IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE HIGH COURT, CAPE TOWN)

In the matter between:

and

U D G M E N T

[1] This is an opposed application for summary judgment. The facts relevant to this application appear from the record to be the following:

The Applicant's Version
(a) Absa Bank ("the applicant") issued summons against the defendant for the payment of R3 641 496,28 together with interest at a rate of 13% from 28 March 2009.
(b) The applicant alleged that the debt arose from the respondent's failure to have made payments  in respect   of   mortgage   loan   agreements. The applicant alleged that it and the respondent had entered into the following mortgage loan agreements:

(c) The applicant alleged that it lent and advanced the amounts to the respondent. The respondent registered 3 mortgage bonds, B103389/2005. B23553/2008 and B54283/2008, on 28 September 2005, 8 April 2008 and 28 August 2008, in favour of the applicant.
(d) The applicant alleged that the respondent had failed to make payments in respect of the mortgage loans and that it was indebted in the amount stated above.

The Respondent's version

[2] The respondent's version appears from it's affidavit filed in opposition to the summary judgment application to be the following:
"3.1.1. None of the annexures attached to the summons nor the particulars of claim make any reference as to when the amounts lent and advanced were to be repaid.

3.1.3. The plaintiff attached three loan agreements and mortgage bonds to the particulars of claim and I do not know in respect of which of the three the defendant is allegedly in default This renders the summons vague and embarrassing and accordingly it is excipiable

[3]    The respondent further alleged that the applicant never advised it when the payments became due.
[4]     Rule 32(3)(b) provides that the respondent in summary judgment proceedings may:

"The procedure is not intended to 'shut' (a defendant) out from defending, unless it was very clear that he had no case in the action."

SA (1) (SCA).)
[7] The respondent's counsel argued that the respondent should be afforded the opportunity to proceed to trial where it could prove:

"... that no demand for payment was made nor was the Defendant advised of when payment of instalments should commence."

[8] It appears from clause 2 of the last loan entered into between the parties that "the date of first payment was to be advised..." Clause 3.3 of the same agreement stipulates that instalments are payable after registration of the mortgage bond and that it would be repayable in 240 monthly instalments over a 20 year period.

Conclusion

[10]  For reasons stated above, I make the following order:

(a)    Summary judgment is granted in terms of prayers 1, 2, 3 and 4 of the application.

BAARTMAN, J