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[2015] ZAGPJHC 59
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Absa Bank Ltd v ERF 5..... Extension 1 CC and Others (2014/24489) [2015] ZAGPJHC 59 (9 March 2015)
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REPUBLIC OF SOUTH
AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
GAUTENG LOCAL DIVISION,
JOHANNESBURG
CASE NO: 2014/24489
DATE: 09 MARCH 2015
In the matter between:
ABSA BANK
LTD
........................................................................................................................
Plaintiff
And
ERF 5…. S……..
EXTENSION 1
CC
...........................................................................
First
Defendant
PRINSLOO
VAUGHAN
.............................................................................................
Second
Defendant
PRINSLOO SIMONE
NOCOLETTE
........................................................................
Third
Defendant
J U D G M E N T
MAKUME, J:
[1] In this matter the plaintiff
applies for summary judgment and seeks the following orders against
the first, second and third
defendants namely:
1.1 Payment of the sum of R624 217,18.
1.2 That the first defendant’s
immovable property described as certain Erf 5….. S……
Extension 1, Township
Registration Division IQ The Province of
Gauteng measuring 832 square metres held under Deed of Transfer No
T………
be declared specially executable (the
property).
1.3 Costs on the attorney and client
scale.
[2] The amount claimed was lent and
advanced to the first defendant and secured by a mortgage bond over
the first defendant’s
property. It is common cause that on 5
October 2009 and at Randburg the second and third defendants bound
themselves as sureties
and co-principal debtors with the first
defendant.
[3] The plaintiff’s case is that
the first defendant failed to effect payment of the loan agreement
instalments as and when
same became payable and thus breached the
loan agreement necessitating the plaintiff to commence this action.
[4] The application for summary
judgment is accompanied by an affidavit sworn to by one Sabashnee
Naidoo who says that he is a manager
in the Home Loans Recoveries
Secured Collections Department of the plaintiff and has direct
control over the plaintiff’s
files, computer records and
computer records pertaining to the loan agreement between the
plaintiff and the first defendant in
respect of the property.
[5] Mr Naidoo says further that he
swears positively to the facts set out in the plaintiff’s
summons and confirms that the
first defendant is indebted to the
plaintiff in the sum of R624 217,18 and that the defendants have no
bona fide defence.
[6] To resist a summary judgment a
defendant is amongst others required to set out in an affidavit that
he has a bona fide defence.
In the matter of Oosrandse Bantoesake
Administrasieraad v Santam Versekeringmaatskappy
1978 (1) SA 164
(W)
at 171H it was stated that not a great deal is required of a
defendant but that he must lay enough before the court to persuade
it
that it has a genuine desire and intention of adducing at the trial
evidence of facts which if true would constitute a valid
defence. In
order to achieve that degree of persuasiveness the defendant must do
more than assert an intention to establish a
defence by evidence at
the trial. The defendant must place on affidavit enough of his
evidence to convince the court that the
necessary testimony is
available to him and if acceptable it will constitute a defence.
[7] The affidavit filed by the third
defendant on behalf of all three defendants is voluminous and deals
with all sorts of irrelevant
issues. The defendant’s heads of
argument are no different. It is not denied that a loan agreement was
entered into neither
is it placed in issue that the defendants
defaulted on the agreed monthly payments and thus breached the
agreement.
[8] It is common knowledge that the
original loan agreement was not attached to the summons nor to the
application for summary judgment
as it has been destroyed in a fire.
The defendant has spent pages and pages in his answering affidavit on
this aspect and concludes
that the fact that the original loan
agreement is not available disentitles the plaintiff to obtain
summary judgment against the
defendant.
[9] The defendant in support of this
argument refers to a decision of this Court by Sutherland J in the
matter of Absa Bank Ltd
v Grobbelaar Case No 2014/877. The defendant
quotes paragraphs [17], [18] and part of paragraph [19] and argues
that summary judgment
should not be granted. It is clear that the
defendant decided to quote only those paragraphs which when read
without the rest
of that judgment would appear to support his
argument. To illustrate this I propose to quote paragraph [19] of
that judgment in
full it reads as follows:
“[19] In my view it would be
inappropriate to pre-judge the merits of the defendants’
allegations and the plaintiff
should extricate itself from its
regrettable predicament on trial not by way of summary judgment. This
finding should not be construed
to mean that I take the view that
merely because the foundational document is unattached to a claim
whether by summons or by application
that summary judgment is not
feasible. The decision in each case will be determined by the import
of the allegations made by a
defendant to question the version of the
plaintiff about the terms of the agreement alleged by the plaintiff
where such challenges
are susceptible to rebuttal on the papers or
are demonstrated not to be bona fide the remedy of summary judgment
remains available.”
[10] It is the underlined portions of
paragraph [19] of the judgment by Sutherland J that the defendant
decided to leave out. It
is clear that defendant wants to read into
that judgment as though failure to attach the agreement is fatal when
in fact Sutherland
J says otherwise.
[11] Sutherland J quotes at length from
a judgment by Rogers J in the matter of Absa Bank Ltd v Zalvest
Twenty (Pty) Ltd and Another
2014 (2) SA 119
WCC. In that judgment
Rogers J at paragraph
[9] says the following:
“The Rules of Court exist in
order to ensure fair play and good order in the conduct of
litigation. The rules do not lay down
the substantive legal
requirements of a cause of action nor in general are they concerned
with the substantive law of evidence.
There is no rule of substantive
law to the effect that a party to a written agreement is precluded
from enforcing it merely because
the contract has been destroyed or
lost.”
[12] The plaintiff has attached a copy
of the mortgage bond which is detailed and refers to the property. In
the particulars of
claim the terms of the mortgage loan are
comprehensive pleaded and I am accordingly satisfied that the absence
of a signed loan
agreement does not make the plaintiff’s case
defective.
[13] As I have indicated the defendants
in their answering affidavit do not dispute that the money was lent
and advanced to the
first defendant close corporation and that second
and third defendants signed as sureties in respect of the loan
agreement.
[14] The opposing affidavit is full of
unfounded and baseless issues aimed at clouding the fact that the
loan amount is now due
and is payable by all three defendants by
virtue of their breach of contract. The defendants do not say in
which manner they disagree
with the terms of the loan as read with
the online computer records. The fact that secondary evidence had
been relied upon by the
plaintiff does not preclude the plaintiff
from enforcing the mortgage loan agreement simply because it had been
destroyed. The
matter of Absa Bank v Zalvest (supra) is authority on
this aspect.
[15] In this matter the summons
includes a notice to defendants about their section 26 constitutional
rights. The defendants have
placed nothing before this Court as to
why execution against the property should not be allowed.
[16] There is nothing in the defendants
resisting affidavit which makes out a bona fide defence to the
plaintiff’s claim and
accordingly and in my view the
plaintiff’s application for summary judgment is granted and the
following order is made:
16.1 The first, second and third
defendants are ordered to pay plaintiff the sum of R624 217,18.
16.2 It is further ordered that E……
5…… S…… Extension 1 Registration Division
IQ The Province
of Gauteng measuring 832 square metres held under
Deed of Transfer No T……………. is
declared specifically
executable.
16.3 The Registrar is authorised to
issue a writ of execution in respect of the property referred to in
16.2 above.
16.4 Costs on attorney and client
scale.
DATED AT JOHANNESBURG ON THIS 9TH
DAY OF MARCH 2015.
M A MAKUME
JUDGE OF THE HIGH COURT OF SOUTH
AFRICA
GAUTENG LOCAL DIVISION, JOHANNESBURG
COUNSEL FOR PLAINTIFF J A SWANEPOEL
INSTRUCTED BY SMIT SEWGOOLAM INC
12 Avonwold Road
Cnr Jan Smuts Avenue
Saxonwold
Tel: (011) 646 0006
Ref: JE/KH/MAT18120
COUNSEL FOR DEFENDANTS ADV GERHARD
SWANEPOEL
INSTRUCTED BY PEARSON ATTORNEYS
4th Floor, Carlton Centre Building
150 Commissioner Street
Johannesburg
Tel: (011) 794 5812
Ref: A PEARSON/sg/MS0372