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[2022] ZAMPMBHC 4
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ABSA Homeloans Guarantee Company (RF) (Pty) Ltd and Another v Watermeyer (1072/2019) [2022] ZAMPMBHC 4 (14 January 2022)
IN THE HIGH COURT OF
SOUTH AFRICA
MPUMALANGA
DIVISION, MBOMBELA (MAIN SEAT)
CASE
NUMBER: 1072/2019
REPORTABLE:
YES / NO
OF
INTEREST TO OTHER JUDGES: YES/NO
REVISED.
14/1/2022
In
the matter between:-
ABSA
HOMELOANS GUARANTEE COMPANY
(RF)
(PTY)
LTD
First Plaintiff/First
Applicant
ABSA
BANK LTD
Second
Plaintiff/Second Applicant
and
STEFAN
WATERMEYER
Defendant\Respondent
JUDGMENT
GREYLING-COETZER
AJ
INTRODUCTION
[1]
The plaintiffs applied for summary judgement
against the defendant, seeking payment of the sum of R587 205.64
(FIVE HUNDRED
AND EIGHTY-SEVEN THOUSAND, TWO HUNDRED AND FIVE RAND,
AND SIXTY-FOUR CENTS), together with interest at a rate of 11.56% per
annum
from 30 November 2019 to date of payment, both dates inclusive,
together with monthly service fees of R57.00 (FIFTY-SEVEN RAND).
[2]
The plaintiffs further seek an order declaring the
mortgaged property, specially executable. Consequential to this
relief, the plaintiffs
seek a warrant of execution to be issued and
the mortgaged property to be sold in execution on certain terms.
BACKGROUND
[3]
The plaintiffs’ claim against the defendant
arises from a written home loan agreement concluded between the
parties.
The defendant admits the home loan
agreement and all the terms contained therein as pleaded by the
plaintiffs, the written indemnity
agreement, the indemnity bond and
the majority of compliance by the plaintiffs with that set out by the
National Credit Act 34
of 2005 (“the NCA”).
[4]
Although the defendant does not deny his breach of
the home loan agreement and his failure to act in terms thereof, he
avoids same
by contending that the plaintiffs failed to comply with
the provisions of Sections 80 and 81 of the NCA, with the effect that
the
loan agreement is a reckless credit agreement.
[5]
In addition to the aforesaid, the defendant raised
a special plea, that the court does not have the required
jurisdiction to adjudicate
upon the matter.
JURISDICTION
[6]
It flows that a court which has no jurisdiction to
entertain an action cannot have jurisdiction to adjudicate upon an
application
for summary judgment in that action. If, however, a court
is vested with jurisdiction in an action, it has the necessary
jurisdiction
to hear and dismiss an application for summary judgment
brought in respect of said cause of action. Does that mean that
challenge
to the jurisdiction of the court automatically has the
effect that the defendant is entitled to defend the action and
summary judgment
therefore stand to be refused? Such a situation will
offend the purpose of a summary judgment and is therefore untenable.
[7]
This then brings us to the question how is such a
challenge treated? Should it be adjudicated as just another defence
which the
trial court will eventually consider if raised at summary
judgment stage in a manner justifying a finding that its bona fide
defence.
Or does it require a finding on the issue before proceeding
with the summary judgment enquiry.
[8]
In my view the latter would be the correct
approach. If the court is found to be devoid of jurisdiction in
respect of the action,
it would not enjoy the power to order leave to
defend. A finding is thus necessary in order to bring an end to the
action due to
the lack of jurisdiction or move to the summary
judgment application.
[9]
I proceed to adjudicate the issue of jurisdiction
as is required.
[10]
The defendant contends that the court lacks
jurisdiction as the plaintiffs in their particulars of claim allege
that the basis for
the jurisdiction of the court is founded on the
fact that the defendant resides within the court’s jurisdiction
and that
the mortgaged property, forming the subject matter of the
action, is similarly so situated. From the documents before court, it
appears that at least the latter is not factually correct. Does that
however oust this court’s jurisdiction?
[11]
The defendant argued that he does not reside
within the court’s jurisdiction and have not done so since
2015. In support of
this argument, the defendant filed an affidavit
by his wife, wherein she confirms that the defendant is residing with
her at Hartbeespoort
since 2016. According to the defendant the North
West Division of the High Court therefor has jurisdiction.
