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[2011] ZAGPPHC 199
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First Rand Bank Ltd t/a FNB Home Loans v Makhoba (55443/10) [2011] ZAGPPHC 199 (14 October 2011)
NOT
REPORTABLE
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTH
GAUTENG HIGH COURT, PRETORIA)
Case
No: 55443/10
DATE:14/10/2011
In
the matter between:
FIRST
RAND BANK LIMITED
t/a
............................................................................
APPLICANT
FNB
HOME LOANS
And
MAKHOBA
ZIPHOZONKE
................................................................................
RESPONDENT
JUDGMENT
MAVUNDLA,
J.
[1]
This is an opposed application for summary judgment against the
respondent for:
1.1
payment in the amount of R1,355,684. 05
1.2
interest attherate 8.00 percent per annum, compounded daily and
capitalized monthly in terms of the Mortgage Bond, with effect
from
the 2nd of September 2010 to 9th September 2010 and at 7.50 percent
from 10th September 2010 to date of payment both dates
inclusive;
1.3
An order declaring the ERF 532 NOORDHANG EXTENSION 42 TOWNSHIP,
REGISTRATION DIVISION IQ, THE PROVINCE OF GAUTENG, MEASURING
511
(FIVE HUNDERED AND ELEVEN) SQUARE MERES AND HELD UNDER DEED OF
TRANSFER T 43932/2006 executable for the said sum.
1.4
Cost of suit on the scale as between attorney and client.
[2]
The applicant's claim against the respondent arises from moneys lent
and advanced by the applicant to the respondent, which
are secured by
a covering bond registered against the immovable property of the
respondent mentioned in paragraph 1 herein above.
The agreement was
entered into on or about 6 August 2009 and was attached to the
summons as annexure
"A".
The Mortgage Bond securing the debts was attached to the papers as
annexure "B".
[3]
The respondent, in opposing the application for summary judgment
filed an affidavit in which he takes a point in limine that:
(a)
whereas its claim is based on a loan & Mortgage Bond agreement
which is a liquid document, the applicant failed to attach
any such
Loan Agreement.
(b)
the applicant failed in his action to address the applicability of
the NCA or its compliance therewith.
(c)
the applicant's cause of action is fatally defective and the
application should be dismissed.
[4]
The respondent, in respect of the merits, contended that the
applicant was neither allowed to terminate his debt review in terms
of section 86(10) of the NCA nor was such termination valid because
the purported notice of termination was sent to 21 Nouvelle,
113
Bellairs Drive North Riding, 2169 which was not the chosen domicilium
citandi et executandi address 6
Andiamo,
Hyperion Street, Noordhang Extension 42 Randburg, Gauteng.
[5]
The respondent further contended that he applied for debt review on
or about 2 January 2008 in terms of s86 of the NCA at the
offices of
Ms Elizabeth Mokgata, a registered Debt Counsellor. His debt review
application was never referred to the magistrate's
court in terms of
s87 of NCA. He further contends that he was not aware that his debt
review application should have been referred
to the Magistrate's
court and his debt counsellor never informed him thereof. He further
contends that he is bona fide with his
debt review and will refer the
debt review to the Magistrate's Court in terms of s87.
[6]
The respondent further contended that in terms of s86(10) the
applicant should have sent a notice to him, the debt counsellor
and
the National Credit Regulator. The applicant failed to annex any such
notice as proof of delivery to the National Credit Regulator.
AD
POINT IN LIMINE [7] With regard to the first point taken, namely that
the applicant failed to attach the Loan Agreement and Bond,
which are
the liquid documents upon which the claim is founded, I need refer to
the matter of Caltex Oil (SA) Ltd v Crescent Express
(Pty) Ltd and
Others
1
where it was held that: "For there to be verification of a cause
of action within the meaning of Rule of Court 32 (2), there
must be
made to appear a complete cause of action. Rule of Court 32 (2)
contemplates that to the summons, in a case where summary
judgment
may be applied for, there need not be annexed a liquid document on
which the claim is founded, because in the Rule it
is provided that,
if the claim is founded on a liquid document a copy of that document
shall be annexed to the affidavit made in
support for the application
for summary judgment."
[8]
To the summons is attached annexure "A", which is the
relevant Mortgage Bond. Annexure "B" attached to the
summons is the Certificate of Balance reflecting the outstanding
balance and interest.
[9]
The affidavit in support of the summary judgment application was
deposed to by Ms Sanette Von Mohiman, who described herself
as the
Operations Manager Arrears-Legal of Home Loans of the applicant in
whose employ she is. She has stated, inter alia, that
she is familiar
with the books of account of the applicant and its financial affairs
particularly of the details of this action
and accordingly swears
positively to the facts of the matter, verify the cause of action
against the defendant in the amount claimed
in the summons. She has
also stated that: "I confirm that the amount claimed from the
Defendant, is the amount of R1.33 684.
05 (say One Million Three
Hundred and Fifty Five Thousand Six Hundred and Eighty Four Rand and
Five Cents). As proof of this amount,
I invite the attention to the
Plaintiff's Summons and more particularly ("Prayer 2 thereof),
the Certificate of outstanding
balance which is annexed thereto
marked Annexure "B"'\
[10]
Although annexure "B" was not attached to the affidavit in
support of the summary judgment application, however,
the fact that
it has been referred to in the said affidavit, is in my view
sufficient to meet the requirement Rule 32(2). There
is therefore no
substance in the point taken in this regard.
