Nedbank Ltd v Volschenk (26/2009) [2009] ZAECPEHC 4 (10 March 2009)

Nedbank Ltd v Volschenk (26/2009) [2009] ZAECPEHC 4 (10 March 2009)

The court found that the defendant failed to comply with Rule 32(3)(b) by not disclosing any bona fide defence or material facts in opposition to the summary judgment application. The defendant's affidavit was silent on the nature and grounds of any defence, and the procedural objections raised did not constitute a valid basis for resisting summary judgment. The defendant conceded through counsel that no defence was disclosed. Consequently, the court was satisfied that the requirements for summary judgment were met and granted judgment in favour of the plaintiff for the amount claimed, interest, and costs, and declared the property specially executable.

Citation
[2009] ZAECPEHC 4
Parties
Applicant: Nedbank Limited; Respondent: Tania Volschenk
Court
Eastern Cape High Court, Port Elizabeth
Jurisdiction
South Africa
Judgment Date
10 March 2009
Case Number
26/2009
Procedural Posture
Summary Judgment Application / Application for Summary Judgment After Appearance to Defend
Outcome
Summary judgment granted in favour of the plaintiff for the amount claimed, interest, costs, and special executability of the property.
Judges
P.W. Tshiki
Legal Topics
Summary Judgment, Rule 32, Loan Repayment, Special Executability
Civil Procedure Banking and Finance Summary Judgment Rule 32 Loan Repayment Special Executability

Case Brief

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Parties

Nedbank Limited

Applicant

Tania Volschenk

Respondent

Procedural Posture

Summary Judgment Application / Application for Summary Judgment After Appearance to Defend

Legal Issues

  1. 1 Whether the defendant has disclosed a bona fide defence to the plaintiff's claim as required by Rule 32(3)(b).
  2. 2 Whether the defendant's affidavit complies with the requirements of Rule 32 for resisting summary judgment.
  3. 3 Whether summary judgment should be granted in favour of the plaintiff.

Ratio Decidendi

The court found that the defendant failed to comply with Rule 32(3)(b) by not disclosing any bona fide defence or material facts in opposition to the summary judgment application. The defendant's affidavit was silent on the nature and grounds of any defence, and the procedural objections raised did not constitute a valid basis for resisting summary judgment. The defendant conceded through counsel that no defence was disclosed. Consequently, the court was satisfied that the requirements for summary judgment were met and granted judgment in favour of the plaintiff for the amount claimed, interest, and costs, and declared the property specially executable.

Court Disposition

Summary judgment granted in favour of the plaintiff for the amount claimed, interest, costs, and special executability of the property.

Orders

  • Judgment is granted against the defendant in favour of the plaintiff in the sum of R1,875,478.88.
  • Payment of interest on R1,867,344.45 at the plaintiff's prime overdraft rate less 2.25%, calculated daily and capitalised monthly in arrears from 13 November 2009 to date of payment.