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[2022] ZAECMKHC 108
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Nedbank v Richardson (2184/2021) [2022] ZAECMKHC 108 (12 December 2022)
IN
THE HIGH COURT OF SOUTH AFRICA
EASTERN
CAPE DIVISION, MAKHANDA
CASE
NO. 2184/2021
In
the matter between:
NEDBANK
LIMITED
Plaintiff
and
ALMARIE
RICHARDSON
Defendant
JUDGMENT
Rugunanan
J
[1]
This is an application for summary
judgment.
[2]
On good cause shown, condonation for the
plaintiff’s late delivery thereof and the defendant’s
late delivery of heads
of argument was granted.
[3]
Simultaneously with the claim sounding in
money the plaintiff claims further relief under rule 46A of the
uniform rules of court
(‘the rules’) for an order
authorising the sale in execution of the residential immovable
property namely, