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[2015] ZAGPJHC 132
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ABSA Bank v Bobby & Keith Holdings (Pty) Ltd (01796/2015) [2015] ZAGPJHC 132 (23 June 2015)
REPUBLIC OF SOUTH
AFRICA
SOUTH GAUTENG HIGH
COURT
JOHANNESBURG
CASE NO: 01796/2015
DATE: 23 JUNE 2015
In the matter between:
ABSA BANK
LIMITED
..............................................................................................................
Plaintiff
And
BOBBY & KEITH HOLDINGS (PTY)
LTD
.........................................................................
Defendant
J U D G M E N T
FISHER AJ:
[1] This is an application for summary
judgment.
[2] The Plaintiff claims payment of the
sum of R343 917.50, being in respect of moneys lent and advanced by
the Plaintiff to the
Defendant and secured by a mortgage bond over
the Defendant’s immovable property. It claims furthermore that
the property
be declared executable for the amount owing.
[3] The Plaintiff pleads that, on 15
March 2001, the Plaintiff and the Defendant entered into a written
loan agreement under account
number [8…………...]
in terms of which a capital amount of R 500 000 was lent and advanced
to the Defendant.
[4] The Plaintiff pleads further that
the original loan agreement became lost at the Plaintiffs National
Securities and Bond Centre
and that after a diligent search it has
been unable to find the original or a copy of the loan agreement.
[5] The Plaintiff attaches to its
particulars of claim a copy of what it alleges to be the standard
form of its loan agreement together
with hard copies of documents,
which are alleged to set out information captured on the Plaintiff’s
computer system and which
relate to the loan agreement entered into
with the Defendant. The allegation is essentially that the standard
terms and the information
on the computer system (which allegedly
discloses all information which would have formed part of the loan
agreement, such as the
capital amount lent, the instalments payable,
the interest rate and the like) evidences the terms of the
contractual relationship
between the parties. The Plaintiff also
attaches the relevant mortgage bond to the particulars of claim. It
bears mention that,
in terms of the loan agreement pleaded, the terms
of the mortgage bond are to be read together with the terms of the
loan agreement
and the mortgage bond itself makes provision for an
acceleration of the indebtedness under the loan agreement in the
event of default.
The mortgage bond furthermore provides that, in
the event of any conflict with its provisions and the loan agreement,
the provisions
of the mortgage bond will prevail.
[6] The Plaintiff’s case is that
the Defendant has fallen into arrears under the loan agreement. The
Defendant is alleged
to have been 6 months in arrears as at the date
of issue of the summons, being 21 January 2015.
[7] The Defendant filed an affidavit in
opposition to the summary judgment. The following emerges therefrom:
1. it does not dispute that it entered
into a mortgage loan agreement with the Plaintiff and that the
mortgage bond was registered
over the property pursuant to the
entering into of the loan agreement;
2. it does not dispute that the capital
amount was advanced under the loan agreement;
3. it admits that that the Plaintiff
has lost the loan agreement;
4. it does not dispute that there are
arrears owing under the loan agreement (although it makes a vague
allegation that the arrears
owing “are less”);
5. it contends that the loan agreement
concluded is “unique” and differs from the standard loan
agreement annexed;
6. all that is stated in relation to
the alleged unique nature of the agreement is the following:
“In this regard, I wish to bring
the Court’s attention that the Applicant does not state in its
documents that the agreement
that it concluded with the Respondent
incorporates a flexi reserve agreement.”
7. it alleges that it is prejudiced by
the Plaintiff’s inability to produce the loan agreement
concluded.
[8] The Defendant appears to contend
that the fact that the loan agreement is not available means, of
itself, that the Plaintiff
must fail. In this it is not correct.
There is no substantive rule that a party to a written contract is
precluded from enforcing
the contract merely because it has been lost
or destroyed. (See ABSA Bank Limited v Zalvest 20 (Pty) Ltd
2014 (4)
SA 119
(WCC) at paras [2] to [9]).
[9] Where a loan agreement has been
lost and cannot be found despite a diligent search, the party who
relies on the contract can
adduce secondary evidence of its
conclusion and terms. Such party is not unsuited simply because of
its inability to annex the
agreement to its particulars’ of
claim.
[10] In the matter of ABSA Bank Limited
v Jenzen; ABSA Bank Limited v Grobbelaar (Gauteng Local Division case
numbers 2014/877 and
2014/7728) Sutherland J dealt with two summary
judgment applications where the loan agreements were lost in each
instance. (The
applications were similar to one another and are
similar to this application). It was found in both cases that
summary judgment
should be refused because of specific defences
raised in relation to each. However, the learned Judge went on to
hold as follows:
“In my view, it would be
inappropriate to pre-judge the merits of the defendant’s
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 fundamental 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 demonstrated not be bona fide, the remedy of summary
judgment remains available”.
