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[2017] ZAECPEHC 29
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Potgieter v Absa Bank Limited (2344/2013) [2017] ZAECPEHC 29 (11 May 2017)
IN
THE HIGH COURT OF SOUTH AFRICA
EASTERN
CAPE DIVISION, PORT ELIZABETH
Case
No.: 2344/2013
Date Heard:
31 March 2017
Date Delivered: 11 May
2017
In
the matter between:
ADELLE
YVETTE POTGIETER
Applicant/Defendant
and
ABSA
BANK LIMITED
Respondent/Plaintiff
JUDGMENT
(APPLICATION
FOR LEAVE TO APPEAL)
EKSTEEN
J:
[1]
The
applicant seeks leave to appeal against the judgment which I prepared
and which was delivered on 31 January 2017. The
applicant was
the defendant in the action and the respondent the plaintiff. I
shall refer to the parties herein as applicant
and respondent
respectively. The test to be applied at this stage in the
proceedings is whether there is a reasonable prospect
that another
court would come to a different conclusion to that which I arrived
at.
[2]
The first
three grounds of appeal relate not to the merits of the judgment, but
to the fairness of the procedure. They have
not been addressed
in the judgment and I shall accordingly deal in greater detail with
these grounds. They record as follows:
“
1.
The Court has erred and misdirected itself in not assisting the
Applicant to obtain
in
pauperis
assistance at the
onset of trial. When liabilities exceed assets a person is
bankrupt and in the light thereof the Applicant
qualifies for
in
pauperis
assistance.
2.
The Applicant was severely prejudiced during trial not having legal
representation
and does neither know the Court Rules nor the Rules of
Evidence.
3.
The Applicant was denied justice by lacking the necessary legal
representation.”
(
Sic)
[3]
A few
preliminary remarks are appropriate. It is recorded at the outset
that at no stage during the proceedings did the applicant
refer to an
application for assistance
in
forma pauperis
nor was it ever alleged in the proceedings that the applicant’s
liabilities exceed her assets. In the event that such
an
averment had been made at the onset of the trial the respondent may
well have chosen to proceed with sequestration proceedings
rather
than to be embroiled in trial proceedings. At the onset of
trial, and, subject to what is set out below, at all times
during the
trial the applicant had an attorney of record duly mandated to take
care of her interests.
[4]
It is, of
course, undoubtedly so that any litigant who is compelled to litigate
in person against an opponent who is legally represented
will
inevitably be at a disadvantage. In an ideal world all
litigants should enjoy equal representation. Sadly that
it not
always possible. It does not follow, however, that a litigant
who is compelled by circumstances beyond his or her
control to
litigate in person is thereby denied justice. In the present
instance, as will appear below, the applicant did
have an attorney of
record and later took a conscious decision to proceed without legal
representation at the hearing.
[5]
I turn to
consider first representation
in
forma pauperis.
Pauper
proceedings provide for assistance only to the most severely
impoverished persons in our society. Applications for
leave to
litigate as a pauper are governed by the provisions of rule 40 of the
Uniform Rules of Court. Rule 40(1)(a) requires
of a person
seeking to institute proceedings or to defend proceedings
in
forma pauperis
to apply to the registrar at the commencement of the process.
In lodging such an application an applicant is required to
satisfy
the registrar that, excepting household goods, wearing apparel and
tools of trade, he/she is not possessed of property
to the amount of
R10 000 and will not be able within a reasonable time to provide
such a sum from his earnings (see rule 40(2)(a)
as read with rule
40(1)(a)). I have perused the file in this matter which
contains no reference to any application made to
the registrar at the
commencement of the process, nor at the onset of the trial.
[6]
I am not
persuaded that the interpretation which the applicant ascribes to the
rule in the first ground of appeal is correct.
(Compare
Van
Zyl and Another v Commercial Union Insurance Co. of SA Ltd
1971 (3) SA 480
(E) at 482B-C.) It is, however, not necessary
for me to decide the issue herein. For purposes of the present
application
I shall accept, without deciding same, that the test
envisaged in rule 40 is met by an averment of factual insolvency.
