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[2011] ZAGPJHC 70
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Standard Bank of South Africa Limited v Tellinger (13340/2011) [2011] ZAGPJHC 70 (3 August 2011)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN THE SOUTH GAUTENG
HIGH COURT, JOHANNESBURG
(REPUBLIC OF SOUTH
AFRICA)
CASE NO : 13340/2011
DATE:03/08/2011
In the matter between:
THE
STANDARD BANK OF SOUTH AFRICA
.
LIMITED
[Registration
No : 1962/000738/06]
Applicant
And
TELLINGER,
MICHAEL JULIUS
Respondent
JUDGMENT
BAVA
AJ
:
[1] The Applicant brings
an application for an order seeking:
[1.1] Payment of
the sum of R890 111,30 from the Respondent.
[1.2]
Interest on the above amount at the legal rate of 15.5% per annum a
tempore morae,
alternatively
interest at the rate of 9% per annum from 2
February 2011 to date of payment.
[1.3] Costs of suit on an
attorney and own client scale.
[1.4] Declaring that the
property described as 926 Somerset Extension 18, Midrand,
approximately 450 square metres in extent, be
(declared) executable.
[2] Applicant was
represented by Counsel, Mr Chohan, and Respondent appeared
personally.
[3] The Applicant's
application is based on what it terms a written home loan agreement
which was entered into between the parties
on either the 26th of
February 2007 or
alternatively
on the 16th of March 2007
in terms of which the Applicant advanced the sum of R828 015,00 to
the Respondent.
[4] A continuing covering
mortgage bond was registered over the property described as 926
Somerset Extension 18, Midrand, in favour
of the Applicant on the
16th of November 2007.
[5] Applicant alleges
that the Respondent failed to make any of the monthly instalments due
under the home loan agreement since
2010.
[6] Applicant further
alleges that the Respondent was in arrears in the sum of R56 862,48
as at 2 February 2011 and that as at the
date of the Applicant's
replying affidavit, the Respondent remained in arrears as at that
date in the sum of R88 782,52.
[7] Applicant accordingly
alleges that the Respondent is in breach of the terms of the home
loan agreement and the mortgage bond
which entitles the Applicant to
the repayment of the full amount loaned to the Respondent and to an
order declaring the property
executable.
[8] The Respondent filed
an answering affidavit in terms of which he avers:
[8.1] that the Applicant
is a legal fiction created from the minds of man and has no
jurisdiction higher than the living sentient
human being;
[8.2] that the Applicant
has committed a commercial crime in terms of public policy by
applying an administrative process by which
an attempt is made to
collect money based on an implied agreement in law that has already
been accepted and settled by applying
the Bills of Exchange Act.
Furthermore the Respondent contends that the Applicant did not have
any right to pass his contact details
to any third party or to alter
his credit rating without his consent.
[9] The Respondent
further contends that he is not a member of the Law Society of South
Africa and as such not bound by their rules
or regulations and that
the documentation on which the Applicant's claim is based was not in
fact furnished to him.
[10] The Respondent also
contends that at no stage did he give the bank permission to proceed
against him. Furthermore the Respondent
contends that it is as a
result of his signature that the bank obtained the monies and
therefore, despite paying for a period of
2 years, he is not obliged
to pay the Applicant any monies as it was a self-financing
transaction and that his signature created
value and he further
contended that in terms of the Bill of Rights and in terms of the
Bills of Exchange Act, he is not obliged
to continue paying the bank
at all as he does not owe the bank any monies.
[11] At the hearing of
the matter, the Respondent submitted what he termed a further
affidavit which he then agreed was his head
of argument and not a
further affidavit.
[12] During the
argument, I engaged both parties regarding the execution of the
property and I expressed particular concern
regarding the execution
of the primary residence. Respondent conceded that the property in
question was not his primary residence
and in fact he had let it out
and was obtaining rentals from the said property.
[13] It is trite that an
application not only takes the place of a declaration in an action
but also of essential evidence to be
led at trial. Accordingly, an
application must include facts necessary for the determination of the
issue in the Applicant's favour.
Bezuidenhout v Otto
1996 (3) SA 339
(W)
[14] In terms of the
Uniform Rules of Court and more particularly Rule 6(1) it indicates:
"Save where
proceedings by way of petition are prescribed by law, every
application shall be brought on notice of motion supported
by an
affidavit as to the facts upon which the Applicant relies for
relief."
[15] In the case of
Goodwood Municipality v Rabie 1954 (2) SA404 (C), De Villiers JP in
quoting Bell, Legal Dictionary and Van Zyl's
Judicial Practice
states:
"(A)n
affidavit is a statement in writing sworn to before someone who has
authority to administer an oath. An affidavit means
a solemn
assurance of a fact known to the person who states it, and sworn to
as his statement before some person in authority,
such as a judge, or
a magistrate, or a justice of peace, or a commissioner of the court,
or a commissioner of oaths. "
1
[16] In considering an
application before me, I need to consider the averments made to
sustain a cause of action as well as the
evidence in support of such
a claim.
