Category: ABSA BANK LIMITED

Smack down for Absa Bank in Joburg High Court

absaAbsa bank was handed a stunning defeat in the South Gauteng High Court last week when its attempt to obtain summary judgment against two home owners was slapped down by the judge.

The matter must now go to trial for oral evidence, which will take a year or two.

Absa was attempting to obtain summary judgment against the home owners, James Grobbelaar and Kevin Jenzen, on the grounds that they allegedly defaulted on their loans. But when asked to provide evidence of the loan agreements, Absa produced a standard loan agreement – not the one signed by the defendants.

The bank claimed the original documents had been destroyed in a fire – as they have done in scores if not hundreds of other similar cases. Instead of attaching the loan agreement to its court papers, Absa relied on a so-called “standard agreement” and claimed the originals were no longer available due to a fire which supposedly destroyed thousands of bank documents in 2009.

Securitisation experts have long argued that the prevalence of fires within the Absa group is highly suspicious, particularly as these fires seem to occur with abnormal frequency whenever a client seeks to ascertain whether or not their loan has been securitised. Securitisation is the practice of bundling loans together and on-selling them to investors as a way of freeing up capital by the banks. In doing so, banks lose legal title to the loans and in theory cannot then bring legal action against the borrower, though they have managed to side-step the law by drawing a veil of secrecy over this activity. Banks typically issue a bare-faced denial when borrowers ask whether their loans have been securitised, or they demand that borrowers provide proof of securitisation – a virtual impossibility, given the banks’ secrecy surrounding this practice.  

Justice Roland Sutherland issued judgment against the bank, arguing that Rule 18(6) of the court rules requires a plaintiff to produce the relevant documents when seeking to press their case. Absa had not done so. “There is no doubt that a failure to annex the loan agreement constitutes non-compliance with this rule,” said Justice Sutherland.

Advocate Douglas J Shaw, who represented Mr Grobbelaar, argued that the bank had to prove that the documents were in fact destroyed in a fire, something that can only be done in a trial in a year or so, and not in the quick process (summary judgment) that Absa sought to use.

Adv Shaw also spoke of “The Myth of the Standard Agreement”. In its court papers, Absa had attached the agreement that they say is the one they usually use, the so-called “standard agreement”. Adv Shaw held up four different Absa agreements, one with 18 clauses and another with more than 100. He pointed out there were many more variations of the so-called “standard agreements” being used by the bank. It was therefore impossible to ascertain what were the contents of the loan agreement signed by the defendants.

Absa‘s own documents also revealed discrepancies. The interest rates charged the homeowners were disputed, casting further doubt on the bank’s cause of action, and the standard agreement did not correspond with the mortgage bond that had allegedly been lodged with the deeds office.

“Many people who have already received summary judgments or default judgments from Absa can now join an appeal through the court process,” says Adv Shaw.

The judgment reads in part (Absa was the plaintiff in this case, and Grobbelaar and Jenzen the defendants): “In my view, these arguments inspired by the missing loan agreements have in large measure touched upon an important consideration but have obscured the critical point. The starting place must be to recognise that what is critical in legal proceedings is dictated by the relief sought. In summary judgment proceedings, to defeat the plaintiff’s application a defendant must put up a basis why the plaintiff cannot get judgment without the merits of a defence being tested. Whilst a classical defence might contradict the facts upon which the plaintiff relies, it also remains open to a defendant to merely demonstrate that the plaintiff’s averments, where the facts are peculiarly within the knowledge of the plaintiff, need to be proven and an opportunity to test the substance of those averments is appropriate.

“In my view, it would be inappropriate to pre-judge the merits of the defendants’ allegations, and the plaintiff should extricate itself from its regrettable predicament on trial, not by way of summary judgment.”

Justice Sutherland cautioned that while there was a “very real prospect of professional debtors exploiting the processes of the law to unduly delay and obfuscate litigation,” this was an occupational hazard and a fair adversarial litigation system ought to leave this door open. “The essence of the present controversies lies in the realm of marshalling evidence, and the responsibility to construct cases in ways to meet such a challenge is what the legal profession is for.”