The
present litigation relates to a debt incurred by way of loan and
secured by a mortgage bond over immovable property. The
applicant is the registered owner of the immovable property. A
bond in the amount of R490 000 to secure the loan was
registered
over the smallholding which was purchased for an amount of R895 000.
The applicant was accordingly,
prima
facie,
and in the absence of evidence to the contrary, possessed of equity
in the property in an amount of more than R400 000.
The
applicant was therefore clearly possessed of far greater assets than
that required in rule 40 at the commencement of the process.
For this reason the applicant did not remotely qualify to litigate as
a pauper and an application to litigate
in
forma pauperis
could not have succeeded at the commencement of proceedings.
The applicant stopped all payments on the bond in 2013.
At the
onset of the trial the outstanding debt on the loan had increased to
R770 057 which,
prima
facie,
still left the applicant possessed of equity in the property in an
amount of more than R100 000. Accordingly she did not
qualify
for assistance
in
forma pauperis
when the trial commenced.
[7]
It has,
however, been held that where the financial position of a litigant
deteriorates during the course of litigation an application
may be
brought to continue litigation
in
forma pauperis
.
Rule 40 does not provide the procedure to be followed in such an
event and a procedure has accordingly been laid down in
the Eastern
Cape Division. Where an applicant seeks leave during the course
of litigation to continue partly heard proceedings
in
forma pauperis
the applicant should apply to the registrar, in accordance with the
provisions of rule 40. In such circumstances, however,
the
affidavit which is to be delivered on behalf of the applicant must
not only set out the circumstances required in rule 40(2)(a)
but must
further set out the alteration in circumstances that now renders it
necessary to seek leave to pursue the action or defence
in
forma pauperis
.
No such affidavit was contained in the file at the conclusion of the
trial. Such a litigant must, at the same time, give
notice of
the application to the opposite party and supply the opposing party
with copies of the affidavit, statement and certificate
to which rule
40 refers and require notification by the opposing party in writing
to the registrar within fourteen days whether
he/she consents or
objects to the application. In the event that that opposing party
objects the applicant must apply formally
to court for leave to
continue
in
forma pauperis
after giving notice to the other side. (See
Commercial
Union Assurance Company of SA Limited v Van Zyl
and
Another
1971 (1) SA 100
(E).) No such application was ever made;
the respondent’s counsel did not at any stage indicate receipt
of such
an application; no advocate or attorney, save as set
out later herein, has given notice of an appointment to act
in
forma pauperis
nor has the registrar given any indication of such an appointment or
approach. In fact
ex
facie
the record, the applicant was at all times represented by an attorney
of record of her own choice.
[8]
In respect
of the engagement of counsel regard should be had to the factual
history of the trial which commenced on 29 July 2015.
At the
trial the respondent tendered its evidence and closed its case.
At that stage, the applicant sought a postponement
to obtain counsel
to present her case in the trial. I shall revert to this matter
later. Suffice it at this stage to
record that the postponement
was granted for this purpose. The trial was re-enrolled for 7
November 2016. She again
appeared in person and she again
requested a postponement in order to secure the services of counsel.
The respondent, as
it was entitled to do, insisted that the
application for postponement be made on oath. For this purpose
the matter was adjourned
to the following morning. An affidavit
was prepared and filed together with a notice of filing, again
in the name of
her attorney in Durban. On 8 November, however,
the applicant announced that she did not wish to proceed with her
application
for a postponement. I shall revert to these events
too later herein. For present purposes it is necessary only to
record
that the application for postponement never served before the
court and the content of the supporting affidavits were not placed
before court, nor referred to, nor brought to the attention of the
court.
[9]
At the
application for leave to appeal Mr
Beyleveld
referred
me to the affidavit delivered for purposes of the said application.