(Emphasis added)
[11] Accordingly, the mere fact that
the agreement is lost does not preclude the Plaintiff from seeking
and obtaining summary judgment.
It is the bona fides of the defences
raised that must be tested in all instances.
[12] In the matter of Oos-Randse
Bantoesake Administrasie v Santam (2)
1978 (1) SA 164
at 171H,
Coleman J had the following to say in relation to the obligations of
a defendant in a summary judgment application in
demonstrating that
he has a bona fide defence :
“What is required of him is not a
great deal. But he must lay enough before the Court to persuade it
that he has the genuine
desire and intention of adducing, at the
trial, evidence of facts which, if proved, would constitute a valid
defence. In order
to achieve that degree of persuasiveness the
defendant must do more than assert his intention to establish his
defence by evidence
at the trial. He must place on affidavit enough
of his evidence to convince the Court that the necessary testimony is
available
to him, and that, if it is accepted, it will constitute a
defence. That applies even if the onus of negativing the defence
will
ultimately rest upon the plaintiff as, for example, in a case
where the plaintiff is claiming enforcement of a contract, and the
defence is a denial that such a contract was concluded.”
[13] The case made out in the opposing
affidavit amounts to no more than a complaint about the inability to
annex a copy of the
loan agreement (which, it is common cause between
the parties, is lost) and that the contract concluded between the
parties differs
from the standard contract annexed on the basis that
it incorporates “a flexi reserve agreement” which was not
disclosed.
[14] I have dealt with the first
complaint above. In relation to the second, reference to the
standard documents annexed reveals
the existence of provisions dubbed
“flexi reserve terms and conditions” which form part of
the loan agreement. Accordingly
it is not correct that these
provisions have not been disclosed by the Plaintiff. These
provisions are essentially in the nature
of what is commonly termed
an “access bond”. They allow a borrower during the
course of the loan agreement the option
to access further amounts
during the life of the loan agreement by agreement between the
parties. The Defendant does not state
that this option was ever
taken up nor what impact this would have had on the agreement between
the parties. (It must be said
that would presumably make the
position of the Defendant in relation to its indebtedness more
onerous if it had made further withdrawals
under this option.) In
any event, the mere reference to this flexi reserve agreement does
not suffice to make out a defence.
[15] In relation to the vague assertion
that the arrears “are less” – the fact that no
detail whatsoever is given
means that the Defendant again does not
meet the requirement of bona fides. The Defendant, had it made
payments which were not
taken account of, should have been in a
position to set out details relating to such payments or at least
explain why it was unable
to do this.
[16] To my mind the Defendant has not
gone any way to establishing that there are defences available to it
at trial.
[17] One final point requires to be
dealt with: the Defendant makes reference to the fact that an earlier
court process in relation
to the indebtedness was issued in the North
Gauteng High Court, but that this action was withdrawn. It appears
that, in that matter,
there was a postponement granted to allow the
Plaintiff to supplement the papers with a copy of the loan agreement.
The point
is made by the Defendant that, instead of complying with
the court order, the Plaintiff withdrew the matter. This assertion,
apart
from the fact that it does not constitute a defence in the
matter, misconstrues the order of the North Gauteng High Court. Such
order does not enjoin the Plaintiff to retrieve the loan agreement
from the quarters mentioned therein, it merely affords an opportunity
for supplementing the papers.
[18] The Defendant has not established
any basis as to why execution against the mortgaged property should
not follow in the ordinary
course.
[19] The agreement pleaded makes
provision for costs to be awarded on the scale as between attorney
and client.
[20] In all the circumstances I grant
summary judgment as follows:
1. Payment of the amount of R343
917.50.
2. Interest on the aforesaid amount at
the rate of 9.25% per annum calculated and capitalised monthly in
arrears, from 6 January
2015 to date of payment.
3. An order declaring the following
property specially executable:
The Remaining Extent of Portion 1……
(a portion of Portion 1) of the Farm [K…….] [5…..],
Registration
Division IQ, province of Gauteng, measuring 2,0852
hectares held under deed of transfer [T6……….]
4. An order authorising the Registrar
of this Court to issue a writ of attachment in respect of the
property.
5. Costs on the scale as between
attorney and client.
DC FISHER
Acting Judge of the High Court
APPEARANCES:
For the Plaintiff: Adv JA Swanepoel,
Instructed by Smit Sewgoolam Inc
(Tel: 011 646 0006; Ref:
JE/KH/LS/MAT 19654)
For the Defendant: Adv NS Petla,
Instructed by Motalane Attorneys
(Tel: 011 655 7108; Ref: Mr L
Motalane: B7KHOLD/04/15)
DATE OF HEARING : 27 May 2015
DATE OF JUDGMENT : 23 June 2015