A new movement representing people who have been adversely affected by Absa’s fire story has been launched. Stay tuned for more details. Advocate Shaw is an adviser to this group.

http://news.acts.co.za/blog/2014/08/smack-down-for-absa-in-joburg-high-court

ABSA BANK LIMITED and HERCULES JOHANNES VENTER

absa

In the matter between: ABSA BANK LIMITED, Plaintiff, and HERCULES JOHANNES VENTER, 1st Defendant, and
HESTER MARIA VENTER, 2nd Defendant
NOTICE OF SALE IN EXECUTION—IMMOVABLE PROPERTY
In pursuance of a judgment granted by this Honourable Court on 29 July 2013, and a warrant of execution issued thereafter,
the undermentioned immovable property will be sold in execution without reserve by the Sheriff of the High Court,
Roodepoort North, at the Sheriff’s Office, Roodepoort North, 182 Progress Road, Lindhaven, on 8 August 2014 at 10h00, to the
highest bidder.
Full conditions of sale can be inspected at the offices of the Sheriff of the High Court, Roodepoort North, address as above,
the Sheriff who will be holding the sale, and will also be read out by the Sheriff prior to the sale in execution.
The Execution Creditor, Sheriff and/or Plaintiff’s attorneys do not give any warranties with regard to the description and/or
improvements.
Erf 156, Ruimsig Extension 46 Township, Registration Division I.Q., the Province of Gauteng, measuring 986 (nine hundred
and eighty-six) square metres, held by Deed of Transfer No. T34793/2006, subject to the conditions therein contained and
especially to the reservation of rights to minerals (also known as 156 Serengeti Estate, Baansyfer Street, Ruimsig
Extension 46, Roodepoort, Gauteng).
Improvements (not guaranteed): Vacant land.
Velile Tinto & Associates, Tinto House, cnr Solomon Mahlangu (previously Hans Strijdom) & Disselboom Streets,
Wapadrand; DX 178, Pretoria; PO Box 733, Wapadrand, 0050. Tel No. (012) 807-3366. Fax No. (012) 807-5299.
(Ref: U14479/DBS/D Maduma/A Smit/CEM.)

ABSA BANK LIMITED, Plaintiff, and MARTHINUS JACOBUS VAN DER MERWE,

absa

In the matter between: ABSA BANK LIMITED, Plaintiff, and MARTHINUS JACOBUS VAN DER MERWE,
1st Defendant, and JACOBYN VAN DER MERWE, 2nd Defendant
NOTICE OF SALE IN EXECUTION
Notice is hereby given, in accordance with the Regulations of the Consumer Protection Act 68 of 2008, that:
In pursuance of a judgment granted on 18 February 2014 and a warrant of execution of the above-mentioned Honourable
Court, a sale in execution will be held by the Sheriff Pretoria North East, at 1281 Church Street, Hatfield, Pretoria, on 5 August
2014 at 10h00, consist of:
Portion 2 of Erf 14, Jan Niemand Park Township, Registration Division J.R., Province of Gauteng, measuring 744 (seven
four four) square metres, held by Deed of Transfer T123357/2007.
Coordinates (lat/long): 25.702386/28.286705.
Property type: Freehold.
Known as: 189 Uil Street, Jan Niemanpark.
Particulars of the property and the improvements thereon are provided herewith, but are not guaranteed:
Improvements: 1 x lounge, 1 x dining-room, 3 x bedrooms, 1 x kitchen, 1 x bathroom, 1 x toilet, 1 x carport.
A copy of the Regulations of Act 68 of 2008, as aforementioned, can be obtained from: http://thornton.co.za/resources
/34180 rg515 gon293.pdf
Inspect conditions at Sheriff Pretoria North East, 102 Parker Street, Riviera, Pretoria. Tel: (012) 329-6024/5.
Tim du Toit & Co Inc. Tel: (012) 470-7777. (Ref: N Rappard/AK/PR2375.)

