IN THE HIGH COURT OF SOUTH AFRICA
(CAPE OF GOOD HOPE PROVINCIAL DIVISION)

DATE:							27 MARCH 2007

In the matter between

ABSA BANK LTD						Applicant

And

JUDGMENT

[1]    This is an application for summary judgment against
effectively two respondents, a trust, which is cited as the three trustees in their capacity as such. The second respondent is one of the trustees who is sued in his capacity as surety for the principal debt which is an overdrawn bank account.

[4] It is a technical defence but equally it is trite law that the summary judgment remedy is a far-reaching one and that the provisions of the rule must be strictly complied with. One sees from the papers in this matter that at an earlier stage there was an application for default judgment. There the plaintiff made it quite clear against whom they were seeking default judgment, namely first and second defendants jointly and severally, the one to pay the other to be absolved.
[5] I have littJe doubt that an error was committed when the summary judgment application and the affidavit were drafted, but nonetheless on any reading of those documents it is not clear whether the application is brought against first or second respondent and it does not indicate that it is brought against both respondents.

[6] Pn the circumstances, there has not been compliance with the provisions of Rule 32 and, in my view, it is not open to this Court to condone the error by interpreting the affidavit or the application more liberally so as to include both respondents.

Therefore the order that I make is that the summary judgment application is refused. Costs of this application are to stand over for later determination.
BOZALEK, J