Standard Bank of South Africa v Enslin NO ans Another (49339/2010) [2011] ZAGPPHC 46 (31 March 2011)
The court found that the application for summary judgment was not properly supported as the National Credit Act compliance certificate was not part of the summons and could not be considered. There were two causes of action, but the supporting affidavit did not clearly verify both. The Trust was under debt review,...
Source-derived case information.
- Citation
- [2011] ZAGPPHC 46
- Parties
- Plaintiff: Standard Bank of South Africa; Defendant: Yvette Enslin N.O. (Trustee for the time being of Khimano Trust IT 3830/00); Defendant: Yvette Enslin N.O. (Executrix of the estate of the late Daniel Johannes Hendrik Enslin N.O.)
- Court
- North Gauteng High Court, Pretoria
- Jurisdiction
- South Africa
- Case Number
- 49339/2010
- Procedural Posture
- Summary Judgment Application / Application for Summary Judgment; Opposition Affidavit Filed; Judgment Delivered
- Outcome
- Application for summary judgment refused; defendants granted leave to defend.
- Judges
- Sapirc AJ
- Legal Topics
- Summary Judgment, National Credit Act Compliance, Debt Review, Suretyship
Source-derived case record
Summary, issues, holding and outcome
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Parties
Standard Bank of South Africa
Plaintiff
Yvette Enslin N.O. (Trustee for the time being of Khimano Trust IT 3830/00)
Defendant
Yvette Enslin N.O. (Executrix of the estate of the late Daniel Johannes Hendrik Enslin N.O.)
Defendant
Procedural Posture
Summary Judgment Application / Application for Summary Judgment; Opposition Affidavit Filed; Judgment Delivered
Legal Issues
- 1 Whether summary judgment should be granted against the defendants for recovery of a building loan.
- 2 Whether the National Credit Act debt review process bars summary judgment against the Trust.
- 3 Whether the application for summary judgment is properly supported and verified against both defendants.
Ratio Decidendi
The court found that the application for summary judgment was not properly supported as the National Credit Act compliance certificate was not part of the summons and could not be considered. There were two causes of action, but the supporting affidavit did not clearly verify both. The Trust was under debt review, and there was no answer to this point from the plaintiff, making it improper to grant summary judgment against the Trust. The application for summary judgment was therefore refused, and the defendants were granted leave to defend. Costs were ordered to be costs in the cause, and the defendants were directed to file their pleas within seven days.
Court Disposition
Application for summary judgment refused; defendants granted leave to defend.
Orders
- The application for summary judgment is dismissed.
- Defendants are given leave to defend.
Full Case Text
Judgment text and source record
44 paragraphs
IN THE NORTH GAUTENG HIGH COURT, PRETORIA
(REPUBLICOF SOUTH AFRICA)
NOT REPORTABLE
Case Number: 49339/2010
DATE: 31/03/2011
STANDARD BANK OF SOUTH AFRICA.........................................................................
v
YVETTE ENSLIN N.O.
The trustee for the time being of Khimano trust (it 3830/00)...............................Defendant
VETTE ENSLIN N.O
(The Exucutrix of the estate of the late Daniel JohannesHendrik
Enslin N.O.)...............................................................................................................Defendant
Coram Sapirc AJ
JUDGMENT
This is an application for Summary Judgement. The Plaintiff has issued a Summons for the recover) of a building loan which it alleges was made to the Khimano Trust and for which one D J H Enslin stood surety. This individual has died and the Defendant is his widow. She is cited in her capacity as executrix of the estate of her late husband and as trustee for the time being of the Trust.
The Defendant in both capacities has given notice of her intention to defend the action. The Plaintiff in response applies for Summary
Judgement. Until a late stage no Affidavit in opposition to the Application for Summary Judgement was filed but such an Affidavit was in fact filed on the 6th of January 2011. The Affidavit is attested to by Yvette Enslin.
In the Affidavit she raises a number of points. The first point so raised is that the NC'A Compliance Certificate is attached to the Affidavit supporting the application for Summary Judgment. She points out that this document is not part of the Summons and cognisance thereof cannot be taken. This objection is well taken as the Plaintiffs cause of action is to be found complete in the Summons itself.
The second point that is taken by her is that the Summons includes two causes of action, one against the Trust and one against the estate of her late husband.
The Affidavit in support of the application for Summary Judgement is attested by one Kennedy who is the Manager of the Customer Debt Department of the Plaintiff. In the Affidavit he refers to "the cause of action as stated in the Summons". The Application for Summary Judgement indicates that a judgment would be sought against the Defendants jointly and severally. There are two causes of action in the Summons one against the First Defendant and one against the Second Defendant. It is not clear which of the causes of action is verified.
The mailer is clarified in the Affidavit as judgment is sought only against the Khimano Trust and this point is therefore not decisive as far as the First Defendant is concerned.
It ma\ he noted that a Draft Order was placed before the Court in which judgment was sought against both Defendants jointly and severally. "The application did not justify an order against both Defendants.
As far as the Trust is concerned the point is made that the Trust is under debt review in terms of the National Credit Act and that the action against it cannot on this ground proceed.
There is no answer to this. It would therefore not be proper to grant Summary Judgement against the First Defendant.
The Application for Summary Judgement is therefore refused but the costs are to be costs in the cause. The merits of the objection to the claim being enforced should be adjudicated speedily
The order is as follows:
The application is dismissed.
Defendants are given leave to defend.
(c) The costs of this application are to be costs in the cause
(d) The defendants are to tile their pleas within seven days, and the plaintiff may approach the Deputy Judge President, to be allocated an early trial date
SAPIRE, AJ
plaintiffs counsel: Adv s M Maritz
…........................... Tel No: 012-424-4130
plaintiff's attorneys: Haasbroek & Boezaart
…............................HB Forum
...............................1 3 stamvrug street val de grace.
…............................Pretoria
…............................Ref: b van der merwe/s1 234/4348
Respondents' 'counsel:
Respondfnts- Attorney Machobane kriel inc
….......................................1 79 Lynnwood Road
…....................................... Brooklyn, Pretoria
…........................................ref: H Kriel
…........................................Tel: 012 362 1678