ABSA BANK BEPERK en HENDRIK MACHIEL PITZAR

absa

In die saak tussen: ABSA BANK BEPERK, Eiser, en HENDRIK MACHIEL PITZAR, ID No. 6207095031089,
1ste Verweerder, en SANDRA PITZAR, ID No. 8305270221083, 2de Verweerder
KENNISGEWING VAN GEREGTELIKE VERKOPING
Ten uitvoerlegging van ’n vonnis in bogemelde Agbare Hof gedateer 21 Junie 2013 en ’n lasbrief tot uitwinning, word die
volgende eiendom in eksekusie verkoop op Dinsdag, 24 Junie 2014 om 10h00, by die Balju, Modimolle, te Hagenstraat 108,
Modimolle, aan die hoogste bieder.
Eiendom bekend as: Gedeelte 3 van Erf 86, Nylstroom Dorpsgebied, Registrasieafdeling K.R., Limpopo Provinsie, groot
767 (sewe ses sewe) vierkante meter, gehou kragtens Akte van Transport T155108/2007 onderhewig aan die voorwaardes
daarin vervat ook bekend as 86 Paul Krugerstraat, Nylstroom.
Verbeterings: Die verbeterings op die eiendom, ten aansien waarvan niks gewaarborg word nie, bestaan uit:
Sitkamer, kombuis, 2 badkamers, 2 slaapkamers, 1 motorhuis, plaveisel, omheining. Sonering: Woning.
1. Terme: Die koopprys sal betaalbaar wees soos volg:
1.1 ’n Deposito van 10% (tien persent) van die koopprys sal onmiddellik betaalbaar wees in kontant of bank-gewaarborgde
tjek by verkoping daarvan; en
STAATSKOERANT, 6 JUNIE 2014 No. 37704 207
This gazette is also available free online at www.gpwonline.co.za
1.2 Die balans betaalbaar binne 21 (een en twintig) dae by wyse van ’n goedgekeurde bankwaarborg.
2. Voorwaardes: Die volle voorwaardes van verkoping wat onmiddellik voor die verkoping uitgelees sal word, lê ter insae
by die kantoor van die Balju, Hooggeregshof, Modimolle, Hagenstraat 108, Modimolle.
3. Neem verder kennis dat:
Reëls van hierdie veiling is beskikbaar 24 uur voor die veiling by die kantoor van die Balju, Modimolle.
Registrasie as ’n koper, onderhewig aan sekere voorwaardes, word vereis i.e.:
(a) Inligting van die Verbruikers Beskerming Wet 68 van 2008 (URL http://www.info.gov.za/view/DownloadFileAuction?id=99961).
(b) FICA-wetgewing in verband met identiteit en adres besonderhede.
(c) betaling van registrasiegelde.
(d) registrasie voorwaardes.
Geteken te Pretoria op hierdie 21ste dag van Mei 2014.
W de Wet, Snyman De Jager Ingelyf, 6de Vloer, Bureau Forumgebou, Bureaulaan, Pretoria, Gauteng; Posbus 565, Pretoria,
0001. Docex 7, Pretoria, Gauteng. [Tel: (012) 326-1250/Faks: (012) 326-6335.] (Verw. Mnr A. Hamman/N. Naude/EMV/F0004398.)
Aan: Die Balju van die Hooggeregshof, Modimolle.

