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[2019] ZAECPEHC 89
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Changing Tides 17 Proprietary Limited NO V Bhokoyi and Another (202/2019) [2019] ZAECPEHC 89 (16 July 2019)
IN
THE HIGH COURT OF SOUTH AFRICA
EASTERN
CAPE LOCAL DIVISION, PORT ELIZABETH
Case
No: 202/2019
Date
Heard: 25 June 2019
Date
Delivered: 16 July 2019
In
the matter between:
CHANGING
TIDES 17 PROPRIETARY LIMITED NO
Plaintiff
and
SONGEZO
BHOKOYI
First Defendant
ANDISA
BHOKOYI
Second Defendant
JUDGMENT
EKSTEEN
J:
[1]
This is an application for summary judgment.
The claim arises from a Loan Agreement concluded during 2016 between
Blue Banner
Securitisation Vehicle RCI (Pty) Ltd and the defendants.
The sum of R1 187 500 was duly advanced to the defendants in terms
of
the Loan Agreement. A complex arrangement was thereafter
concluded (which is not material for present purposes) which
has the
effect that the outstanding balance now alleged to be due is
claimable by the plaintiff. The plaintiff’s
locus
standi
is, however, not in dispute in the
present proceedings and I shall accordingly not address that issue
herein.
[2]
The material terms of the Loan Agreement for
purposes of the present application are:
(i)
The agreement would endure for 240 months and would be payable in
monthly instalments
commencing on the first of the month following
registration of the indemnity bond and thereafter on the same day of
each consecutive
month;
(ii)
The monthly instalments payable, subject to change in terms of the
Loan Agreement, was
the amount of R13 025,25;
(iii)
The full amount outstanding from time to time would bear interest
at the market rate for
deposits in South African rand for a period of
three months, which appears on the Reuters screen, SAFEY page under
the caption
“Yield” as of approximately “11:00am”
Johannesburg time on the date of registration of the indemnity bond
referred to in the agreement and would reset thereafter on the same
basis on 21 February, 21 May, 21 August and 21 November (JIBAFR
rate)
converted to and expressed as a nominal annual rate, compounded
monthly, rounded up to the first decimal point (the base
rate), plus
3.9% as reflected in the agreement;
(iv)
The capital and interest would, subject to the provisions of the Loan
Agreement, be repaid in
240 consecutive monthly instalments
commencing on the dates specified and thereafter on the same date on
each consecutive month
until repaid in full;
(v)
The defendants were entitled to select any other date in the month as
his payment date;
(vi)
The defendants were entitled “to pre-pay any amount owed under
the agreement before the
due date for repayment”;
(vii)
The plaintiff would credit each payment made under the Loan Agreement
to the defendants’ account
as to the date of receipt of the
payments as follows:
(i)
First, to satisfy any due or unpaid interest
charges;
(ii)
secondly, to satisfy any due or unpaid fees or
charges; and
(iii)
thirdly, to reduce the amount of capital.
(viii)
A certificate purporting to be signed by a director of SA Home Loans
or an official of the lender showing
the indebtedness to the
plaintiff in terms of the agreement or any other fact in terms of or
arising out of the agreement shall
be
prima
facie
proof of the matter stated therein.
[3]
The plaintiffs allege that the defendants are in
breach of the agreement in that they have failed to pay the amounts
due under the
agreement promptly when they fell due. The
plaintiffs accordingly purport to have foreclosed on the loan.
It alleges
that the amount of R818 080,06 is now due and payable as
certified by a certificate contemplated in the Loan Agreement.
[4]
Rule 32(3)(b) of the Uniform Rules of Court
requires of a party seeking to avoid summary judgment to satisfy the
court by affidavit
that he/she has a
bona fide
defence to the action. To do so he/she should set out fully the
nature and the grounds of his/her defence and the material
facts upon
which he/she relies. The defendants oppose the application for
summary judgment and they have filed an affidavit
pursuant to the
provisions of Rule 32(3)(b) of the Rules of Court.
[5]
The defendants are married in community of
property and the thrust of the defence raised is that they did not
fail to pay the amounts
due under the agreement as and when they fell
due, are not in arrears and accordingly that the plaintiff is not now
permitted to
foreclose.
[6]
The agreement was concluded on 2 June 2016.
The defendants duly signed a debit order for the monthly installments
which accords
with clause 7.5 of the agreement. As recorded
earlier the monthly instalments at the outset amounted to R13 025,24
per month.
On 25 August 2016 the first instalment was deducted
from the defendants’ account in favour of the plaintiff.
On 31
August 2016, however, the second defendant was retrenched from
her employment. A retrenchment package then fell due to her.