In her affidavit in the intended application,
which does not form
part of the record, it now transpires that she alleged:
“
I
was assisted by the Registrar of the Court on Thursday to access
legal assistance. I believe I do qualify for in pauperis
aid as
worth is calculated as assets minus liabilities and thus at present I
cannot afford to pay for legal assistance and qualify
for legal aid.
Coming on board now means legal representative has not had a chance
to familiarise themselves with the case.
It would disadvantage
me to proceed without Counsel.” (
Sic)
This
is the only reference to proceeding
in
forma pauperis,
and
as set out earlier it was never raised with the court.
[10]
At the
application for leave to appeal, after the conclusion of the trial,
the applicant indicated a desire to make application
for
in
forma pauperis
representation
and filed an application for postponement of this application.
For this purpose the matter stood down to enable
her to approach the
registrar. The registrar acceded to her request and the
application for leave to appeal was accordingly
postponed. In
due course counsel appointed to attend to the matter filed a notice
recording that he had perused the record
and was unable to certify
probabilis
causa
.
The application for representation accordingly failed.
[11]
I turn to
the second and third grounds of appeal recorded earlier. I have
alluded in my judgment in the trial and earlier
herein to the fact
that the applicant was at all times assisted by an attorney, one
Brent Pienaar, of M B Pedersen and Associates
in Durban as her
attorney of record. Prior to the commencement of trial his
local correspondent withdrew. It has been
placed on record that
a written agreement was entered into between the parties that all
pleadings and documents would thereafter
be delivered to Attorney
Pienaar in Durban. This was duly done and, subject to what is
set out below, he remained on record
throughout. On the day
preceding the commencement of the trial an amended plea filed under
the name of applicant’s
attorney was delivered. The
applicant recorded that she had signed the amended plea “on
behalf of (her) attorney”.
At the conclusion of the
plaintiff’s case the applicant sought a brief adjournment to
consult telephonically with her attorney.
This was granted and
in consequence thereof she moved for a postponement of the trial in
order to secure the services of counsel,
which was similarly
granted. During the resumed hearing a further special plea was
filed, which I have referred to
in my judgment. It too was
filed under the name of the applicant’s Durban attorneys and
signed by the applicant on
behalf of her attorney. It
was thus apparent, as evidenced by the record, that throughout the
proceedings, although
the applicant appeared in person, she was
assisted by an attorney of record duly mandated.
[12]
In respect
of her representation in Court it should be recorded that at the
commencement of the trial the applicant intimated that
there had been
a “mix up with the proceedings” and she was not able to
find an advocate to appear on her behalf at
short notice. There
was no suggestion at this stage that the failure of her advocate
reflected on the pleadings and her attorney
to attend sprang from an
inability to fund legal representation. She did not seek a
postponement at that stage. At
the closure of the plaintiff’s
case, however, as alluded to above, she sought a postponement of the
trial after consultation
with her attorney of record in order to
obtain the services of counsel in the hearing. For this
purpose, as recorded above,
the postponement was granted.
[13]
The events
at the resumed hearing are set out earlier. On this occasion
she intimated that she had received short notice of
the re-enrolment
of the matter and had been advised shortly before the commencement of
trial that her Durban advocate and attorney
would be unable to
attend. She had then sought legal aid, but without success.
Finally, she approached local attorneys
and advocates but they would
not accept her instructions. Ultimately she approached the
registrar who, she says, appointed
attorneys Cuban Chetty to
represent her. The basis for her approach to the registrar was
not disclosed. Cuban Chetty
did not appear. It emerges
from applicant’s application for a postponement of the
application for leave to appeal,
to which I have alluded earlier,
that Cuban Chetty Attorneys withdrew because applicant already had an
attorney of record. The
application for representation
in
forma pauperis
did
not proceed in the circumstances. At the time counsel, Ms
Gagiano, approached me in chambers to advise that a member of
the Bar
Counsel had requested her to assist, but that she had no knowledge of
the matter. She was unable to advise whether
she had been
appointed and if so on what basis. After further enquiry from
the Bar Counsel she reverted to advise that she
held no appointment
or brief to appear. She was accordingly excused.