[11]
With regard to the point in limine that the applicant has not
addressed in its summons, whether it has complied with the provisions
of the NCA, and that therefore summary judgment should be refused for
this reason, I deem it appropriate to cite in detail what
Epstein AJ
said in the matter of Standard Bank of SA v Rockhill
2
:
"[16]
The remaining issue is whether the non-compliance by the plaintiff
with its obligation in terms of s 129 of the NCA affords
the
defendants a defence to the application for summary judgment,
entitling them to be granted leave to defend. In Standard Bank
of
South Africa Ltd v Van Vuuren 2009 (5) SA 557 (T) the court found
that a defendant in an application for summary judgement had
raised a
bona fide defence when it was established that there was no proper
compliance with s 129. The defendant in that case was
granted leave
to defend. However, the court did not deal with the provisions of
ss130 (3) and 130(4) of the NCA. The relevant portions
of these
sections read as follows: 130 Debt procedures in Court
(3)
Despite any provision of law or contract to the contrary, in any
proceedings commenced in a court in respect of a credit agreement
to
which this Act applies, the court may determine the matter if the
court is satisfied that—
(a)in
the case of proceedings to which section 127, 129 or 131 apply, the
procedures required by those sections have been complied
with; (b)-.
(4)
In any proceedings contemplated in this section, if the court
determines that—
(a)
...
(b)
the credit provider has not complied with the relevant provisions of
this Act, as contemplated in subsection 3(a)... the court
must—
(I)
adjourn the matter before it; and
(ii)
make an appropriate order setting out the steps the credit provider
must complete before the matter may be resumed..."
"[17]....
Whilst non-compliance with s 129(1)(a) is an impediment to commencing
any legal proceedings to enforce a credit
agreement, it does not
constitute a bona fide defence of the nature envisaged by rule
32(3)(b). Once it is established at trial
stage that the plaintiff
has not complied with s129(1)(a), the trial will be adjourned and an
order made setting out the steps
the plaintiff must complete before
the trial is resumed. The fact that s130(4)(b) envisages the
resumption of the proceedings following
the court having made an
appropriate order, illustrates that non-compliance with s129(1)(a)
does not constitute a bona fide defence
for summary judgment
purposes.
[18]
In the circumstances, I must respectfully disagree with the finding
in Standard Bank of South Africa Ltd v Van Vuuren 2009
(5) SA 557
(T), namely that a defendant who establishes non-compliance with
s129(1)(a) of the NCA has established a defence and
is entitled to
leave to defend. The court's hands are tied and it must act in
accordance with s130(4)(a)."
[12]
In the Standard Bank of South Africa Ltd v Van Vuuren (supra) the
Court held that s129 is mandatory. In Nedbank v Credit Regulator
3
(SCA) it was held that: "Section 129(b)(i) makes it clear that
the notice in terms of s 129(1 )(a) is a necessary 'step' before
legal proceedings may be commenced. It follows that by giving the
notice envisaged by s129(1)(a) the credit provider 'has proceeded
to
take steps contemplated in section 129 to enforce that agreement'.
[12]
The non-compliance with s129(1)(a) does not vitiate the legal
proceedings commenced by the credit provider, otherwise, the
legislator would not have included s130(4)(b); vide paragraph [11]
supra. I am in agreement with the reasoning and conclusion reached
in
the Standard Bank of SA v Rockhill (supra) that non-compliance with
s129(1) does not constitute a bona fide defence in the context
of
rule 32(3)(b).
[13]
The Court in Standard Bank of SA v Rockhill (supra) proceeded to
postpone sine die the summary judgment application and, inter
alia,
afforded the applicant an opportunity to serve a notice as
contemplated in s129 and 130. Section 130(4)(b) used the word
"must",
which is prescriptive. Consequently, I must follow suite and postpone
sine die the proceedings to allow the applicant
to serve the relevant
notice on the defendant.
[14]
I am further of the view that, it is not necessary to decide on the
defences raised by the respondent against the merits. I
am further of
the view that the costs occasioned by the adjournment of the matter
must be borne by the applicant.
[15]
In the result I make the following order:
1.
That the application for summary judgment is adjourned sine die;
2.
That the applicant is afforded an opportunity to provide a notice to
the respondents as envisaged in s129 and 130 of the NCA.
If such
notice is sent by registered mail to the respondent's last known
postal address or such address as furnished by the respondent,
it
shall be deemed to have been delivered to the respondent 14 days
after posting by the applicant.
3.
The applicant may set down the application for summary judgement on
notice to the respondents and their attorneys of record not
less than
10 (ten) days after the notice in terms of s129 has been delivered;
4.
Save for the direction herein given to the sending of the notice in
terms of s129,the respondents' rights in terms of the NCA
remain
unaffected;
5.
That the respondent is granted leave to supplement its opposing
affidavit.
6.
That the applicant is directed to pay the respondents' wasted costs
occasioned by the adjournment of the application for summary
judgment.
N.M.
MAVUNDLA
JUDGE
OF THE HIGH COURT
DATE
OF HEARING : 30/08/2011
DATE
OF JUDGMENT : 14/10/2011
APPLICANT'S
ATT : ADV B D STEVENS
APPLICANT'S
ADV : ADVJ H MOLLENTZE
RESPONDENT'S
ATT : CAWOOD ATT
RESPONDENT'S
ADV : ADV L K VAN DER MERWE
1
1
967
(])
SA
466
(D. & C.L. D.) at 466B-C, 469C-E.
2
2010
(5) SA 252 at 257H-258G.
3
2011
(3)SA581.