About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: South Gauteng High Court, Johannesburg
SAFLII
>>
Databases
>>
South Africa: South Gauteng High Court, Johannesburg
>>
2014
>>
[2014] ZAGPJHC 219
|
|
Firstrand Bank Limited v Malan and Another (33118/2010) [2014] ZAGPJHC 219 (28 July 2014)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
REPUBLIC OF SOUTH
AFRICA
IN THE HIGH COURT
OF SOUTH AFRICA
GAUTENG LOCAL
DIVISION, JOHANNESBURG
CASE
NO: 33118/2010
DATE:
28 JULY 2014
In the matter
between:
FIRSTRAND BANK
LIMITED
........................................
Applicant
And
MALAN:
JEAN-PAUL
.........................................
First
Respondent
MALAN:
GIPSY
...............................................
Second
Respondent
J U
D G M E N T
MPHAHLELE, J:
[1] The applicant’s
claim against the respondents is for payment of the sum of R2 237
606-10 and an order declaring the respondents’
immovable
property to be specially executable as well as some ancillary relief.
[2] The applicant’s
claim stems from a loan agreement concluded between the parties as a
result of which the respondents acknowledged
their indebtedness to
the applicant in the sum of R1 174 000-00 plus an additional amount
of R235 000-00. This loan was secured
by a mortgage bond registered
over the respondents’ immovable property situated at erf 1……
N……
R….. ext 30 township registration division
IQ, province of Gauteng better known as 2…. S….. C…...
H…..
Road, N……… R… Extension 3…..,
Randburg (“the property”). The mortgage bond is
registered
in both respondents’ names who were then married out
of community of property.
[3] The loan was to
be repaid in 240 monthly instalments commencing within thirty days of
28 September 2005 on or before the first
day of each month. The full
balance outstanding at any particular time would forthwith become
due, owing and payable in the event
of the respondents failing to
make any payment on due date;
[4] According to the
applicant the last payment was made on 01 November 2007 and as at 14
July 2010 (the time this application was
issued) the full balance
outstanding
was the sum of R2
237 606-10 together with interest thereon at the rate of 10% per
annum calculated and capitalised monthly in advance
from 30 June
2010. The said amount is due and owing by reason of the respondents’
failure to make payment of the instalments.
[5] The applicant
obtained a default judgment against both respondents on 22 October
2010. This judgment was subsequently set aside
against the first
respondent only on 08 February 2012. As a result only the applicant
and the first respondent appeared before
this court at the hearing of
this application. There are two issues before me for determination.
[6] The first issue
is whether the first respondent’s liability towards the
applicant is joint or joint and several with that
of the second
respondent. The applicant submitted that in terms of the loan
agreement only one amount of money was lent to both
respondents. The
respondents are further defined in the mortgage bond as mortgagor in
the singular. So the applicant maintains
that the respondents’
obligation towards the applicant is indivisible. Therefore the
applicant submitted that the respondents
are jointly and severally
indebted to the applicant.
[7] The first
respondent submitted that the applicant has failed to make reference
to joint and several indebtedness of the respondents
in all its
papers. The respondent further submitted that there is nothing in
either the loan agreement or the mortgage bond to
suggest that the
liability of the respondents is joint and several.
[8] The applicant is
confined to the cause and nature of its claim as set out in its
founding affidavit although sometimes it is
permissible to supplement
the allegations contained in the founding affidavit. A claim against
co-debtors must clearly state whether
their liability is joint or
joint and several. In the matter of Roelou Barry (Edms) Bpk v Bosch
en ‘n Ander
1967 (1) SA 54
(C) the headnote reads as follows:-
“Where a creditor institutes action against several debtors,
who have accepted joint
responsibility for the amount, without
indicating in his summons or pleadings that he wishes to recover from
each a proportionate
share of the total amount owing but yet without
indicating that the order he wishes the court to make is one in terms
of which
the debtors will be ordered to pay the amount jointly and
severally, then it ought to be accepted that he does not wish to
recover
from any of the debtors more than just his proportionate
share of the debt”.
[9] Regarding the
issue of joint or joint and several liability De Villiers CJ in De
Pass v The Colonial Government
(1886) 4 SC 383
at 390 stated that:-
“The general principle of our law relating to the liability of
co-obligors and the rights of co-obligors
is that, unless otherwise
agreed upon, the liability is joint, and the rights are held in
common. If, therefore, two or more persons
incur a joint obligation,
the general rule, subject to certain well-known exceptions, as in the
case of ordinary partnerships,
is that each is liable only for his
share and not in solidum”
[10] Joint and
several liability can therefore only arise if it is clear that it is
the intention of the parties to create it. If
nothing to the contrary
is provided in the contract and a contract is not a type which
automatically leads to joint and several
liability, the liability of
co-debtors is joint and not joint and several.
[11] In this
application the applicant has clearly omitted to state whether its
claim against the respondents is joint or otherwise.
Further there is
no evidence that the respondents agreed to be severally liable for
the whole of the debt.
