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[2014] ZAGPJHC 106
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Absa Bank Ltd v Van Wyk (22948/2013) [2014] ZAGPJHC 106 (6 May 2014)
REPUBLIC OF SOUTH
AFRICA
IN THE HIGH COURT
OF SOUTH AFRICA
GAUTENG LOCAL
DIVISION, JOHANNESBURG
CASE
NO: 22948/2013
DATE:
06 MAY 2014
In the matter
between:
ABSA BANK
LTD
............................................................
Applicant
And
VAN WYK,
DEON
......................................................
Respondent
J U
D G M E N T
MASHILE, J:
[1] The parties
entered into a loan agreement which was subsequently secured by the
registration of a mortgage bond over the Respondent’s
immovable
property being PORTION 1 OF ERF 250 BEDFORDVIEW EXTENSION 68
TOWNSHIP. When the Respondent experienced financial difficulties
the
parties agreed to enter into what they called a “Help-You-Stay”
agreement whose main objective was to reduce the
monthly instalments
by 50%. The reduced instalments would however escalate at 10% every
6th month until the Respondent had financially
recovered such that he
could revert to his normal monthly instalments as per the mortgage
bond.
[2] The Respondent
defaulted with his instalments under the new arrangement prompting
the Applicant to institute an action against
him claiming:
2.1 Payment of the
sum of R2,609,570.88;
2.2 Interest on the
sum of R2,609,570.88 at the rate of 8.50% per annum calculated and
capitalised monthly in arrears, from 04 JUNE
2013 to date of payment,
both dates inclusive;
2.3 An order
declaring certain PORTION 1 OF ERF 250 BEDFORDVIEW EXTENSION 68
TOWNSHIP, REGISTRATION DIVISION I.R., PROVINCE OF GAUTENG,
MEASURING
1761 (ONE THOUSAND SEVEN HUNDRED AND SIXTY ONE) SQUARE METRES, Held
under Deed of Transfer T50825/07 specially executable;
2.4 An order
authorizing the Registrar of the above Honourable Court to issue a
Writ of Attachment in respect of the Respondent’s
immovable
property; and
2.5 Costs to be
taxed on the attorney and client scale.
[3] The Respondent
defended the action and the Applicant, believing that the Respondent
was defending solely to delay the matter,
launched this summary
judgment application. The Respondent has raised lack of personal
knowledge of the deponent to the Applicant’s
affidavit in
support of summary judgment as a point in limine. On the merits, he
asserts that the loan agreement and the mortgage
bond by which it was
secured were novated by the “Help-You-Stay” agreement.
It is under that novated agreement that
the Respondent maintains that
he is not in arrears with his instalments.
[4] I have noted
that notwithstanding that the answering affidavit makes no reference
to a point in limine, Counsel for the Respondent
has nonetheless
raised it in his heads. Counsel for the Applicant too has despite
noting that the point was not taken in the Respondent’s
papers
addressed it regardless. I do not intend to dwell on the point in
limine as I do not want to be detained with matters that
were not
raised in the founding papers.
THE DEPONENT’S
LACK OF KNOWLEDGE TO SWEAR POSETIVELY TO THE FACTS, TO VERIFY THE
CAUSE OF ACTION AND AMOUNT CLAIMED
[5] With the
plethora of recent cases on the subject holding that a corporate
employee in the same situation as in casu has personal
knowledge and
can swear positively to the facts, I am inclined to regard this
defence as frivolous and of course an abuse of the
court processes
especially regard being had to the manner in which it was raised.
[6] Ms Sabashnee
Naidoo states in her affidavit that:
“The facts
stated herein set out fall within my personal knowledge and are true
and correct.
I am a secured home
loans recoveries manager in the retail bank collections department of
the plaintiff. In my capacity as such
I presently manage the
Defendant’s account with the plaintiff and have direct control
over the plaintiff’s files and
computer records pertaining to
the defendant’s account.
I can and do
positively swear to the facts set out in the plaintiff’s
summons. I also hereby verify the plaintiff’s
cause of action
and confirm that the defendant is indebted to the plaintiff in the
amount claimed and on the grounds stated in
the plaintiff’s
summons.”