Applicant again indicated her discomfort with
proceeding personally
and as set out above, sought a postponement from the Bar in order to
obtain representation. The respondent’s
insistence that
it be on oath is set out earlier. To this end the matter was
adjourned until the following morning.
An affidavit was
prepared and filed and, it transpires from a perusal of the file that
it was again delivered under the name
of her attorney of record.
At the resumption the following morning, however, the applicant
advised:
“
I
have spoken to plaintiff’s counsel and I feel that the
application for postponement should be withdrawn and that we proceed
without the call for legal assistance.”
[14]
The matter
accordingly proceeded, at the election of the applicant, without
legal representation.
[15]
In the
circumstances, although the applicant conducted the proceedings in
person, she was at all times represented,
ex
facie
the
record, by an attorney of record who,
prima
facie,
assisted her with legal advice during the course of the trial.
As recorded in my judgment she acquitted herself admirably
in the
conduct of the trial and, in the final analysis, having been afforded
an opportunity to bring an application for a postponement
in order to
obtain further legal assistance she consciously decided not to do
so. In these circumstances I do not consider
that there is a
reasonable prospect that a court of appeal will come to a different
conclusion on the grounds set out in paragraphs
1-3 of the notice of
application for leave to appeal.
[16]
I have
indicated repeatedly that,
ex
facie
,
the record she was at all times assisted by an attorney of record.
It appears from the file that
ex
post facto
,
after the completion of the trial and on 29 November 2016
correspondence was received by the Registrar’s office from
attorneys
M B Pedersen and Associates in Durban enclosing a notice of
withdrawal as attorneys of record which appears
,
ex facie
the proof of posting annexed thereto, to have been forwarded by
registered post to the applicant on 14 October 2016. It was,
however, only sent to the registrar, apparently by ordinary mail,
under cover of a letter dated 26 October 2016. The date
of
dispatch of the letter is not apparent from the file. This withdrawal
too was never referred to at the trial and,
ex
facie
the record, the applicant herself was unaware of the development.
In this regard it is significant that the court file reflects
that
the affidavit, prepared in appropriate form, purportedly by attorney
Brent Pienaar, for a postponement at the resumed hearing
(on 7
November 2016) was filed under the name of Attorney Pienaar as was
the later special plea. Indeed, on 16 March 2017
the applicant
filed a notice of address for service of notices in which she states
that she first received the notice of withdrawal
on 14 March 2017.
In all the circumstances neither the applicant nor the court had
knowledge of the existence of the notice
of withdrawal of her
mandated attorney of record. The documents contain no
indication of its having been sent to or delivered
to respondent’s
attorneys. All documents filed after 16 October 2016 were filed
under the name of Attorney Pienaar.
In these circumstances the
court did not know, nor could it have known of the withdrawal of
applicant’s attorney.
[17]
I turn to
the remaining grounds of appeal. The fourth ground of appeal proceeds
upon a misunderstanding of the facts. It records:
“
The Counsel for Plaintiff
pointed out to the Honourable Court that an amendment may not be made
to the bond agreement without both
parties signing an agreement to
that effect. The Plaintiff reflected the amended interest, but
failed to produce the signed
agreement, saying the onus is on the
Applicant. Even if the Applicant’s copy is lost, the
Plaintiff has to produce
its copy into evidence and failed to do so.”
[18]
I have
dealt in the judgment with the applicant’s assertion that the
interest rate provision in the loan agreement was amended.
The
respondent’s case was that it did not occur and it was put to
the applicant in evidence that respondent does not accept
her version
of events. On the respondent’s case therefore there is no
amended agreement which could be discovered.
The agreement
always was, from the outset, for a variable rate of interest. In
the circumstances I do not think that there
is a reasonable prospect
that another court would come to a different conclusion on the basis
of this ground of appeal.
[19]
The ninth
and tenth grounds of appeal relate to the production of the original
of the loan agreement. These grounds record:
“
9.
