reasons for late consultations and filing. The court was not persuaded that the respondents had reasonable prospects of success, as the certificate of balance was binding and constituted prima facie proof of indebtedness, and it was common cause that the respondents were in default of monthly instalments. The applicant was entitled to enforce its claim under section 88(3) of the National Credit Act....

Citation
[2013] ZAFSHC 69
Parties
Applicant: Nedbank Limited; Respondent: Werner Le Roux Botha; Respondent: Sandra Botha
Court
Free State High Court, Bloemfontein
Jurisdiction
South Africa
Judgment Date
9 May 2013
Case Number
99/2013
Procedural Posture
Summary Judgment Application / Application for Condonation of Late Filing of Opposition to Summary Judgment and Determination of Summary Judgment
Outcome
Condonation application dismissed with costs. Summary judgment granted against the respondents jointly and severally in terms of prayers 1.1, 1.2, 1.4 and 2 of the application for summary judgment.
Judges
L. J. Lekale
Legal Topics
Summary Judgment, Condonation, Certificate of Balance, National Credit Act, Practice Rules
Civil Procedure Banking and Finance Summary Judgment Condonation Certificate of Balance National Credit Act Practice Rules

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 4 Authorities cited 5 Party arguments 2 Amounts and remedies 2
Sign in to unlock

Parties

Nedbank Limited

Applicant

Werner Le Roux Botha

Respondent

Sandra Botha

Respondent

Procedural Posture

Summary Judgment Application / Application for Condonation of Late Filing of Opposition to Summary Judgment and Determination of Summary Judgment

Legal Issues

  1. 1 Whether the respondents' affidavit opposing summary judgment was filed late and required condonation.
  2. 2 Whether the respondents have reasonable prospects of success in opposing summary judgment.
  3. 3 Whether the applicant is entitled to summary judgment in terms of the credit agreement and the National Credit Act.

Ratio Decidendi

The court found that the respondents' opposing affidavit was not filed in accordance with Practice Rule 7.2, as it was submitted on the Tuesday preceding the hearing instead of the required Friday. The delay was not adequately explained, and the respondents failed to provide sufficient reasons for late consultations and filing. The court was not persuaded that the respondents had reasonable prospects of success, as the certificate of balance was binding and constituted prima facie proof of indebtedness, and it was common cause that the respondents were in default of monthly instalments. The applicant was entitled to enforce its claim under section 88(3) of the National Credit Act....

Court Disposition

Condonation application dismissed with costs. Summary judgment granted against the respondents jointly and severally in terms of prayers 1.1, 1.2, 1.4 and 2 of the application for summary judgment.

Orders

  • The application for condonation is dismissed with costs.
  • Summary judgment is granted against the respondents jointly and severally in terms of prayers 1.1, 1.2, 1.4 and 2 of the application for summary judgment.