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[2016] ZAGPJHC 177
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Nedbank Limited v Schoeman N.O and Another (41357/2014) [2016] ZAGPJHC 177 (24 June 2016)
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REPUBLIC
OF SOUTH AFRICA
IN THE
HIGH COURT OF SOUTH AFRICA,
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NO: 41357/2014
DATE:
24 JUNE 2016
In the matter
between:
NEDBANK
LIMITED
..............................................................................................................
Applicant
And
CHRISTOFFEL ANDRIES
SCHOEMAN N.O.
(IN HIS CAPACITY AS
TRUSTEE OF THE
VITRARINA
TRUST, IT NO
1872/1999)
...................................................................
First
Respondent
CHRISTOFFEL
ANDRIES
SCHOEMAN
.............................................................
Second
Respondent
J U D G M E N T
MASHILE, J
:
[1]
The Applicant and the First Respondent are a mortgagee and mortgagor
respectively. The parties concluded three home loan agreements,
which
the Applicant subsequently secured by the registration of three
distinct mortgage bonds over the immovable property of the
First
Respondent described as:
[Erf 1…
R…..] Extension [1….] Township, Registration Division
IQ., Province of Gauteng, situate at [1…..]
[T….] Road,
[R…..] Extension [1…] (“
the
Property
”).
[2]
The Second Respondent is a surety having bound himself as such and
co-principal debtor jointly and severally
in
solidum
for the due
payment by the First Respondent to the Applicant of any amounts which
the First Respondent may be liable to pay to
the Applicant under the
various mortgage bonds.
[3]
The First Respondent has failed to observe its obligations arising in
terms of the loan agreements as read with the mortgage
bonds by not
adhering to payment of its monthly instalments. Its failure
provoked the Applicant to launch these proceedings
against it and the
Second Respondent. The Applicant is now suing the Respondents
for the following:
3.1 Payment of the
amount of R1 730 868.71;
3.2 Payment of interest on the
aforesaid amount at the rate of 7.40% per annum, calculated and
capitalised monthly in advance, calculated
from 31 August 2014 to
date of payment;
3.3 An order declaring the property
specially executable for the aforesaid sums plus costs;
3.4
An order authorising the Registrar of this Honourable Court to issue
a warrant of execution for the attachment of the Property;
and
3.5
Costs of suit on the scale as between attorney and client.
[4]
The Respondents have raised a number of preliminary points. Of
all of them, lack of
locus standi
of the Applicant to launch these proceedings brought about by the
cession of the debt to Greenhouse Funding (Pty) Ltd (“
Greenhouse
”)
drew the attention of this Court. It is this Court’s
attitude to deal with this point first as it could be
dispositive of
the whole matter.
[5]
The Applicant has admitted that Greenhouse is one of the companies to
which it does intermittently cede debts for commercial
reasons.
However, Counsel for the Applicant assured this Court on the day of
the hearing that the debt in the current matter
had not been ceded to
Greenhouse as is the case with the other debts. Reference to
Greenhouse in the certificate of balance
is simply a mistake of its
employees who possibly inadvertently mingled the files resulting in
this incorrect labelling.
[6]
The founding affidavit is deposed to by Ms Pheladi Moagi (“
Moagi
”)
and the mistake in the founding affidavit to which Counsel referred
was made by her. Flagrant, as the mistake is,
the certificate
of balance bears Greenhouse as the current mortgagee. If that
is correct, it certainly means that it, and
not the Applicant, has
the
locus standi
to bring these proceedings against the Respondents.
[7]
In an attempt to resolve the mistake on the certificate of balance,
which is an annexure to the founding affidavit, The Applicant
simply
prepared another certificate of balance wherein it cites itself as
the mortgagee this time around. The corrected certificate
of
balance is annexed to the replying affidavit. To make matters
worse, the deponent to the replying affidavit is Ms Sindisiwe
Fortunate Sizakele Mhlongo (“
Mhlongo
”).
Mhlongo confirms that the certificate of balance annexed to the
founding affidavit is incorrect.
[8]
It is trite that Mhlongo cannot in these circumstances change the
evidence of Moagi. The latter is the only one who can
alter her
own evidence and possibly shed some light on how it came about that
the mistake occurred. The point of Counsel
for the Respondents
is accordingly well-founded. No one party can alter the
evidence of another. The party who made
the mistake ought to
explain the circumstances and manner in which it happened.
Short of that the matter must be dismissed.
[9]
As indicated earlier, a finding that the deponent to the replying
affidavit cannot correct a mistake in the founding affidavit
to which
she was not a deponent is fatal to the Applicant’s case.
That being the case, I find no need to traverse any
of the other
defences raised by the Respondents as this alone is dispositive of
the whole case.
[10] The application fails and I make the following order:
10.1
The application is dismissed with costs.
B
A MASHILE
JUDGE
OF THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
COUNSEL
FOR APPLICANT ADV D VAN NIEKERK
INSTRUCTED
BY HAMMOND POLE MAJOLA INC
COUNSEL
FOR RESPONDENTS ADV G M ANDERSON
INSTRUCTED
BY ANDERSON-KRIEL ATTORNEYS
DATE
OF HEARING 9 MAY 2016
DATE
OF JUDGMENT 24 JUNE 2016