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[2022] ZAGPPHC 900
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Absa Bank Limited v Motsepe (25761/2021) [2022] ZAGPPHC 900 (22 November 2022)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
CASE
Number: 25761/2021
REPORTABLE:
NO
OF
INTEREST TO OTHER JUDGES: NO
REVISED:
YES
22/11/2022
In
the matter between: -
ABSA
BANK LIMITED
Plaintiff
AND
FANUEL
JOHN MOTSEPE
Defendant
JUDGMENT
This
Judgment was handed down electronically by circulation to the
parties’ and or parties’ representatives by email
and by
being uploaded to CaseLines. The date and time for the hand down is
deemed on 22 November 2022.
1.
The plaintiff
in this matter is Absa Bank Limited (‘
Absa
’
).
It has instituted proceedings against Fanuel John Motsepe (‘
Motsepe
’
)
and seeks summary judgment against him. For the reasons which follow,
the application is dismissed.
2.
Absa alleges
that on or about 20 February 2009 it concluded a written home loan
agreement with Motsepe. It pleads that it is ‘currently
unable
to locate the original loan agreement and copies thereof and is
accordingly unable to annex a copy’. What it does
annex to the
particulars of claim is a ‘comprehensive details’ sheet
which provides certain information.
3.
Absa further
pleads that pursuant to the loan agreement the debt was secured by
registering a continuing covering bond for the sum
of R1 200 000,00.
A copy of the mortgage bond is attached to the particulars of claim.
4.
Absa then
pleads that it ‘advanced R1 200 000,00 to the
defendant’s as the ‘principal debt’ [sic].
It then
pleads that the ‘principal debt as reflected in the loan
agreement together with interest and costs thereon would
be repaid to
plaintiff in monthly instalments of R15 327,05, together with an
interest rate of 5.65% below the prime lending
rate.
5.
The
particulars of claim continues with the allegations that Motsepe is
approximately 33.2 months in arrears in an amount in excess
of
R500 000,00. As of 19 May 2021 the defendant is, apparently,
indebted to Absa in the sum of approximately R1 100 000,00.
6.
Motsepe has
filed a plea in which he mostly denies the allegations, although the
mortgage bond is admitted.
7.
Absa also
seeks an order to issue a warrant of execution against the immovable
property and that it be sold without a reserve price.
8.
An affidavit
by Ms Malan is filed in support of the summary judgment application.
She is, according to her affidavit, a ‘senior
legal counsel in
the legal department’.
9.
She contends
the following in her founding affidavit:
‘
I
have perused all documents filed in the legal proceedings between the
applicant and the respondent, account statement, the mortgage
bonds,
legal notices, as well as the account history which shows the full up
to date history of the account since the credit agreement
was entered
into, such as the outstanding balance, interest, costs, and the
respondent’s full payment history, as well the
current
outstanding balances in the amount and the years.
On
perusal of the documents, electronic account records and data
available to me, I have acquainted myself fully with the facts
in
relation therein contained and I am able to swear positively to the
facts contained in this affidavit’.
10.
Her affidavit
continues by, in essence, summarising the particulars of claim.
11.
She continues
in paragraph 10 of her affidavit to state:
‘
I
respectfully submit that the particulars of claim disclose a valid
cause of action and I herewith verify the facts, the cause
of action,
as well as the amount claimed against the respondent.’
12.
The answering
affidavit for the summary judgment application raises a number of
defences.
13.
The defendant
raises two points
in
limine
. It
states that the application is fatally flawed for non-compliance with
rule 32(2)(b) in that the application is not supported
by an
affidavit. This is because the affidavit of Ms Malan had been
commissioned by a certain Mr van Schalkwyk of the firm Tim
du Toit &
Co. Inc. The evidence is that Tim du Toit & Co. is one of the
firms of attorneys that is on Absa’s panel
of attorneys and
that the provisions of regulation 7(1) of the Relations governing the
Administering of Oath or Affirmation published
under GN R1258 in
GG3619 of 21 July 1972, as amended, and promulgated in terms of
section 10 of the Justices of the Peace and Commissioner
of Oaths Act
60 of 1963 read with section 7 of the act would prohibit a person
from the firm of Tim du Toit to be a commissioner
of oaths for Absa.
14.
Absa denied
that this affidavit was commissioned contrary to the aforesaid
legislation. This is because the firm dealing with this
particular
matter is Strauss Daly and the submission was that Tim du Toit has no
particular interest in this litigation. I make
no finding in this
regard and, for the purposes of this judgment, I will accept that the
affidavit was properly commissioned.
15.
The second
point
in
limine
is
that the affidavit ‘consists completely of hearsay evidence,
which is inadmissible.’
16.
