THE HIGH COURT OF SOUTH AFRICA 
(WESTERN CAPE HIGH COURT, CAPE TOWN)
Case No: 1920/11
In the matter between:
ABSA BANK	Plaintiff/Applicant
and
ELMA LINTZ N.O	1st Defendant/Respondent
PIETER ALBERTUS DU PLESSIS 		2nd Defendant/Respondent

JUDGMENT delivered this11th day of December 2012
NDITA; J

[1] The plaintiff instituted action in this court on 7 February 2012 for recovery of an amount of R869 534.35 with costs on attorney and client scale, lent and advanced to the defendant pursuant to an agreement. In due course, the defendant entered an appearance to defend. On 27 June 2012, the plaintiff filed an application for summary judgment, and is procedure, the application was supported by an affidavit setting out that in its opinion, the defendant had no bona fidei defence and had delivered notice of intention to defend for the purpose of delaying the proceedings. In response thereto, the defendants on 27 July 2012 filed an opposing affidavit outlining their defence of reckless lending, in line with section 80 of the National Credit Act 34 of 2005. This defence is premised on the following:
1. that the plaintiff failed to conduct an assessment as required by section 81 (2) of the Act, or, in the alternative;
2. that having conducted the assessment entered into the credit agreement despite the fact that the assessment indicated that the defendants would be rendered over indebted.
[2] On 31 July 2012, the summary judgment application was by agreement between the parties, postponed to 23 October 2012. The plaintiff filed neither the Practice Note nor heads of argument. These were filed by the defendants on 22 October 2012. During the hearing on 23 October 2012, the application was withdrawn and the defendants granted leave to defend the action. However, the plaintiff did not tender costs. The matter was further postponed to 10 December for a consideration of costs resulting from the withdrawal of the application, thus the present application.

[3] Rule 32(9)(a) provides as follows:

"... the Court must of necessity, be slow to make a special order of costs between attorney and client in such cases because, if the defence is ultimately held to be unfounded and dishonest, it might mean that the defendant has obtained a special order for costs when its own conduct is subject to serious criticism - an order which cannot be corrected at the trial. The risk of such an injustice being perpetrated is increased because the plaintiff is denied the right to reply to the defendant’s allegations in summary judgment proceedings.”

[5] The considerations expressed above apply in this case. In the circumstances, I am of the view that the defendants are entitled the order they pray for.
[6] In the result, the following order will issue:
The plaintiff is ordered to pay the defendant’s costs of opposing the summary judgment application on the attorney and client scale, as well the costs of this application, such costs to be taxable and payable forthwith.
T. C NDITA
JUDGE: WESTERN CAPE HIGH COURT