The Plaintiff failed to produce the original signed loan agreement.
These documents
are used for securitisation. The Plaintiff
therefore unlikely had
locus
standi
, in the first
place. Rule 32(2) requires a Plaintiff to submit the original
signed document in order to proceed with a claim.
10.
The Plaintiff’s Regional Manager said under testimony she did
not know what the insurance
of the loan agreement was for. It
is common knowledge that banks insure their loans against default and
was thus already
paid for the Applicant’s default. In the
interest of justice the Plaintiff must make the full facts available
to the
Court regarding securitisation and whether they insured this
loan according to practice and was already paid for it (possibly
twice).”
[20]
As recorded
in the judgment it is common cause that the copy of the agreement
annexed to the particulars of claim is a true copy
of the original.
Neither the signature nor the terms of the agreement are in dispute.
Securitisation was neither pleaded
nor raised in the trial. It
was never an issue in the trial. Similarly it was neither
pleaded nor alleged that the
defendant had been paid for its loss
from any other source. Non-securitisation and insurance against
loss do not form part
of the respondent’s cause of action and
accordingly there is no obligation on a plaintiff to prove these
issues unless they
are raised in the pleadings. For these
reasons I do not think that these grounds hold a reasonable prospect
of success on
appeal.
[21]
The grounds
set out in paragraphs 5, 6, 7, 8, 11 and 13 of the notice of
application for leave to appeal, as amended were fully
dealt with in
argument at the trial. I have set out the reasons for the
conclusion to which I came in my judgment.
There can be no
purpose in repeating same herein. I do not think that these
grounds hold a reasonable prospect of success
for the reasons set out
in the judgment.
[22]
Finally, in
the amended application for leave to appeal the applicant raised a
further ground of appeal that the court of first
instance had
misdirected itself in not including the
in
duplum-
rule
in its verdict. The
in
duplum
-rule
stipulates that interest may not exceed the amount of the outstanding
capital in respect of the principal debt. Once interest
reaches
parity with the amount outstanding on the capital interest ceases to
run until judgment is granted. (See
Paulsen
and Another v Slip Knot Investments (Pty) Ltd
2015 (3) SA 479
(CC).)
[23]
The present
matter concerns a loan account which is a credit agreement in terms
of the provisions of the National Credit Act 34
of 2005 (the NCA).
The NCA contains its own statutory
in
duplum
provision set out in section 103(5). It provides that,
notwithstanding any provision of the common law or a credit agreement
to the contrary, the amounts contemplated in section 101(1)(b) to (g)
that accrues during the time that the consumer is in default
under
the credit agreement may not, in aggregate, exceed the unpaid balance
of the principal debt under the credit agreement as
at the time that
the default occurs. The amounts set out in section 101(1) are
not limited to interest and include additional
charges to which I
shall refer as section 101 charges. I shall assume for purposes
hereof that the ground of appeal is directed
at the statutory
in
duplum
-rule
as formulated in the NCA.
[24]
This ground
of appeal too was not raised in the pleadings, nor in the evidence at
the trial, nor in argument. It has accordingly
not been
addressed in the judgment. I have given careful consideration
to this ground of appeal and to the submissions made
during argument
in the application for leave to appeal. I do not consider that
there is a reasonable prospect that another
court will come to a
different conclusion based on this ground of appeal. My reasons
therefore are threefold.
[25]
Firstly,
the loan agreement, the terms of which are not in dispute, stipulates
that:
“
A
certificate signed by a manager of the bank specifying the amount
owing by the borrower to the bank and further stating that such
an
amount is due, owing and payable by the borrower to the bank, shall
be
prima facie
(rebuttable) proof of the amount thereof and of the fact that such
amount is so due, owing and payable for the purpose of obtaining
provisional sentence or other judgment in any competent court as well
as execution under the covering mortgage bond ….”
