Nedbank Ltd v Senne and Others (2151/10) [2010] ZANWHC 41 (17 December 2010)

Nedbank Ltd v Senne and Others (2151/10) [2010] ZANWHC 41 (17 December 2010)

The court found that the plaintiff had established its claim for the amount due under the mortgage bond and that all necessary trustees had been joined as defendants. Although the affidavit supporting summary judgment was commissioned before the appearance to defend was entered, this defect was not fatal as no opposition was filed and no prejudice resulted. The court held that summary judgment could be granted against the 6th and 9th defendants, jointly and severally, for the amount claimed, with execution against the mortgaged property and costs as provided for in the mortgage bond. Judgment against the 6th defendant would be joint and several with any judgment granted against the...

Citation
[2010] ZANWHC 41
Parties
Plaintiff: Nedbank Limited; Defendant: Paap Abednigo Senne NO; Defendant: Arthur Ben Huma NO; Defendant: Philemon Macheng Khunou NO; Defendant: Obed Andrew Sekoati NO; Defendant: Cornelius Shimane Khunou NO; Defendant: Bhessel Josia Makgatlha NO; Defendant: Constance Francina Huma NO; Defendant: Tayfin Aboo NO represented by Mahome Mahier Tayob; Defendant: Philemon Macheng Khunou; Defendant: Matshidiso Edith Khunou; Defendant: Mokete Frederick Modimokwame; Defendant: Motladile Jeanette Modimokwame; Defendant: Arthur Ben Huma; Defendant: Zipporah Mamgial Huma; Defendant: Paapa Abednego Senne; Defendant: Mamoi Vinolia Senne; Defendant: George Shimane Khunou; Defendant: Mosonngoa Stella Emily Monty Khunou
Court
North West High Court, Mafikeng
Jurisdiction
South Africa
Judgment Date
17 December 2010
Case Number
2151/10
Procedural Posture
Summary Judgment Application / Judgment on Summary Judgment Application
Outcome
Summary judgment granted against the 6th and 9th defendants, jointly and severally, for the amount claimed, with interest, costs, and execution against the mortgaged property.
Judges
A A Landman
Legal Topics
Summary Judgment, Mortgage Bond Enforcement, Suretyship Liability, Joinder of Trustees
Civil Procedure Land and Property Summary Judgment Mortgage Bond Enforcement Suretyship Liability Joinder of Trustees

Case Brief

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Parties

Nedbank Limited

Plaintiff

Paap Abednigo Senne NO

Defendant

Arthur Ben Huma NO

Defendant

Philemon Macheng Khunou NO

Defendant

Obed Andrew Sekoati NO

Defendant

Cornelius Shimane Khunou NO

Defendant

Bhessel Josia Makgatlha NO

Defendant

Constance Francina Huma NO

Defendant

Tayfin Aboo NO represented by Mahome Mahier Tayob

Defendant

Philemon Macheng Khunou

Defendant

Matshidiso Edith Khunou

Defendant

Mokete Frederick Modimokwame

Defendant

Motladile Jeanette Modimokwame

Defendant

Arthur Ben Huma

Defendant

Zipporah Mamgial Huma

Defendant

Paapa Abednego Senne

Defendant

Mamoi Vinolia Senne

Defendant

George Shimane Khunou

Defendant

Mosonngoa Stella Emily Monty Khunou

Defendant

Procedural Posture

Summary Judgment Application / Judgment on Summary Judgment Application

Legal Issues

  1. 1 Whether summary judgment should be granted against the 6th and 9th defendants for the debt owed under the mortgage bond.
  2. 2 Whether all necessary trustees of the Fike Trust have been properly joined as defendants.
  3. 3 Whether the defect in the timing of the affidavit supporting summary judgment is fatal to the application.

Ratio Decidendi

The court found that the plaintiff had established its claim for the amount due under the mortgage bond and that all necessary trustees had been joined as defendants. Although the affidavit supporting summary judgment was commissioned before the appearance to defend was entered, this defect was not fatal as no opposition was filed and no prejudice resulted. The court held that summary judgment could be granted against the 6th and 9th defendants, jointly and severally, for the amount claimed, with execution against the mortgaged property and costs as provided for in the mortgage bond. Judgment against the 6th defendant would be joint and several with any judgment granted against the...

Court Disposition

Summary judgment granted against the 6th and 9th defendants, jointly and severally, for the amount claimed, with interest, costs, and execution against the mortgaged property.

Orders

  • Summary judgment is granted against the 6th and 9th defendants jointly and severally for payment of R1,056,115.10.
  • Interest on R1,056,115.10 at 9% per annum (prime less 1%) from 5 August 2010 to date of payment.