[7] Firstly, Counsel
for the Applicant referred to the case of First Rand Bank Ltd v Carl
Beck Estates (Pty) Ltd & Another
2009 (3) SA 384
(GSJ) Satchwell
J considered a similar defence. She dealt with the deponent’s
position at work, his responsibilities, his
possession of personal
knowledge and that he could swear positively to the facts and
concluded:
“He is indeed
pre-eminently the person who would have knowledge of the relevant
facts. It may well be that the ‘relationship
managers’
with whom the second respondent dealt created or accessed that same
records and documentation to which the deponent
had access and upon
which he relied In deposing to the affidavit.”
See also Maharaj v
Barclays National Bank
1976 (1) SA 418
(A) to which Counsel for the
Applicant referred this court, and Firstrand Bank Ltd v Ego
Specialised Services CC 2012 JDR 0057
(GSJ). In view of those cases
I find that the Respondent’s defence is devoid of any merit and
it is accordingly rejected.
THE RESPONDENT HAS
COMPLIED WITH ITS OBLIGATIONS UNDER THE NOVATED AGREEMENT
[8] I turn now to
the Respondent’s defence on the merits, which is in short as
stated above. The Respondent’s contention
is in essence that
the original loan agreement and mortgage bond which secured it have
been novated. This is despite the express
provisions of the parties
in Clause 8.4 of the “Help-You-Stay” agreement to the
contrary. Clause 8.4 of the “Help-You-Stay”
agreement
provides:
“No addition
to, variation, novation or agreed cancellation of any provision of
this agreement shall be binding upon the parties
unless reduced to
writing and signed by or on behalf of all the parties.”
[9] Although the
attached “Help-You-Stay” agreement is signed only by the
Respondent, the Applicant admits having concluded
it with the
respondent. That it is signed by one party is therefore of no
consequence to its validity and applicability.
[10] The Respondent
relies on Clause 8.4, its ousting of intention to novate
notwithstanding. The presence of the clause unequivocally
demonstrates that the parties never intended that the “Help-You-Stay”
agreement should be a novation. If intention
is central to voluntary
novation, the Respondent’s contention to the opposite stands to
be dismissed.
[11] I note that
Counsel for the Applicant has conscientiously dealt with this giddy
defence, which in my opinion he should not
have done. I say so in
view of the clear intention of the parties as articulated in the
“Help-You-Stay” agreement.
I will therefore not go to
great lengths to elaborate on novation. It should suffice to state
that the Respondent’s reliance
on that agreement is totally
untenable and must be rejected. Even if one were to accept that the
securities have been novated,
the Respondent, as will be seen below,
has dismally failed to demonstrate that he has effected payment as
agreed.
[12] The Respondent
also makes a bald allegation that he has been paying as contemplated
in the “Help-You-Stay” agreement
yet he fails to
illustrate to this court why he is in arrears in the amount cited by
the Applicant in its papers. He does not
for a moment even attempt
to challenge the Applicant’s calculations by putting forward
the total amount that he has paid.
[13] Obviously, if
the Applicant’s claim is that it did not receive the money, one
would have expected the Respondent to confute
that contention by
possibly showing an account into which it deposited the agreed
monthly instalments. It is inexorable to conclude
that the
Respondent is indeed in arrears when one has regard to the obscure
manner in which he deals with his payments. Clause
3.1.4 of the
“Help-You-Stay” agreement provides:
“If the
debtors fail to comply with this agreement in full the full monthly
instalment due under the credit agreement shall
immediately be due,
owing and payable and the Bank may, amongst other rights that it may
have, immediately proceed to sell one
or more of the properties,
either as provided for in Clause 4 or through a sale in execution.”
[14] The presence of
the acceleration clause makes it clear that the intention of the
parties was not to replace the original securities
but rather to
assist the Respondent to recover financially so that he could revert
to his original monthly instalments. A default
by the Respondent
under this agreement entitles the Applicant to invoke the provisions
of the original mortgage bond by allowing
it to claim the whole
amount due thereunder.
[15] In the result
the application for summary judgment succeeds and I make the
following order:
1. Summary judgment
is granted; and
2. The Respondent to
pay costs as at the scale between attorney and client
B MASHILE
JUDGE OF THE HIGH
COURT OF SOUTH AFRICA
GAUTENG LOCAL
DIVISION, JOHANNESBURG
COUNSEL FOR THE
Applicant: Adv. J A Swanepoel
INSTRUCTED BY:
Smit Sewgoolam Inc. Attorneys
COUNSEL FOR THE
Respondent: Adv. H P Van Nieuwenhuizen
INSTRUCTED
BY: Spencer Tarr Malan Geyer Inc.
DATE OF hearing:
26 November 2013
Date of judgment:
06 May 2014