[12]
In the founding affidavit supporting the summary
judgment application it is alleged and founded on the common cause
facts that the
home loan agreement was partially concluded in
Nelspruit and that the defendant chose his
domicilium
citandi et executandi
address to be
within the jurisdiction of this court. A track-and-trace report,
dated 24 August 2021, confirms the defendant to be
resident at 428
Elawini Lifestyle Village, Riverside, Nelspruit and employed by the
Mpumalanga Rugby Union. The defendant argued
that this was an attempt
by the plaintiffs, contrary to that which was pleaded in the
particulars of claim, to change tact.
[13]
It was argued on behalf of the plaintiffs that
notwithstanding that pleaded in the particulars of claim, this court
enjoys jurisdiction
based on the common cause facts, more
particularly the fact that the home loan agreement was concluded in
Nelspruit. Therefore,
the home loan agreement came into effect in
Nelspruit. Further, the indemnity (which is undisputed) was similarly
signed at Nelspruit;
the power of attorney granted to the agent of
the defendant was signed at Nelspruit; the defendant chose his
domicilium-
address
to be in Nelspruit and the track-and-trace report indicates the
defendant to be resident in Nelspruit and employed by the
Mpumalanga
Rugby Union.
[14]
In amplification it was argued that
notwithstanding the defendant’s contention that he resides
within the jurisdiction of
the North West Division of the High Court,
and that the mortgaged property is situated within the jurisdiction
of the North West
Division of the High Court, same is factually
incorrect as the address where the defendant alleges to have been
residing since
2015, falls within the jurisdiction of the North
Gauteng Division of the High Court, Pretoria.
[15]
Ordinarily,
the
onus
of
establishing that a division of the High Court concerned has
jurisdiction, rests upon the plaintiff who, as
dominus
litis
,
must establish the court’s jurisdiction. However, where a
defendant frames an objection to jurisdiction in such a form to
constitute a substantive plea, then such
onus
rests
upon the defendant.
[1]
[16]
In the present matter the defendant elected to
raise the issue of jurisdiction by way of a special plea, therefore
the defendant
stands to prove that this court does not have
jurisdiction. The only evidence in support of the defendant’s
contention is
an affidavit by the defendant’s wife, which does
not in totality align with the allegations by the defendant.
According to
her, the defendant has been resident in the
Hartbeespoort area since 2016 oppose to 2015 as alleged by the
defendant. This aspect
does not take the matter any further.
[17]
In terms of
Section 21
of the
Superior Courts Act
10 of 2013
, jurisdiction can appropriately be described as meaning
the power vested in the division of the High Court to deal,
adjudicate
upon, determine and dispose of disputes between the
parties in a manner brought before it. It reads:-
“
A
division has jurisdiction over all persons residing or being in, and
in relation to all causes arising and all offences triable
within,
its area of jurisdiction, and all other matters of which it may
according to law take cognisance, and has the power …
”
[18]
The
time for determining whether a court has jurisdiction is when
proceedings commence. That is when the initiating papers are served
on the defendant or the respondent. Once jurisdiction is established,
it persists to the end of the proceedings, even though the
ground may
have ceased to exist.
[2]
With
that in mind, the current proceedings were served on the defendant on
8 April 2019 at 428 Elawini Lifestyle Village, Riverside,
Mbombela by
attachment.
[19]
The
phrase “
causes
arising
”
has
the result that the court’s jurisdiction under
Section 21
of
the
Superior Courts Act 10 of 2013
is simply determined by reference
to the common law or any relevant statute. In such determination
regard must therefore be had
to the jurisdictional connecting factors
recognised by the common law.
[3]
[20]
In
considering the connecting factors, it should be kept in mind whether
a court has jurisdiction in particular matters, require
(1) that it
be established that there are recognised grounds for jurisdiction and
(2) if there are, that the court has the power
to give effect to the
judgment sought.
[4]
In the
matter at hand there is clearly a recognised ground for jurisdiction,
as founded in the pleadings of the plaintiffs.
[21]
It is common cause that on 2 September 2015 and at
Nelspruit the defendant accepted the offer of a loan and signed the
loan agreement.
This allegation is suffices to found jurisdiction on
this court. In addition to that the following jurisdictional
connecting factors,
as recognised by the common law, are present:-
(a)
The plaintiffs offer to loan money to the
defendant in terms of the home loan agreement, which the defendant
accepted and signed
at Nelspruit on 2 September 2015. Therefore the
home loan agreement came into effect on 2 September 2015 at
Nelspruit.
(b)
The indemnity was similarly signed on 2 September
2015 in Nelspruit.
(c)
The agent of the defendant, Denise van Tonder,
acted on behalf of the defendant in terms of a power of attorney
which was given
to her at Nelspruit by the defendant on 2 September
2015, thereby giving effect to the transaction.