ABSA BANK LIMITED and THULILE HAPPINESS MZIZI

absa

In the matter between: ABSA BANK LIMITED, Plaintiff, and THULILE HAPPINESS MZIZI N.O., duly appointment
Executrix in the estate of the late VUSUMUZI THAMSANQA KHOZA in terms of section 18 (3) of the Administration of
Estates Act, No. 66 of 1965 (as amended), Defendant
NOTICE OF SALE IN EXECUTION (IMMOVABLE PROPERTY)
In pursuance of a judgment granted by this Honourable Court on 25 October 2013, and a warrant of execution issued thereafter,
the undermentioned immovable property will be sold in execution without reserve by the Sheriff of the High Court Durban
Coastal, at the Sheriff’s Office, Durban Coastal, 25 Adrian Road, Windermere, Morningside, Durban, on 19 June 2014 at 10h00,
to the highest bidder.
Full conditions of sale can be inspected at the offices of the Sheriff of the High Court, Durban Coastal, address as above,
the Sheriff who will be holding the sale, and will also be read out by the Sheriff prior to the sale in execution.
The Execution Creditor, Sheriff and/or Plaintiff’s attorneys do not give any warranties with regard to the description and/or
improvements.
188 No. 37704 GOVERNMENT GAZETTE, 6 JUNE 2014
This gazette is also available free online at www.gpwonline.co.za
A unit consisting of—
(a) Section No. 8, as shown and more fully described on Sectional plan No. SS183/1992, in the scheme known as Valence
House in respect of the land and building or buildings situated at Durban, Local Authority of Durban, of which
section the floor area according to the said sectional plan is 33 (thirty-three) square metres in extent; and
(b) an undivided share in the common property in the scheme apportioned to the said section in accordance with the
participation quota as endorsed on the said sectional plan, held by Deed of Transfer No. ST14038/1994 (also known as Door
4 Valence House, 53 Maud Mfusi Street, Durban, KwaZulu-Natal).
Improvements (not guaranteed): Lounge, kitchen, bathroom.
Take further notice that:
1. This sale is a sale in execution pursuant to a judgment obtained in the above Court.
2. The Rules of this auction are available 24 hours prior to the auction at the office of the Sheriff for Durban Coastal at 25
Adrain Road, Windermere, Morningside, Durban.
3. Registration as a buyer is a pre-requisite subject to specific conditions, inter alia:
• Directive of the Consumer Protection Act 68 of 2008.
(URL http://www.info.gov.za/view/DownloadFileAction?id=99961).
• FICA-legislation i.r.o. proof of identity and address particulars.
• Payment of registration deposit of R10 000.00 in cash.
• Registration of conditions.
The office of the Sheriff for Durban Coastal will conduct the sale with auctioneers GS Ndlovu and/or DM Dlamini (Deputy
Sheriff).
Advertising costs at current publication rates and sale costs according to Court Rules apply.
Velile Tinto & Associates, Tinto House, cnr Solomon Mahlangu (previously Hans Strijdom) & Disselboom Streets,
Wapadrand; DX 178, Pretoria; PO Box 733, Wapadrand, 0050. Tel No. (012) 807-3366. Fax No. (012) 807-5299. (Ref: U15033/
DBS/D Maduma/A Smit/CEM.)

ABSA BANK LIMITED and JULIA MASUFI

absa

In the matter between: ABSA BANK LIMITED, Plaintiff, and JULIA MASUFI N.O., duly appointed Executrix in the estate
of the late JULIUS VINCENT MKHWANAZI in terms of section 13 and 14 of the Administration of Estates Act, No. 66 of
1965 (as amended), Defendant
NOTICE OF SALE IN EXECUTION (IMMOVABLE PROPERTY)
In pursuance of a judgment granted by this Honourable Court on 6 September 2013, and a warrant of execution issued
thereafter, the undermentioned immovable property will be sold in execution without reserve by the Sheriff of the High Court,
Soshanguve, at the Magistrate’s Court, Block H, Soshanguve, across from Police Station, on 26 June 2014 at 11h00, to the
highest bidder.
Full conditions of sale can be inspected at the offices of the Sheriff of the High Court, Soshanguve, Stand E3, Mabopane
Highway, Hebron, the Sheriff who will be holding the sale, and will also be read out by the Sheriff prior to the sale in execution.
The Execution Creditor, Sheriff and/or Plaintiff’s attorneys do not give any warranties with regard to the description and/or
improvements.
Erf 297, Soshanguve East Township, Registration Division J.R, Province of Gauteng, measuring 255 (two hundred and fiftyfive)
square metres, held by Deed of Transfer No. T22661/1998, subject to all such conditions as are mentioned or referred to
in the aforesaid Deed and specially subject to the reservation of mineral rights (also known as 1613 Block G, Soshanguve East,
Gauteng).
Improvements (not guaranteed): Lounge, kitchen, bathroom, 3 bedrooms.
Velile Tinto & Associates, Tinto House, cnr Solomon Mahlangu (previously Hans Strijdom) & Disselboom Streets,
Wapadrand; DX 178, Pretoria; PO Box 733, Wapadrand, 0050. Tel No. (012) 807-3366. Fax No. (012) 807-5299. (Ref:
U13707/DBS/D Maduma/A Smit/CEM.)

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