[26]
The witness
Fourie, who holds the position of a Risk Mitigation Manager, Retail
Collections and Recoveries in the respondent prepared
such a
certificate which reflected that as at 28 July 2015 an amount of
R770 057 was due, owing and payable under the loan.
As
recorded in the judgment his calculation was not challenged.
[27]
In
Senekal
v The Trust Bank of South Africa Limited
[1978] 4 All SA 43
(A) the Appellate Division (now the Supreme Court
of Appeal) considered the effect of such a certificate. Miller
JA held
at p. 47-48:
‘…
As
was pointed out by STRATFORD JA in
Ex
parte Minister of Justice: In re R
v
Jacobson
and Levy
1931
AD 466
at
478
:
“
Prima facie
evidence,
in its more usual sense, is used to mean
prima
facie
proof
of an issue the burden of proving which is upon the party giving that
evidence.”
If
the
prima facie
evidence
or proof remains unrebutted at the close of the case, it becomes
“sufficient proof” of the fact or facts (on
the issues
with which it is concerned) necessarily to be established by the
party bearing the
onus
of
proof. (
Salmons
v
Jacoby
1939
AD 588
at
593
.)
The
onus
in
this case was clearly on the respondent to establish the amount of
the indebtedness of the principal debtor, Luna. (See
Narlis
v
South
African Bank of Athens
1976 (2) SA 573
(A) at 579G-H.) It sought to discharge that
onus,
inter alia, by
production
of the certificate which, by agreement between the parties, was to be
regarded as
prima
facie
evidence
(or proof) of the amount of such indebtedness. The inquiry, then, in
the light of what I have just said, is whether at
the end of the case
the
prima
facie
evidence
afforded by the certificate had been so disturbed as to prevent its
becoming sufficient proof. … There is no question
of the
certificate transferring the
onus
,
in the full sense of the word, to the appellant, but in the light of
the provisions of the certificate clause in the deed of suretyship,
the appellant could only at his peril refrain from giving or leading
evidence to counter the
prima
facie
proof
of the amount of the indebtedness afforded by the certificate.”
[28]
In
Senekal
the appellant contended that the certificate reflected erroneously
calculated or illegally charged interest or finance charges
having
regard to the provisions of the limitation and disclosure of Finance
Charges Act, 73 of 1968 (the Act). In this regard
Miller
proceeded at p. 51-52:
‘…
in
general, it was contended that the learned Judge had misdirected
himself by burdening the appellant with the
onus
of
proving that the claim for interest was excessive. (Cf
Wolsdorf
v
Fisher
1977 (4) SA 74
(D).) For present purposes I shall assume that the
onus
was
on the respondent to prove not only the amount of the indebtedness (I
have already mentioned that such
onus
was
on the respondent) but also that such amount was arrived at in
consonance with, not in breach of, the Act and that it was
recoverable
according to law. On that assumption, it appears to me
that a mere “suspicion” that, in arriving at such amount,
interest
might have been calculated at an excessive and unlawful rate
is not in itself sufficient to justify non-suiting the respondent.
I
accept that a certificate such as we are now concerned with, although
it provides
prima
facie
evidence
or proof of the amount of the debt, calculated according to the
agreement and the transactions between the bank and its
customer,
does not furnish proof of the enforceability of the agreement or the
legality of the claim for payment of that amount.
But in a case such
as this, when the appellant, faced with a claim for an established
amount owing by the principal debtor in terms
of his agreement with
the respondent (which on its face appears to be a valid and
enforceable agreement) contends that such agreement
is unlawful and
cannot be enforced because an unlawful rate of interest was charged,
he must at least refer to facts or adduce
evidence of such a nature
as to throw into judicially cognizable doubt the validity or legality
of the claim.”
[29]
These
comments appear to me to be equally apposite in the present case.
The effect thereof, it seems to me, is that where
the certificate
prepared by Mr Fourie remains unchallenged a mere “suspicion”,
in the absence of facts or evidence
to the contrary, that interests
which exceed the
in
duplum
amount may have been included in the calculation, is not sufficient.
