- The North West High Court found that the commissioner of oaths’ link to the bank created reasonable doubt about independence.
- Judge A Reddy held that this defect undermined the affidavit used to support summary judgment.
- The court refused judgment and ordered that the dispute proceed to trial.
FirstRand Bank Limited’s attempt to secure summary judgment against Jan Abraham Christoffel Dry fell apart because of a problem with the commissioner of oaths who signed the affidavit.
What the bank had hoped would be a quick, uncontested judgment turned into a full trial after the court found it could not rely on the affidavit with confidence.
FirstRand sued Dry for payment of more than R264,000 and sought to have his Lichtenburg property executed against. To do so, the bank approached the High Court in the North West for summary judgment, a procedure that demands a clear and unanswerable case backed by a valid affidavit.
The claim stemmed from a mortgage bond originally registered in favour of Saambou Bank Limited. Those rights were later transferred through BOE Bank Limited to FirstRand.
Dry opposed the application and took direct aim at the affidavit at the heart of the bank’s case. He argued that it had been commissioned by an attorney linked to the bank’s panel, raising serious questions about whether the independence requirement had actually been met.
Court finds independence of commissioner is not optional
The court made clear that this was not a technicality to be brushed aside. Independence, it said, is a safeguard that goes to the very integrity of the process.
The affidavit was deposed to by Roy Gomes, a Manager in FirstRand’s Legal Recoveries division, and was commissioned on 6 February 2025 in Fairlands by Rita Nel, Head of the Legal Department at Glover Kannieoppan Inc, a firm used by the bank in its recoveries litigation.
Judge Reddy said, “The impartiality of the commissioner of oaths is not a mere formality but a substantive safeguard.”
The court accepted that a panel attorney is not a neutral outsider. Their ongoing professional relationship with the bank creates at least an indirect financial interest in the outcome of its litigation, and that raises real concern when the same attorney commissions an affidavit used to obtain judgment.
Judge Reddy wrote in the judgment, “A panel attorney has an indirect financial interest in the bank’s litigation, which strongly emphasises the appearance of impartiality requirement.”
The court found that the question was not whether actual bias had been proven, but whether compliance with the law was beyond doubt.
Judge Reddy said, “Whether this constitutes a disqualifying interest is, at the very least, a matter that raises reasonable doubt.”
Doubt over affidavit defeats summary judgment
Judge Reddy further stated, “Summary judgment is not intended to shut a defendant out of court where triable issues are disclosed.”
With reasonable doubt in play, the matter had to go through the ordinary trial process, where the evidence can be properly tested and challenged.
The court refused to grant summary judgment and allowed Dry to defend himself. The dispute will now go to trial, where FirstRand will have to prove its claim in full, this time without any shortcuts.
Judge Reddy concluded, “FirstRand’s case cannot be described as unanswerable.”
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