[7]
The defendants state that they realized that they
would be unable to maintain the payments due under the bond unless
they utilised
the money received in the retrenchment package to
satisfy the bond payments. In these circumstances the
defendants paid the
amount of R450 000 from the retrenchment package
into the bond account on 22 September 2016, before the second
instalment fell
due. This, the defendants contend, would cover
their instalment for at least 34 months, until July 2019.
[8]
To their surprise, however, a further debit order
in the amount of R13 025,25 was deducted from their account of 25
September 2016.
Upon an enquiry they were informed that the
lump sum payment would not cover their bond instalments until July
2019, but that monthly
instalments would be reduced accordingly.
This they accepted under protest, however, they still maintain it to
be incorrect
and contend that upon a proper interpretation of the
Loan Agreement their monthly instalment have been covered by the lump
sum
payment until July 2019.
[9]
By virtue of the response of the plaintiff the
amount of the monthly instalments was reduced to approximately R8 500
per month which
was deducted from their account and which came from
the first defendant’s salary. This they managed to
maintain until
November 2017, albeit that it appears from the
statement of account that they did not always pay the full sum when
it was alleged
to be due. In any event, as at 1 November 2017
the defendants allege that their account reflected no arrears.
In December 2017 they entered into an agreement with the plaintiff,
so it is alleged, that the monthly instalments be reduced
to R4
800 per month for a period of 10 months until September 2018.
The plaintiff’s statement of account reflects a
monthly
deduction of R4 800 per month commencing in December 2018 and
persisting until September 2019, which accords with the alleged
agreement. In November 2018, however, the defendants received a
notice in terms of
section 129
of the
National Credit Act, 34 of
2005
, advising that they were in arrears with their bond instalments
in the amount of R72 543,37. This they deny for the reasons
set
out earlier.
[10]
In
Joob Joob Investments
Pty Ltd v Stocks Mavundla Zek Joint Venture
2009 (5) SA 1
(SCA) at 11G-12D the Supreme Court of Appeal placed the
process of summary judgment in its context thus:
“
The
rationale for summary judgment proceedings is impeccable. The
procedure is not intended to deprive a defendant with a triable
issue or a sustainable defence of her/his day in court. After
almost a century of successful application in our courts, summary
judgment proceedings can hardly continue to be described as
extraordinary. Our courts, both of first instance and at appellate
level, have during that time rightly been trusted to ensure that a
defendant with a triable issue is not shut out. In the
Maharaj
case
at 425G - 426E, Corbett JA was keen to ensure, first, an examination
of whether there has been sufficient disclosure
by a defendant of the
nature and grounds of his defence and the facts upon which it is
founded. The second consideration is that
the defence so disclosed
must be both bona fide and good in law. A court which is satisfied
that this threshold has been crossed
is then bound to refuse
summary judgment. Corbett JA also warned against requiring of a
defendant the precision apposite to
pleadings. However, the learned
judge was equally astute to ensure that recalcitrant debtors pay what
is due to a creditor.”
[11]
The remedy should accordingly be resorted to and
accorded only where the plaintiff can establish his claim clearly and
the defendant
fails to set up a
bona fide
defence. (See
Erasmus: Superior Court
Practice
(2
nd
ed) vol 2 page D1-383 and the authorities referred to therein.)
Reverting then to the defendants’ defence. Clause
7.2 of
the Loan Agreement provides expressly for the defendants’ right
to pre-pay any amount owed under the agreement before
the date upon
which it falls due. That is what they did. The provision
that the capital and the interest are to be
repaid in 240 consecutive
monthly instalments does not seem to me to detract from this right.
Neither do I think that the
provisions relating to the allocation of
payments necessarily has the effect that the defendants are to be
deprived of the benefit
which they sought to achieve by paying 34
instalments in advance. It seems to me, at best for the
plaintiff, that the issue
turns on the interpretation of the
contract, which ought not be decided in summary judgment
proceedings. The interpretation
of the contract is, after
all, dependent upon all admissible evidence (see
Natal
Joint Pension Fund v Endumeni Municipality
2012 (4) SA 593
(SCA) at 503F-504B) which should be tendered and
tested in trial proceedings. Suffice it to say and I think that
the defence
which the defendants have made out presents at least a
triable issue.
[12]
In the result:
1.
The application for summary judgment is
dismissed.
2.
The defendants are granted leave to defend.
3.
The costs occasioned by the summary judgment
application are to be costs in the action.
J
W EKSTEEN
JUDGE
OF THE HIGH COURT
Appearances:
For
Plaintiff: Adv
T Rossi instructed by Strombeck Pieterse Attorneys, Port
Elizabeth
For
Defendants: Adv A Barnett
instructed by Goldberg & De Villiers, Port Elizabeth