(d)
The
defendant chose his
domicilium
-address
to be at 428 Elowini Lifestyle Village, Riverside, Nelspruit.
[5]
(e)
The undisputed track-and-trace report dated August
2021 confirms the defendant’s address to be within Nelspruit,
as well as
his employer being the Mpumalanga Rugby Union.
[22]
Although the defendant’s contention that he
has not resided within the court’s jurisdiction since 2015, on
his version,
and 2016 on the version of his wife, he does not take
issue with the correctness of the facts set out in sub-paragraphs
supra.
Nor does he explain how, in such circumstances where the
summons was served at the defendant’s chosen
domicilium
-address,
he became aware of it. Comprehensiveness is expected of a party who
want to demonstrate to the court how far he is removed
from the
jurisdiction of the court. But that is simply not the true position.
[23]
It
seems to be suggested that convenience will dictate the matter to
have been brought in the High Court of the North West province.
A
court is not entitled to elect to hear or not to hear applications or
actions founded on convenience in circumstances where a
recognised
ground for jurisdiction exists.
[6]
MERITS
OF THE SUMMARY JUDGMENT APPLICATION
[24]
The
enquiry is not whether the plea discloses “
an
issue for trial
”
in
the literal sense of those words. It is whether the ostensible
defence that has been pleaded is
bona
fide
or
not.
[7]
The effect of this
requirement is to require a defendant to deal with a plaintiff’s
explanation in its opposing affidavit.
[25]
In the matter at hand the defendant contended that
he has a
bona fide
defence
to the plaintiffs’ claim, founded on
Sections 80
and
81
of the
NCA. According to the defendant, the plaintiffs failed to conduct an
assessment as required, in that the defendant was not
required to
provide information in respect of his financial means, prospects and
obligations; and the defendant did not understand
or appreciate the
risk, cost and obligation associated with the loan.
[26]
The defendant alleged that at the time of signing
the home loan agreement, the plaintiff calculated the amount
available for repayment
as R9 703.00, while the defendant had
already committed a further amount of R10 429.00 towards the
repayment of two other
bond payments. This property is not his
primary residence and he purchased same and sought a bond (as he did
with the other bonds
at unknown banks) for the purpose of speculating
in the rental market. The defendant explained that he entrusted one
Mr Rossouw
with the administration in respect of the bond
application. The defendant further alleges that:
26.1
he understood mortgage bonds only to be granted
where the property value meets the amount of the mortgage bond as a
minimum;
26.2
nobody from the plaintiffs’ office ever
engaged with him to explain the risk and implication of entering into
a mortgage bond.
[27]
Above allegations were canvassed by the plaintiffs
in the affidavit in support of the summary judgment application, as a
plaintiff
is required to do in terms of sub-rule (2)(b). From this it
was clear that as per the application submitted by the defendant in
support of a home loan, the defendant confirmed his basic gross
salary to be R32 000.00 per month, and after deductions and
expenses, there was a nett surplus of R9 703.00.
[28]
In the defendant’s list of expenses, it is
indicated that the total home loan instalments paid by the defendant
monthly is
R0.00. The plaintiffs further dealt with the defendant’s
bank statements and salary advices, as provided by the defendant
to
the plaintiffs. So too an affordability assessment was dealt with.
[29]
The misrepresentations seemingly relied on by the
defendant relate to a third party whom was not a party to the home
loan agreement.
The mere conducting of a valuation by the plaintiffs
does not support a conclusion that the plaintiffs undertook to only
provide
a bond in respect of a property of equal value.
[30]
The totality of the terms on which the plaintiffs
contracted with the defendant is set out in the admitted home loan
agreement and
bond documents. In the home loan agreement, more
particularly clauses 45 to 49, the extent of the defendant’s
obligations
was specifically set out. This document was duly signed
by the defendant.
[31]
The defendant, notwithstanding aforesaid being
specifically dealt with in the affidavit supporting the summary
judgment application,
failed to deal with the aforesaid documents.
The defendant did not even deny the specific paragraphs or said
documents. He therefore
accepted the correctness thereof, attempts to
avoid it with bare challenges and suggestion that one Mr Rossouw was
in charge of
the process. Its untenable in light of the common cause
facts of the matter and the proper execution of all the documents.
[32]
A defendant is required to present facts with
sufficient particularity for the court to judge that they constitute
a defence. This
appears to be the gist of the legal requirement
of
bona fides
in
the context of summary judgment proceedings.
[33]
As
held in
Mercantile
Bank Ltd v Star Power CC and Another
[8]
,
in testing the defendant’s
bona
fides,
the
totality of his allegations are to be considered rather than
isolating a particular averment and characterising it as bold,
vague
or laconic.
