IN
THE HIGH COURT OF SWAZILAND
a:
Bsociety
1
SWAZILAND
BUILDING SOCIETY
vs
KALANGA
(PTY) LTD
Case
No. 1496/97
Coram
S. W. Sapire
For
Plaintiff Mr. Flynn
For
Defendant Mr. B. Simelane
Judgment
(16/12/97)
The
plaintiff has applied for summary judgment. The summons commencing
action is a claim for monies lent and advanced in terms of three
mortgage bonds. The total amount which is said to be owing is E194
527.85 The amount the plaintiff claims, together with interest
calculated at the rate of 19.5% per annum is calculated from the date
of the summons to date of payment. The plaintiff further seeks an
order declaring the property mortgaged in terms of the bonds numbered
39/1989, 22/1990 and 151/1990 to be executable.
In
addition the plaintiff seeks costs on the scale as between attorney
and client.
In
support of the application for summary judgment an affidavit has been
filed which was attested to by Nigel Caplen, the managing Director of
the plaintiff The affidavit is in the usual form and appears to
comply with the provisions of the rule relating to summary judgement.
The
application is opposed by the defendant which has caused an affidavit
to be filed. This affidavit is attested to by one Michael Temple, on
26 January 1998
In
the first instance Temple, denies that the defendant has no bona fide
defence to the Plaintiff's claim and that the notice of intention to
defend was not given solely for the
a:
Bsociety
2
purpose
of delay. This of course is a conclusion of law, which examined in
the light of the facts advanced in support thereof, turns out to be
ill founded.
The
first point taken in the opposing affidavit is that Nigel Caplen does
not disclose any basis of authority for him to depose to the
affidavit. This is a bad point and 1 have on a number of occasions
pointed out that no deponent to any affidavit requires any authority
to provide evidence of facts within his knowledge. The act of
attesting an affidavit is the same as giving evidence and is the
personal act of the witness for which he requires no authority.
Turning
to paragraph 4 of the affidavit in which the so called defence on the
merits is outlined, Temple submits that as at the end of May 1997
defendant was not owing the sum of El5 449.12. It is claimed that in
terms of the agreement of repayment the defendant should as between
September 1995 and May 1997 have paid the sum of E79 380.00.but that
between September 1995 and May 1997 the defendant had paid the sum of
E71 482.75 leaving a balance of E7 897.25 as the arrears. In the
following paragraph the deponent says that the difference was caused
solely by the plaintiff's inconsistencies in calculating interest on
the balance. Reference is made to what has been numbered annexure
"A2". The deponent points to examples of what are said to
be discrepancies and inconsistences in the calculation of interest.
These so-called discrepancies are not only explained by Caplen in an
altering affidavit but in themselves do not show how the admitted
arrears are in fact eliminated.
The
deponent claims not to be aware of any notice of increase or decrease
in the interest rate during the period but reference to the accounts
that have been filed both by the plaintiff and the defendant makes it
is quite clear that the defendant was informed of and responded to a
notice regarding the payment of interest. This is apparent from the
fact that payments were made in terms of the notice which had been
given.
I
am satisfied that the defendant has no bona fide defence to the
applicant's claim and that indeed the notice of intention to defend
was given merely to procrastinate. The judgment will therefore be
entered against the defendant for payment of the sum of E194 527 85
together with interest on the said sum at 19.5% pa calculated from
the date of summons to the date of payment. It is further ordered
that the properties mortgaged in terms of mortgage bond numbered
39/1989, 22/1990 and 151/1990 are executable. The defendant is to pay
the costs of this action and such costs may be taxed on the scale
applicable to attorney and client.
S.W.
SAPIRE
ACTING
CHIEF JUSTICE