[30]
Secondly,
as set out earlier herein, the issue was not raised in the pleadings
nor during the trial. In
F
& I Advisors (Edms) Beperk v Eerste Nasionale Bank van
Suid-Afrika Beperk
[1998] ZASCA 65
;
1999 (1) SA 515
(SCA) the Supreme Court of Appeal considered a claim
based on an overdrawn account. It concluded that it could not
be expected
of a plaintiff to set out the composition of his claim
unless the underlying debts were placed in dispute. Harms JA
stated
the general rule that issues had to be formulated in the
pleadings. The non-infringement of the
in
duplum
-rule,
he noted, had not been part of the appellant’s cause of action
and in those circumstances it was not expected of the
court of its
own accord to determine whether such a rule had been contravened nor
would a court act on the grounds of a mere suspicion.
[31]
These
findings appear to me to be of equal application in the present
matter. The non-infringement of the
in
duplum
-rule
does not constitute an essential part of the respondent’s case
and the respondent has not been challenged to prove that
the interest
and other section 101 charges do not exceed the outstanding capital
on the principal debt as at the date of default.
[32]
Thirdly,
notwithstanding the form of the pleadings the respondent did in fact
prepare a certificate in terms of
section 15(4)
of the
Electronic
Communications and Transactions Act, 25 of 2002
which contained a
full print-out of the applicant’s account in respect of the
loan. Whilst it is apparent from the
calculations that the
applicant fell in arrears almost immediately upon the inception of
the loan a number of large payments were
made from time to time which
in each case extinguished all arrear payments and effectively
reinstated the agreement as envisaged
in
section 129(3)
of the
National Credit Act. The
calculation shows further that on 16
January 2012 the applicant was last in credit in respect of the
contractual payments due.
The relevant default, for purposes of
section 103(5)
of the NCA occurred on 28 January 2012. As at 28
January 2012 the balance due on the account amounted to R502 081,33.
[33]
Section
126(3)
of the NCA stipulates that a credit provider must credit
each payment made under a credit agreement to the consumer as of
the
date of receipt of payment as follows:
“
(a)
Firstly, to satisfy any due or unpaid interest charges;
(b)
Secondly, to satisfy any due or unpaid fees or charges; and
(c)
Thirdly, to reduce the amount of the principal debt.”
(The
loan agreement contains a similar provision.)
[34]
As set out
earlier the calculation reveals that the applicant fell into arrears
from the very inception of the agreement.
Where the outstanding
balance as at 28 January 2012 still exceeded the entire sum of the
principal debt it is apparent that the
principal debt, as at the date
of default, had not been reduced at all. All payments made up
to this date have been allocated
to unpaid interest and other
section
101
charges and the outstanding balance on the principal debt
remained in the amount of R490 000.
[35]
The
detailed account further reflects interest charged from the date of
the default reflected earlier herein to 28 July 2015 in
the amount of
R284 378,76. Further
section 101
charges which accrued
during the period of default up to 28 July 2015 amounted to
R24 666,94. The total of the interest
and other
section
101
charges as envisaged in
section 103(5)
of the NCA accordingly
amounted to R309 045,70.
[36]
Judgment
was delivered on 31 January 2017. The addition of interest
calculated at 12,95% from 28 July 2015 to the date of
judgment
amounts to a further R165 942,36. The aggregate of the
interest which accrued during the period of default
up to the date of
judgment and the further
section 101
charges as charges envisaged in
section 103(5)
of the NCA therefore amounted to R474 988,06.
In these circumstances the evidence presented establishes that no
infringement
of section 103(5) of the Act occurred.
[37]
For these
reasons I do not think that this ground of appeal can succeed
either.
[38]
In the
result, the application for leave to appeal is dismissed with costs.
J
W EKSTEEN
JUDGE
OF THE HIGH COURT
Appearances:
For
Applicant:
In person
For Respondent:
Adv Beyleveld SC instructed by McWilliams & Elliot Inc, Port
Elizabeth