The basis for
this is contained in paragraph 17 of the answering affidavit. It
states this:
‘
No
confirmatory affidavits have been provided from third parties
responsible for compiling or uploading the account history on
plaintiff’s computer system, and importantly, Ms Malan did not
state that she was authorised to certify and had executed a
certificate in terms of section 15(4) of the Electronic
Communications and Transactions Act 25 of 2002 (‘ECTA’),
certifying
the facts in the Plaintiff’s record to be correct
and thus that she is able, on the basis thereof, to swear positively
that
the plaintiff will – having regard to the provisions of
section 15(4) of ECTA – be able to prove the relevant facts
at
the trial of the action by producing the electronic record or an
extract thereof.’
17.
There is, in
my view, certainly some force in this point. It is clear from the
founding affidavit that Ms Malan merely had regard,
on her version,
to the records without stating why the contents of those records are
within her personal knowledge.
18.
Absa
attempted to cure this difficulty and on 2 August 2022 filed a
certificate in terms of section 15(4) of the ECTA in the name
of a
certain Anton Coetzee. He confirms that in his capacity as a business
analyst with Absa he certifies that the ‘detailed
sheet and
statement of account annexed to the plaintiff’s particulars of
claim’ are true and correct and that same
are printouts of data
messages utilised by the plaintiff in the ordinary course of business
and litigation. But says the defendant
in its heads of argument, the
certificate is of no avail because it is impermissible in that no
further evidence is permitted to
presented by the plaintiff. Reliance
is placed on
Rossouw
and another v Firstrand Bank Ltd
[1]
.
19.
Mr Ellis
contended that the
Rossouw
case is of
no assistance because the certificate is not ‘evidence’
as it is simply there to confirm the amounts pleaded
in the
particulars of claim. That, to me, is quintessential the definition
of evidence. In fact, section 15(4) says that the certificate
is on
its mere production admissible in evidence against any person as
proof of the facts contained in such record, copy, printout
or
extract. Ironically, it is this very portion to which I have just
referred upon which Mr Ellis relied in his submission in dealing
with
the further objection to the certificate; namely that it was not
accompanied by a supporting affidavit. I need not decide
this issue
because, in my view, the certificate is, in fact, ‘evidence’
and should have been attached to the founding
affidavit. Afterall,
the evidence contained in the certificate is capable of being
rebutted. The defendant had no such opportunity
to do so in its
answering affidavit.
20.
If I am wrong
in this regard, there is a further reason that I am disinclined to
grant summary judgment.
21.
The
particulars of claim could not be clearer. It states that the amount
of R1 200 000,000 was advanced. It states that
the
repayment of this, together with interests and costs amount to
R15 327,05. However, when Mr Ellis was explaining to me
the
comprehensive details sheet, he mentioned that what makes up the
R15 327,05 is the ‘
basic
instalment
’
of
R12 575,81 together with the service admin fee of R69,00, the
life insurance of R1 336,83 and the property insurance
of
R1 345,41. On the face of it that might be true. Those are
submissions from the bar and not made under oath by Ms Malan.
There
is clearly a discrepancy to that which is pleaded in the
comprehensive detail sheet. It means I simply cannot grant summary
judgment.
22.
I have little
doubt that the defendant is probably indebted to the plaintiff. But
what that exact amount is may or may not be the
subject of debate.
From the bar I was also told that the amount advanced is not
R1 200 000,00 but only R1 050 000,00
and that the
amount of R1 200 000,00 was only the amount for which the
bond was registered. That, too, may or may
not be so, but those
are all statements for the purposes of an affidavit to be made and
not statements which are to be made from
the bar.
23.
Summary
judgment no doubt has its place in our legal system but, it must also
be remembered, that it is indeed a drastic remedy.
In
First
National Bank of SA Ltd v Myburgh and another
[2]
the
learned judge stated that:
‘
The
court will grant summary judgment where a plaintiff has an
unanswerable case. If the court has the slightest doubt, the court
will not grant summary judgment.’
24.
Given the
aforesaid discrepancies and the unsatisfactory manner in which the
founding affidavit dealt with these issues, I am not
inclined to
grant summary judgment.
25.
I thus make
the following order:
Order
26.
The summary
judgment application is dismissed with costs.
REINARD
MICHAU
ACTING
JUDGE OF THE HIGH COURT
GAUTENG
DIVISION, PRETORIA
Date
of hearing:
14
November 2022
Date
of judgment: 22
November 2022
Appearance
On
behalf of the Plaintiff Adv
AP Ellis
Cell:
082 3396359
Email:
apellis@lawcircle.co.za
Instructed
by Strauss
Daly Inc.
Tel:
012
348
1683
On
behalf of the Defendant
Adv
HP
van Nieuwenhuizen
Cell:
083
304
1181
Email:
hvn@joburgbar.co.za
Instructed
by Kaveer
Guiness
Tel:
012
364
2445
[1]
2010
(6) SA 439
(SCA) [34] – [36]
[2]
2002
(4) SA 176
(C) at para 9