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[2018] ZAGPJHC 82
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Firstrand Bank Ltd t/a RMB Private bank v Du Plessis and Another (7348/17) [2018] ZAGPJHC 82 (16 February 2018)
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IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, JOHANNESBURG
Case
number: 7348/17
Not
reportable
Not
of interest to other judges
Revised.
16/2/2018
In
the matter between:
FIRSTRAND
BANK LTD t/a RMB PRIVATE
BANK
Applicant
Registration
Number 1929/001225/06
and
JACOBUS
CHRISTOFEL DU
PLESSIS
First
Respondent
Identity
Number […]
LINET
DU
PLESSIS
Second
Respondent
Identity
Number […]
JUDGMENT
Molahlehi,
J
Introduction
[1]
The
applicant in this matter seeks an order that the respondents should
pay it the sum of R3 806 447.53 including interest thereon.
The claim
arises from the loan which the applicant had made to the first
respondent, and for which the second respondent stood
surety thereof.
[2]
The
applicant through the agreement provided a loan facility to the
respondent which was made during October 2000. The agreement
was
amended or varied four times during its operation.
[3]
The
original agreement made provision for the following:
(a) The facility was
approved in the sum of R800,000
(b) The facility was a
term– type facility
(c) The first respondent
was obliged to repay the debit balance on 240equal monthly
instalments.
(d) The instalment was to
be made on the first day of each month. The respondent was required
to put forth a collateral, including,
inter alia, a bond covering the
property in the sum of R1 million as security.
(e) The applicant was
entitled to relax some of the provisions of the original agreement or
granted the first respondent indulgence
without affecting the
validity of all the other provisions of the original agreement.
(g) Relaxation or
indulgence granted by the applicant to the firstrespondent would not
be deemed to be a waiver of any of the applicant's
rights in terms of
the original agreement, nor any such relaxation or indulgence be
deemed novation of any of the terms and conditions
thereof.
[4]
The
agreement between the parties further provided that in the event of
any default by the first respondent, the applicant would
be entitled
to withdraw the facility and claim immediately payment of all
outstanding balance or terminate the facility without
affecting any
of its other rights.
[5]
It has not
been disputed that the first respondent failed to pay the instalments
in for the period, June 2016 to November 2016 in
breach of the
agreement. It was for this reason that the applicant decided to
terminate the agreement.
[6]
On 7
December 2000 the first respondent executed a covering mortgage bond
over the property in favour of the applicant, which was
registered in
the Deeds Office thereby providing security for the first
respondent's indebtedness to the applicant in the sum of
R1 million
and an additional sum of R200,000.
[7]
The second
covering mortgage bond over the property in favour of the applicant
was made on 14 July 2005 to provide security for
the applicant in the
sum of R200 000.00 and additional amount of R40 000,00.
[8]
The third
bond executed in favour of the applicant was in the sum of
R300 000.00 with the additional sum of R60 000,00.
[9]
The fourth
covering mortgage bond was executed on 4 January 2008 in the sum of
R3 000 000.00 with the additional sum of
R600 000.00.
Factors
to consider regarding the executability of the property.
[10]
The
following factors are to be taken into account when considering the
executability of property:
(a)
The amount
of the indebtedness by the respondent – i.e is the amount being
very large.
(b)
The sale of
the property in June 2003 was R318,000 and the property is now valued
at R2,600,000.
The
respondent's defence
[11]
The
respondents raised the following points in defence:
(a)
The
authority of the deponents to attest to the founding affidavit.
(b)
That
his constitutional right would be infringed if the property was to be
declared executable as the property is utilised as a
primary
residence.
(c)
Failure
to comply with the provisions of section 129 of the National Credit
Act.
[12]
The
respondent has further requested that, should the court find that the
property is executable it should stay such execution for
a period of
five months.
[13]
The
second respondent has not filed an answering affidavit, which in
essence means that the application in as far as she is concerned
is
unopposed. Her liability is based purely on suretyship.
[14]
In
my view all the defences raised by the first respondent are
unsustainable for the following reasons: The issue of whether or
not
a deponents to an affidavit in motion proceedings need authorization
was answered in games Ganes and Another vs Telkom Namibia,
[1]
where the court held:
"The
deponent to an affidavit in motion proceedings need not be authorized
by the party concerned to depose to the affidavit.
It is the
institution of the proceedings and the prosecution thereof that must
be authorized."
[15]
The
respondent has made a bold allegation that granting the relief sought
by the applicant will infringe on his constitutional right,
in that
he would be homeless. This allegation has not been substantiated in
the sense that he has not placed before this court
any evidence to
assist it in exercising its discretion.
[16]
As
stated above, the respondent has requested the delay in granting the
relief requested by the applicant. The request was
based on the
contention that the respondent was expecting some substantial funds
to come his way. This request was made in October
2017, some three
and half months ago. There has been no progress to date in that
regard.
[17]
The
respondent has made a further request for the delay in granting the
order. He has however not placed anything of substance before
this
court to sustain the request. He simply stated that there are
investors who have promised some funds to him. There seem to
be no
guarantee about the promise except for saying that they have promised
to come forth in the next few weeks. There is no certainty
as to
whether they will keep to their promise.
[18]
I
need to pause and indicate that although the respondent's attorneys
are still on the record, in that they have not withdrawn their
instructions they, did not appear on the day of the hearing.
The respondent informed me that the reason for the non-appearance
was
due to his lack of funds to pay them.
[19]
I
inquired from the respondent as to whether he had movable property of
any significance that could settle the debt. He informed
me that all
what he has is a car and a computer which is used for his survival.
In light of the above I am persuaded that the applicant's
application
stands to succeed.
Order
[20]
In
the circumstances the following order is made:
The
respondents are to pay the applicant the one paying the other to be
absolved the sum of R3 806 447 53.
Interest
on the above amount at the rate of 9.75 per annum minus 0.35% per
annum calculated daily, compounded monthly in arrears
from 1 July
2016 to date of payment.
It
is hereby declared that Portion 2 of Holding Austin Agricultural
Holdings, Registration Division, JR, Gauteng Province, measuring
8565 (eight thousand five hundred and sixty five) square meters in
extent and held on the Deed of Transfer number T103855/2003
is
especially executable.
Cost
of suit on the attorney and own client scale.
____________________________
E
Molahlehi
Judge
of the High Court,
Johannesburg
Representation:
Counsel
for the Applicant: Adv. R Scholtz
Instructed
by: Jason Michael Smith Inc. Attorneys
Counsel
for the Respondent: In person
Heard
on: 5 February 2018
Delivered
on: 16 February 2018.
[1]
2004 (3) SA 615
(SCA).