[34]
It is contended on behalf of the defendant that
from his opposing affidavit it is clear that there is a triable issue
of fact. This,
as set out above, is however not the yard stick. The
words “
an issue for trial
”
in
Rule 32
ought not to be taken literally, as
dealt with in the matter of
Tumileng Trading
(
supra
).
[35]
In the absence of the defendant actively engaging
the allegations in the plaintiff’s affidavit supporting summary
judgment,
firstly denying the allegation and documents in support,
and then explaining why these facts and documents should be rejected
they
stand conclusive on the issues. What
inter
alia
exacerbates it for the defendant
is that his version is that in taking part in Mr Rossouw’s
‘scheme’ he did not
fully disclose the true extent of his
financial obligations to the plaintiffs.
[36]
Founded on the common cause facts as evident from
the pleadings and affidavits, the conclusion is unavoidable that the
facts set
out by the defendant do not constitute a bona fide defence
to the plaintiffs’ claim.
[37]
Consequentially, the following order is made:-
1.
Payment of the sum of
R587 205.64
(FIVE HUNDRED AND EIGHTY-SEVEN THOUSAND, TWO
HUNDRED AND FIVE RAND, AND SIXTY-FOUR CENTS).
2.
Interest on the aforesaid amount at the rate of
11,56% per annum from 30 November 2019 to date of payment, both dates
inclusive,
together with monthly insurance premiums of R0.00 and
monthly service fees of R57.00.
3.
The following mortgaged property is declared
specially executable:-
(1)
A Unit consisting of:
(a)
Sectional Plan Number
SS342/2005
, in the Scheme
known as Villa De Bell in respect of the land and building or
buildings situated at Erf 424, Dassierand Township,
Local Authority:
Tlokwe City Council, of which Section the floor area, according to
the said Sectional Plan, is 35 (thirty-five)
square meters in extent;
and
(b)
an undivided share in the common property in
the Scheme apportioned to the said section in accordance with the
participation quota
as endorsed on the said sectional plan.
(Held by Deed of
Transfer 5189199/2015 and subject to such conditions as set out in
the aforesaid deed of transfer)
(2)
An Exclusive use area known as Parking P98,
measuring 13 (thirteen) square meters, an undivided share in the
scheme known as Villa
De Bell in respect of the land and building or
buildings situated at Erf 424 Dassierand Township, Local Authority:
Tlokwe City
Council, as shown and more fully described on Sectional
Plan No. 55342/2005
(Held by Notarial Deed
of Session SK 05754/15 and subject to the conditions as set out in
mentioned Notarial Deed of Session)
4.
The issuing of a warrant of execution, and
directing that execution against the mortgaged property is
authorised.
5.
The mortgaged property is to be sold at a sale in
execution without a reserve price.
6.
Costs on an attorney-and-client scale.
GREYLING-COETZER
AJ
DATE
OF HEARING:
25 October
2021
FURTHER
SUBMISSIONS:
28 October 2021
DATE
RESERVED:
29 October 2021
DATE
OF JUDGMENT:
14 January 2022
FOR
THE PLAINTIFFS:
Advocate Eastes
Instructed by Delport Van
den Berg Inc
E-mail:
liana@delberg.co.za
c/o Swanepoel Attorneys
Ref: L Killian/LM/AS0085
FOR
THE DEFENDANT:
Advocate Theart
Instructed by Viljoen
Attorneys
c/o Du Toit Smuts
Attorneys
E-mail:
stownsend@dtsmp.co.za
Ref: WIL316/2
1]
See
Botha
v Andrade
[2008] ZASCA 120
;
2009
(1) SA 259
(SCA) at 264I-265A
[2]
Communication
Workers Union v Telkom SA Ltd
1999
(2) SA 586
(T)
[3]
Golf
Oil Corporation v Rembrandt Fabrikante en Handelaars (Edms) Bpk
1963 (2) SA 10
(T) at
17G
[4]
Hugo
v Wessels
1987
(3) SA 837
(A) at 849H-J
[5]
See
Geyser
v Nedbank:
In
re
Nedbank
v Geyser
2006
(5) SA 355
(WLD) at 360E-F
[6]
Standard Bank of
South Africa Ltd and Others v Thobejane and Others
2021 (3) All SA 812
(SCA)
[7]
Tumileng Trading CC v
National Security and Fire (Pty) Ltd
2020
(6) SA 624
(WCC) at par [40]
[8]
2003 (3) SA 309 (T)
311I