[17] In Bayat and Others
v Hansa and Another
1955 (3) SA 547
(N), Caney J, in quoting
Mauerberger v Mauerberger 1948 (3) SA731 (C) cited and summarised the
principle in respect of what the
Applicant has to produce in its
affidavits and he stated as follows:
that
an applicant for relief must (save in exceptional circumstances) make
his case and produce all the evidence he desires to use
in support of
it, in his affidavits filed with the notice of motion, whether he is
moving ex parte or on notice to the Respondent,
and is not permitted
to supplement it in his replying affidavits less make a new case in
his replying affidavits.'
2
[18] After hearing
argument and on closer examination of the application, it is noted
that the Applicant's founding affidavit is
deposed to by one Jakob
Jan Dekker who indicates that he is :
"I am an adult male
Senior Manager in the Complaints Area of the office of the Chief
Executive Officer of the Applicant and
I am more commonly known as
Joop Dekker."
[19] At paragraph 3 of
the founding affidavit, Mr Dekker indicates that the facts are within
his personal knowledge. However, it
is not apparent how Mr Dekker,
being a senior manager in the complaints area of the office of the
Chief Executive Officer of the
Applicant has any knowledge in respect
of:
[19.1]
the agreements concluded;
[19.2]
the workings or operations of the home loan
department;
[19.3]
the knowledge of the debt situation of the
Respondent;
[19.4]
the agreements concluded between the parties;
[19.5] the interactions
between the home loans department of the Applicant and the
Respondent.
[20] In the case of The
Master v Slomowitz
1961 (1) SA 669
(T), Jansen J states:
"In
general an application must be based on proper evidence (not e.g.
hearsay) and it must appear from the petition and annexures
as a
whole that the foundation for relief is so evidenced - it is not
merely a question of the petitioner stating that the facts
are within
his personal knowledge. The very nature of the papers may belie such
a statement even though it does appear; or make
it unnecessary where
it is absent. It may, however, be that, where an application is
brought personally there is an initial assumption
in most cases that
the facts are within the Applicant's knowledge, whilst the converse
is true in a case where it is brought in
a representative capacity.
'
3
[21] In considering the
affidavit and before I can take the evidence into account, I have to
be satisfied that the deponent is someone
who would ordinarily be
presumed to have personal knowledge of the matter. I cannot accept
that any employee of the Applicant bank
is able to testify to the
facts in the matter. This will lead to an absurdity. The deponent has
to allege the necessary facts in
order fallow a court to conclude
that the information that he presents to court are within his
knowledge.
[22] Affidavits by branch
managers of a bank and the branch manager's assistant have been held
to be sufficient in that such persons
are people who would ordinarily
have knowledge of the relevant facts. Persons from the home loan
department and indeed Mr Dekker
would also have personal knowledge if
he is able to indicate in his affidavit what his relationship is to
the home loans department
or the department dealing with the
institution of actions against defaulters of such loans. However, for
Mr Dekker to simply indicate
that he is a Senior Manager in the
Complaints Area of the office of the Chief Executive Officer does
not, in my view, go far enough
and Mr Dekker does not make any
further allegations in the affidavit indicating the basis on which I
am to hold that he does indeed
have knowledge of the facts to which
he is attesting.
[23] In having considered
the matter, I am not convinced that the Respondent has made out a
proper defence. The Respondent has attempted
to articulate a reason
for not paying the Applicant with which reasoning I am unable to
agree. However, before I am to interrogate
the Respondent's defence
in detail, I need to be convinced that the Applicant has made out its
case. In this regard, I do not find
that the Applicant's witness had
sufficiently qualified himself and accordingly I am unable to take
into account the evidence of
the Applicant.
[24] Accordingly, I have
to consider what would be just in the
circumstances. I make no determination
on the merits of the matter or
to the rights of the Applicant to proceed by way of application in
the particular circumstances.
However, on the other hand the
Respondent has not provided a proper defence to a home loan
agreement. In being faced with the situation
where I am unable to
have regard to the evidence of the Applicant and where there is no
proper defence, I am of the view that it
would be just, in the
circumstances, to allow the Applicant to supplement its founding
affidavit in order to remedy the defect.
Accordingly I make the
following order:
The order
1.
The Applicant is allowed leave to supplement its
founding affidavit;
2.
The Respondent is afforded the opportunity of
answering thereto within 15 (fifteen) days of the supplementary
affidavit being served
on him;
3.
The Respondent is afforded the opportunity of
replying to such answer within 10 (ten) days of the answer being
served on it;
4.
The issue of costs is reserved for determination
by the Court ultimately hearing this application.
BAVA AJ
1
Goodwood
Municipality v Rabie
supra
at
406 B-C
2
Bayat
and Others v Hansa and Another
supra
at 553 C-G
3
The
Master v Slomowitz supra at page 672 B