[12] The result is
that judgment must be given against each of the respondents for its
particular share of the debt under the loan
agreement.
[13] The next
question is whether the applicant has proven the quantum of its
claim. The applicant submitted that it is entitled
to rely on the
certificate of balance signed by one of its managers as prima facie
proof of the amount owing to it by the respondents
and that in the
absence of sufficient proof in rebuttal, the evidence provided by
such a certificate becomes conclusive and/or
money taken to be
proved. The applicant further submitted that the evidence submitted
by the first respondent has failed to disturb
the certificate of
balance.
[14] The first
respondent, on the other hand, submitted that while it is true that a
certificate of balance provides prima facie
proof of the amount of
the indebtedness, which becomes conclusive if the debtor (the first
respondent) does not shift or discharge
the evidential burden created
by the certificate, in casu the applicant’s own evidence
materially contradicts the certificate.
The first respondent made
reference to, inter alia, the following contradictory evidence
adduced and documents produced by the
applicant in its founding
affidavit and thereafter:-
14.1 The
“outstanding account balance” is stated to be R3 168
860-89 being more than double the unpaid balance of R1
520 326-81
according to the applicant’s
own statements of
account as at 01 November 2007 (when last payment was allegedly
made).
14.2 The first
respondent further submitted that the applicant has included in its
statement of account legal costs in respect of
this very matter which
are not yet
due and payable. The
first respondent rejected the applicant’s proposal that the
amount for legal costs be simply deducted
from the amount due.
Interest is
calculated on the
capital inclusive of these legal costs. Therefore the inclusion of
the legal costs renders the applicant’s
interest calculation
wrong. I agree with
the respondent’s
submission in this regard.
[15] According to
the applicant the last payment was made on 01 November 2007 and I
have noted that the balance owing in this matter
as at that date was
R1 520 326-81. In terms of the applicant’s section 129 notice
dated 18 April 2013 the account balance
is R3 168 860-89. Clearly the
amount of R3 168 860-89 is more than double the initial amount of R1
520 326-81. This is in contravention
of
section 103(5)
of the
National Credit Act No. 34 of 2005
.
Section 103(5)
provides as
follows: “Despite any provision of the common law or a credit
agreement to the contrary, the amounts contemplated
in
section
101(1)(b)
to (g) that accrue during the time that a consumer is in
default under the credit agreement may not, in aggregate, exceed the
unpaid
balance of the principal debt under the credit agreement as at
the time that the default occurs.” The amounts contemplated
in
section 101(1)(b)
to (g) are the initiation fee, service fee,
interest, cost of any credit insurance, default administration
charges as well as collection
costs.
[16] Under the
circumstances the certificate of balance cannot be considered as
prima facie proof of the amount owing by the respondents
to the
applicant.
[17] I hereby find
that there is a dispute of fact regarding the quantum of the
applicant’s claim which cannot be resolved
on the papers before
me. For a just and expeditious decision, I am persuaded to consider
favourably the request of both parties
that in the event the court
finds that there is a dispute of fact regarding the quantum then the
issue be referred for oral evidence.
[18] I, therefore,
rule as follows:
1. The liability of
the respondent towards the applicant is joint.
2. The application
is postponed to a date to be arranged by the parties with the
Registrar of this court for the hearing of oral
evidence.
3. The issue to be
resolved by the hearing of oral evidence is the quantum of the
applicant’s claim owing by the first respondent.
4. Save in the case
of any persons who have already deposed to affidavits in these
proceedings, no party shall be entitled to call
any person as a
witness at the aforesaid hearing unless:
4.1. he or she has
served on the other party, at least 14 days before the date appointed
for the hearing, a statement by such person
wherein the evidence to
be given in chief by such person is set out; or
4.2. the court, at
the hearing, permits such person to be called despite the fact that
no such statement has been so served in respect
of such evidence.
5. Any party may
subpoena any person to give evidence at the aforesaid hearing,
whether such party has consented to furnish a statement
or not.
6. The fact that a
party has served a statement or has subpoenaed a witness, shall not
oblige such party to call the witness concerned
at the aforesaid
hearing.
7. Within 45 days of
the making of this order, each of the parties shall make discovery on
oath of all documents relating to the
issue referred to in 3 above,
which documents are or have at any time been in the possession or
under the control of such party.
8. Such discovery
shall be made in accordance with rule 35 of the Uniform Rules of
court and the provisions of that rule with regard
to inspection and
production of documents discovered shall be operative.
9. The costs will be
determined when the issue mentioned in 3 above is decided.
S S MPHAHLELE
JUDGE OF THE HIGH
COURT OF SOUTH AFRICA
GAUTENG LOCAL
DIVISION, JOHANNESBURG
Counsel for the
Applicant: Mr. D Van Niekerk
Instructed by:
Hammond Pole Majola Attorneys
Counsel for
Respondent: Mr. F J Bekker
Instructed by:
Bryan Wilken Attorneys
Date of hearing:
16 April 2014
Date of judgment:
28 July 2014