ABSA Bank Ltd v Van Der Walt N.O. and Another (99/17575) [2000] ZAGPHC 31 (27 November 2000)
- Citation
- [2000] ZAGPHC 31
- Status
- Judgment
- Jurisdiction
- South Africa
- Court
- High Courts - Gauteng
- Panel
- Willis
- Case number
- 99/17575
More details
- Court
- High Courts - Gauteng
- Panel
- Willis
- Case number
- 99/17575
On this page
Professional case brief
Research organized from the available case record
01
Holding and result
The court found that the defendants failed to provide adequate and timely medical evidence to justify a further postponement of the trial. The affidavit from Dr Tait was submitted late and the doctor was not available for cross-examination, despite the previous postponement having been granted for similar reasons. The plaintiff was entitled to challenge the affidavit and the absence of the doctor undermined the credibility of the illness claim. The court held that the defence was straightforward and did not warrant repeated delays. Accordingly, the application for postponement was dismissed with costs.
Court disposition
Application for postponement dismissed with costs.
Orders
- The application for postponement is dismissed with costs.
02
Material facts
Parties
ABSA Bank Ltd
Plaintiff Counsel: Adv RouxVan Der Walt, Theunis Petrus N.O.
Defendant Counsel: Adv BothmaVan Der Walt, Lynette N.O.
Defendant Counsel: Adv BothmaAmounts and remedies
- Writ Amount 1: ZAR 393,578.55
- Writ Amount 2: ZAR 760,868.04
03
Procedural history
Posture
Civil Trial / Application for Postponement
04
Questions and positions
Legal issues
- 01
Whether the defendants have provided sufficient medical evidence to justify a further postponement of the trial.
- 02
Whether the plaintiff is entitled to refuse acceptance of the affidavit and demand cross-examination of the medical practitioner.
- 03
Whether the application for postponement should be dismissed with costs.
Party arguments
- Applicant
- The defendants, through their attorney, submitted that the first defendant was too ill to attend the trial, supported by a late affidavit from Dr Tait stating that the first defendant suffered from peptic gastritis and severe depression and was unfit to attend court for at least ten days. The defence included a denial of signature on the suretyship and a challenge to the interest rate charged.
- Respondent
- The plaintiff, represented by Adv Roux, argued that the affidavit was submitted late, that the matter had already been postponed once for similar reasons, and that he was entitled to cross-examine the doctor regarding the first defendant's ability to proceed and the veracity of the illness claim. The plaintiff opposed the postponement and sought dismissal of the application with costs.
05
Court’s reasoning
Legal principles
- 01
General principles of civil procedure
A party seeking a postponement must provide sufficient and timely evidence to justify the request, including affidavits and, where necessary, the availability of witnesses for cross-examination.
- 02
General principles of civil procedure
The opposing party is entitled to challenge the evidence supporting a postponement, including cross-examination of medical practitioners.
06
Ratio, limits and disposition
Ratio decidendi
The court found that the defendants failed to provide adequate and timely medical evidence to justify a further postponement of the trial. The affidavit from Dr Tait was submitted late and the doctor was not available for cross-examination, despite the previous postponement having been granted for similar reasons. The plaintiff was entitled to challenge the affidavit and the absence of the doctor undermined the credibility of the illness claim. The court held that the defence was straightforward and did not warrant repeated delays. Accordingly, the application for postponement was dismissed with costs.
Obiter and limits
- It is unusual for a bank customer to claim an agreed interest rate below prime, as most customers pay prime plus a percentage depending on creditworthiness.
- The defence of denial of signature is a simple matter and should not require extensive cross-examination over several days.
Court disposition
Application for postponement dismissed with costs.
- The application for postponement is dismissed with costs.
Source and reliance status
High Courts - Gauteng
This page organises the available record for research. Confirm quotations, current status, and subsequent treatment against the official source before relying on the case.
Judgment reading view
Judgment text
The complete available source text.
High Courts - Gauteng
Judgment
NOT
REPORTABLE
IN
THE HIGH COURT OF SOUTH AFRICA
JOHANNESBURG
CASE NUMBER:99/17575
DATE:2000-11-27
In the matter between
ABSA
BANK LTD............................................................................................................ Plaintiff
and
VAN DER WALT, THEUNIS PETRUS N.O..........................................................First Defendant
VAN DER WALT, LYNETTE N.O....................................................................Second Defendant
JUDGMENT
WILLIS. J: The writ amounts of R393 578,55 and R760 868,04 together with interest are claimed against both defendants. The claim arises from a loan which the plaintiff made to a Family Trust of which the two defendants were trustees. The loan was secured by a property and also by two separate suretyship documents signed by both the parties. It appears clear that both the defendants are themselves practising attorneys.
The trial was earlier postponed on 17 May 2000. The reasons for the postponement on 17 May were that the first defendant was too ill to attend the trial.
The matter was set down on 16 August 2000 for hearing on 24 November 2000. It would appear from evidence led by Mr Bothma, the attorney
for the plaintiff, that on Tuesday last week, in other words, 21 November 2000, he was informed by the attorney acting for the first and second defendant that the first defendant would be too ill to attend the trial.
It would appear that Dn the date of the set down there was no evidence whatsoever put before the court in order to enable it to determine whether or not a postponement should be granted.
The matter was enrolled before my brother Navsa J in order for him to determine whether or not to grant the postponement, f am reliably
informed by counsel from the Bar that my brother Navsa J indicated that he would at least require an affidavit. This affidavit was not produced on 24 November, nor was it available when court proceedings commenced this morning at 10:00. Nevertheless, sometime between 10:00 and the present an affidavit by a Dr Johannes Lodewickus Tait was submitted. What appears in a scrawled medical certificate by him it reads as follows:
"Heil die Leser
Mm van der Walt ly aan (illegible) peptiese gastritis asook erge depressie. Hy is deur my na Dr Isaacs en Dr Brink, Psigiater verwys
wat horn tans in Flora Clinic behandei. Hy is nie in staat
om enige hofverrigtinge by te woon vir minstens die volgende tien dae nie. Die uwe."
Mr Roux, who appears for the plaintiff, correctly adopted the view that he was not obliged to accept the affidavit tendered on behalf of the first defendant. In the circumstances it is hardly surprising that he has taken such an attitude. After all, this matter was previously postponed for essentially the same reason. He is entitled, in my view, to cross-examine the doctor to find out when it is likely that the first defendant would be in a position to proceed with the trial and also to test the veracity of the allegation that the first defendant is indeed so ill that he cannot on the second postponement opportunity give evidence with regard to his defence.
The defence, as I understand it, is one of a denial of his signature which is really a rather simple matter over which to testify and should not entail exhausting cross-examination over several days. There is also a defence that the rate of interest charges is incorrect but this is ancillary. In any event, the defence is that the agreed rate of interest was 1 per cent below prime. This, prima facie, is a most unusual defence. Most ordinary customers of banks have to pay the prime rate plus a percent or two, depending on their creditworthiness.
I asked Mr Bothma whether the doctor was available to testify and he informed me that he was no. It is common cause that he has not been in attendance at court on Friday, the 24th, nor is he in attendance today.
Accordingly, in my view, a proper case is made out for the dismissal of the application for the postponement, with costs, and such an order is accordingly made.
ON BEHALF OF PLAINTIFF:ADV ROUXInstructed by
ON BEHALF OF DEFENDANTS: ADV BOTHMA
Instructed by:De Vries Incorporated
DATE OF JUDGMENT:27 NOVEMBER 2000
Case-aware research
Ask AI about this case
The judgment and available research above are public. New questions open in a separate private conversation grounded in this case.