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

IN THE NORTH

WEST HIGH COURT

MAFIKENG

CASE NO. 2151/10

In the matter between:

NEDBANK LIMITED ….........................................................................................PLAINTIFF

and

PAAP ABEDNIGO

SENNE NO …..............................................................1ST

DEFENDANT

ARTHUR BEN HUMA NO ….....................................................................2ND

DEFENDANT

PHILEMON

MACHENG KHUNOU NO …..................................................3RD

DEFENDANT

OBED ANDREW

SEKOATI NO................................................................ 4TH DEFENDANT

CORNELIUS

SHIMANE KHUNOU NO …..................................................5TH

DEFENDANT

BHESSEL JOSIA

MAKGATLHA NO.........................................................6TH

DEFENDANT

CONSTANCE

FRANCINA HUMA NO …...................................................7TH

DEFENDANT

TAYFIN ABOO NO

REPRESENTED BY MAHOME

MAHIER TAYOB …....................................................................................8TH

DEFENDANT

PHILEMON

MACHENG KHUNOU …........................................................9TH

DEFENDANT

MATSHIDISO

EDITH KHUNOU …...........................................................10TH

DEFENDANT

MOKETE

FREDERICK MODIMOKWANE …...........................................11TH

DEFENDANT

MOTLADILE JEANETTE MODIMOKWANE ….......................................12TH

DEFENDANT

ARTHUR BEN HUMA …..........................................................................13TH

DEFENDANT

ZIPPORAH

MAMGIAL HUMA ….............................................................14TH

DEFENDANT

PAAPA ABEDNEGO

SENNE …..............................................................15TH

DEFENDANT

MAMOI VINOLIA

SENNE …....................................................................16TH

DEFENDANT

GEORGE SHIMANE

KHUNOU …............................................................17TH

DEFENDANT

MOSONNGOA STELLA EMILY MONTY KHUNOU …............................18TH

DEFENDANT

DATE OF HEARING : 9 DECEMBER 2010

DATE OF JUDGMENT : 17 DECEMBER 2010

FOR THE PLAINTIFF : MR M WESSELS

FOR THE DEFENDANTS : NO APPEARANCE

JUDGMENT

LANDMAN J:

[1] The plaintiff, Nedbank Ltd, issued a summons out of this court on 22 September 2010 against the 18 (eighteen) defendants. Nedbank alleged that the defendants are jointly and severally liable for payment of R1 056 115.10 being the balance due and owing in respect of monies lent and advanced by Nedbank to the first to eight defendants (being Trustees for the time being of the Fike Trust, the owner of mortgage property) in terms of a loan agreement secured by a mortgage bond. The ninth to eighteenth defendants are alleged to have bonded themselves jointly and severally for an unlimited amount as sureties and co-principal debtors in solidum for repayment of any monies which may be owed to Nedbank by the Trust.

[2] The summons was served upon the defendants in October 2010. On 2 November 2010 the assistant Master of the North Gauteng High Court, Pretoria provided, on form J246, letters of authority for the Fike Trust showing that the Trustees were: The 2nd, 4th, 5th and 6th defendants as well as Khosi Moses Diale and Moshanti Martin Makgale.

[3] A notice of substitution in terms of Rule 15(3) dated 3 December 2010 was filed indicating that this action would proceed against the current Trustees who were named. In November 2010 the summons was served on the 9th, 13th, 15th and another defendant having his or her address at 174 Photsaneng. The return has been amended by hand and I am unable to determine to whom this return relates.

[4] The 6th and 9th defendants entered appearance to defend the matter on 3 November 2010.

[5] On 23 November 2010 a notice of application for summary judgment was delivered to the attorney for the 6th and 9th defendants. The application was filed with the Registrar on 24 November. The affidavit in support of the application is dated 19 October 2010. The deponent, Ms Sharon Janse van Rensburg, says in paragraph 4:

“In my opinion there is no bona fide defence to the action and that the Notice of Intention to Defend has been delivered solely for the purposes of delay.”

[6] The first aspect which requires attention is the fact that the plaintiff’s affidavit alleges that the 6th to 9th defendants entered appearance to defend simply to delay the process. This, in so far as it relates to the entry of appearance to defend, is factually incorrect as no appearance to defend had been entered when the affidavit was commissioned. However, as there has been no appearance for the defendants and no affidavits have been filed, I am of the view that this defect is not a fatal one.

[7] Secondly there is the issue of joinder. All the Trustees have been joined as is required. See Moriolo and Others v Kage-Eddie NO and Others 1995 (2) SA 728 (W) at 731E and Van der Westhuizen v Sandwyk 1996 (2) SA 490 (W). Trustees are obliged to act unanimously. Minority rule or majority rule is not permitted. See Coetzee v Peet Smith Trust 2003 (5) SA 674 (T).

[8] The situation here is that only one trustee, the 6th defendant, has entered appearance to defend. Although this step it a nominal one and probably done with the intention of delaying judgment, it has the effect that summary judgment can only be granted against one trustee, and a separate application would need to be made to obtain default judgment against the remaining Trustees. It seems to me that, although the judgment may only be executed against the property of the Fike Trust, that, I should grant summary judgment against the 6th defendant which shall be jointly and severally with any judgment that may be entered against the remaining current Trustees.

[9] As for the 9th defendant I will grant judgment against him jointly and severally with the judgment granted against the 6th defendant.

[10] In the result:

1. Summary judgment is granted against the 6th and 9th defendants jointly and severally for:

1.1 Payment of the amount of R1 056 115.10.

1.2 Interest on the amount of R1 056 115.10 at 9% (prime less 1%) per annum from 05 August 2010 to date of payment.

1.3 An order declaring the mortgaged property referred to in the summons executable for the said sums and costs.

1.4 Costs on an attorney and client scale, to be taxed, plus Sheriff’s charges and collection commission as provided for in the Mortgage Bond.

2. The judgment granted against the 6th defendant shall be joint and several with any judgment which might be granted against the remaining Trustees whose names are set out on form J246 issued on 2 November 2010 by the Master in respect of the Fike Trust.

A A LANDMAN

JUDGE OF THE

HIGH COURT

ATTORNEYS:

FOR THE PLAINTIFF : VAN ROOYEN TLHAPI & WESSELS

FOR THE DEFENDANTS : SM MOOKELETSI.