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[2024] ZAGPPHC 47
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Nedbank Limited v Shoko (32115/21) [2024] ZAGPPHC 47 (22 January 2024)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
CASE
NO: 32115/21
(1)
REPORTABLE: YES/NO
(2)
OF INTEREST TO OTHER JUDGES: NO
(3)
REVISED: NO
Date:
22 January 2024
E
van der Schyff
In
the matter between:
NEDBANK
LIMITED
APPLICANT
and
DENNIS
SHOKO
RESPONDENT
REASONS
Van
der Schyff J
Introduction
[1]
Summary judgment was granted against the respondent on 30 November
2023. Summary judgment
was granted for the amount of R 1 645 745,76.
The respondent's immovable property was declared specially
executable. The respondent
was also ordered to return a motor
vehicle, to wit, a New Ford Ranger, to the applicant. The respondent
filed a notice in terms
of rule 49(1)(c) of the Uniform Rules of
Court requesting the reasons for the order on 6 December 2023.
[2]
There was no appearance on behalf of Mr. Shoko, despite the matter
being postponed
from 8 November 2023 for him to be present. I was
informed that a legal representative who was not formally on record
attended
the proceedings. The application proceeded since the matter
was postponed previously, and the date was specifically arranged with
Mr. Shoko to accommodate him.
Background
[3]
The applicant (Nedbank) instituted an action consisting of three
claims against the
respondent (Mr. Shoko). The summary judgment dealt
with two claims, wit, claims A and C. Claim A relates to monetary
relief sought
in terms of a mortgage bond and the authorization to
execute against the immovable property. Claim C relates to the return
of a
motor vehicle purchased in terms of an instalment sale
agreement.
Claim
A
[4]
Claim A arises from a mortgage loan agreement concluded between the
parties. The debt
was secured by way of a mortgage bond registered
over the immovable property concerned.
[5]
Mr. Shoko does not deny that he is in arrears in terms of the loan
agreement. In his
Plea, he explains that he lost his wife during
COVID, as a result of which he was not able to meet his payments.
Nedbank was not
prepared to restructure the loan. He relies on s
81(2) of the National Credit Act 34 of 2005 (the NCA). He avers that
the credit
agreement is reckless because Nedbank failed to conduct a
credit assessment despite him providing them with an income and
expenditure
account.
[6]
Mr. Shoko states that the house is his primary residence, where he
resides with his
three minor daughters. He claims that he has no
other place to stay and that he will be rendered homeless in the
event that the
property is to be sold in execution.
[7]
In terms of s 80(1) of the NCA, the relevant time for determining
affordability is
at the time of the application. On his own evidence,
Mr. Shoko provided Nedbank with a statement reflecting his income and
expenditure.
In the founding affidavit to the application for summary
judgment, Nedbank refers to and provides the application
documentation
provided by Mr. Shoko. Nedbank contends that from the
content thereof, it is evident that Mr. Shoko indicated a net average
monthly
income amount of R 36 663.00. The listed monthly liabilities
amounted to R26 580.00, which included payment of R14 200,00 per
month
towards rent. The payment towards the mortgage would replace
the rent. As a result, a surplus of R10 083.00 was reflected. If the
rental that would become available once the property was bought is
excluded, the surplus was R24 283.00. The income position of
his wife
was not considered because she did not hold a permit to work in South
Africa at that stage.
[8]
In considering the defence of reckless credit, I have to consider
that it is Mr. Shoko
who provided Nedbank with the information on
which they made a determination as to whether he qualified for credit
or not. Mr.
Shoko does not disclose any facts supporting the reckless
lending allegation. Bald allegations of reckless credit have no merit
and will not be considered to constitute a
bona
fide
defence.
[1]
Nedbank is entitled
to summary judgment for the amount claimed and proved.
[9]
In considering the Rule 46A application, Mr. Shoko does not provide
sufficient information
indicating that he will indeed be homeless if
Nedbank is authorised to execute against the mortgaged property. Mr.
Shoko earns
an income. No case is moved that he could not afford rent
in other suitable accommodation.
[2]
The arrears are substantial. Mr. Shoko does not indicate that he can
satisfy the judgment debt by any other means. In the circumstances,
and after considering all the papers filed of record, I am of the
view that execution against the property is warranted.
Claim
C
[10]
Claim C arises from an instalment sale agreement. The subject matter
of the agreement is a New Ford Ranger, adequately described
in the
papers filed. Mr. Shoko denies the allegations made by Nedbank and
avers that regular payments have been made on the account.
He denies
being aware of any arrears on the account and claims to be in a
position to clear all the arrears if he is provided with
proof of
being in arrears.
[11]
Nedbank provided the necessary proof that Mr. Shoko is in arrears.
Mr. Shoko admitted to being
in arrears. Despite being provided with
this calculation the papers do not reflect that Mr. Shoko endeavored
to settle his instalment
sale account with Nedbank before this matter
was heard.
Conclusion
[12]
It is well-known that the rationale behind summary judgment
applications is to afford a plaintiff
who has an action against a
defendant who does not have a defence, to obtain relief without
resorting to a trial. A court will
not grant summary judgment when a
defendant raises triable issues or a sustainable defence.
[13]
In casu
, no triable issues were raised, neither did Mr. Shoko
disclose any
bona fide
defence that is good in law. As a
result, the order sought by Nedbank was granted on 30 November 2023.
A reserve price was included
in relation to the sale of the immovable
property to protect Mr. Shoko's interests.
E
van der Schyff
Judge
of the High Court
Delivered:
This judgement is handed down electronically by uploading it to the
electronic file of this matter on Caselines. It will
be emailed to
the parties/their legal representatives as a courtesy gesture.
For the applicant:
Adv. H. Marais
Instructed by:
HACK STUPEL &
ROSS ATTORNEYS
For the respondent:
No appearance
Date of the hearing
and order:
30 November 2023
Date of reasons:
22 January 2024
[1]
See
SA
Taxi Securitisation (Pty) Ltd v Mbatha and Two Similar Cases
2011 (1) SA 310
(GSJ) at para [26].
[2]
See
NPGS
Protection and Security Services CC and Another v FirstRand Bank Ltd
2020 (1) SA 494
(SCA) at para [55].