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[2018] ZAWCHC 136
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Changing Tides 17 (Proprietary) Limited v Turner; Changing Tides 17 (Proprietary) Limited NO and Others (5773/18; 9707/18) [2018] ZAWCHC 136 (26 September 2018)
IN THE HIGH COURT OF
SOUTH AFRICA
(WESTERN CAPE
DIVISION, CAPE TOWN)
Case
No: 5773/18
In the matter between:
CHANGING
TIDES 17 (PROPRIATARY)
LIMITED
Applicant/Plaintiff
and
JUSTIN
FABIAN
TURNER
Respondent/Defendant
Case
No: 9707/18
In
the matter between:
CHANGING
TIDES 17 (PROPRIATARY) LIMITED
N.O
.
Applicant/Plaintiff
and
CANDICE
WILMA
JONES
First
Respondent/Defendant
CANDICE
WILMA JONES N.O.
Second
Respondent/Defendant
RUDOLF
DAVID
MACKAY
Third
Respondent/Defendant
Date heard: 14
September 2018
REASONS FOR THE ORDER: 26
SEPTEMBER 2018
SALDANHA
J:
[1]
The above two matters served before this court in the unopposed third
division on the 14 September 2018, as applications for
default
judgment.
[2] In respect of each of
the matters I made the following orders:
“
Case
No: 5773/18
IT IS ORDERED THAT:
1.
This default judgment application is
postponed sine die to allow the Plaintiff to issue an application to
have the bonded property
declared specially executable (“the
execution application”) and set down for hearing simultaneously
with this application;
2.
The Plaintiff is directed, either by
way of a schedule to the particulars of claim or by way of further
explanation contained in
the execution application, to provide a
further and better explanation of the interest rates applicable and
the acronyms contained
in paragraph 3.1.6 of the particulars of claim
as well as the connection between the various agreements pleaded in
the particulars
of claim.
3.
The costs occasioned by today’s
postponement stand over for later determination.”
“
Case
No: 9707/18
IT IS ORDERED THAT:
1.
This default judgment application is
postponed sine die to allow the Plaintiff to issue an application to
have the bonded property
declared specially executable (“the
execution application) and set down for hearing simultaneously with
this application;
2.
The Plaintiff is directed, either by
way of a schedule to the particulars of claim or by way of further
explanation contained in
the execution application, to provide a
further and better explanation of the interest rates applicable and
the acronyms contained
in paragraph 1.4.6 of the particulars of claim
as well as the connection between the various agreements pleaded in
the particulars
of claim.
3.
The costs occasion by today’s
postponement stand over for later determination.”
These are the reasons
for the orders;
[3]
The claims in both of the matters arose out of the defendants’
breach of loan agreements which loans are secured by indemnity
bonds. In respect of the Turner matter (Case No.: 5773/18 the
loan agreement had been entered into on the 8
th
August 2014 at Bellville between Main Street 65 Proprietary Limited
(a credit provider duly registered as such in terms of the
NCA, under
No. NCRCP1725), as Lender (the lender) and the defendant as borrower
(the borrower).
[4]
In respect of the Jones and Mackay matter (Case No.: 9707/18) on the
3
rd
October 2014 a loan agreement was entered into between Alpha Housing
Warehouse (RF) (Proprietary) Limited (Registration Number
2012/215104/07), (which is registered as a credit provider in terms
of
Sections 40
and
45
of the
National Credit Act No.34 of 2005
under
No. NCRCP), as lender and the first defendant Candice Wilma Jones
(Identity Number 831203 0150 081) who was married to Clifton
Jones
(the deceased) in community of property at No.: 5 Petunia Court,
Belhar, 7493. The Second Defendant is Candice Wilma
Jones in
her capacity as executrix of the Estate Late Clifton Jones. The
third Defendant is Rudolf David Mackay (Identity
Number 851121
5143080 an adult male at 49 Abraham Street, Ravensmead, Parow, 7493.
[5]
In respect of the Turner matter, the Trustees for the time being of
the South African Home Loans Guarantee Trust (Master’s
Reference number IT/10713/00) (the Guarantor) at Main Street 65
Proprietary Limited it successors-in-title and assigns (Creditor)
entered into a Common Terms Agreement (the Agreement) dates 5 October
2001 on various terms and conditions as reflected in the
Guarantee.
[6]
In the Jones - Mackay matter, the Trustees for the time being of the
South African Home Loans Guarantee Trust (Master’s
Reference
number IT10713/00) Guarantor and Alpha Housing Warehouse (RF)
Proprietary Limited its successors-in-title and assigns
(Creditor)
entered into a Common Terms Agreement (the Agreement ) dated 7
October 2013 on various terms and conditions.
[7]
The suite of transactions between the various entities are referred
to and described in the Particulars of Claims in both matters.
Needless to say they are complex in nature, intricate and not easily
understandable.
[8] In the course of the
hearing of the application, the court enquired from counsel who
appeared on behalf of the applicants to
explain the meaning of a
paragraph found in both matters namely;
“
[3.1.6]
The full amount outstanding from time to time would bear interest at
the mid-market rate for deposits in South African Rand
for a period
of three months, which appears on the Reuters Screen, SAFEY page
under the caption “yield” as of approximately
11:00AM
Johannesburg time on the date of registration of the indemnity bond
referred to below and would be reset thereafter on
the same basis on
the 21 February, 21 May, 21 August and 21 November (or, if that day
is not a business day, the immediately succeeding
business day) (the
JIBAR rate) converted to and expressed as a nominal annual rate,
compounded monthly, rounded up to the nearest
first decimal point
(the BASE rate) , plus 3.20% as reflected in part “B” of
the loan agreement, which together constitutes
the interest rate;..”
[9]
Counsel for the applicant candidly informed the court that it was not
apparent from the Particulars of Claim as to exactly what
was meant
by the various references in respect of the calculation of the
interest rate on the outstanding amounts owed from time
to time; save
for the fact that it was contained in the particulars of claim.
[10]
The Particulars of Claim is a lengthy document with several
annexures. In my view it is not easily understandable by
a lay
defendant who is required to understand the nature of the suite of
agreements and also his/her indebtedness to a plaintiff
and the
intricate calculations. In my view it appears that the
Particulars of Claim are not in accordance with the provisions
of
section 22
of the
Consumer Protection Act 68 of 2008
read together
with
section 1
which places an obligation on a producer of documents
to do so in plain language and cognizant of the context,
comprehensiveness,
vocabulary usage that an ordinary consumer would
readily understand. Inasmuch as the applicants may contend that
the
Consumer Protection Act, 68 of 2008
is not applicable to the
Particulars of Claim, I am nonetheless satisfied that on a reading of
the Particulars of Claim it should
be set out in plain language
comprehensible to a lay person.
[11]
For these reasons the court requested that the defendants in each of
the matters be provided with a document either by way
of a Schedule
to the Particulars of Claim or by way of an explanatory note in the
execution application that provides a further
and better explanation
of the interest rates applicable and the acronyms contained in the
paragraphs relating to the interest rate
as well as an explanation
with regard to the various agreements pleaded in the Particulars of
Claim.
[12] Counsel for the
applicant very co-operatively obliged and on that basis prepared
draft orders which I made orders of court.
------------------------------
SALDANHA
J
Appearance:
For
the Applicant: Mr Ross Randall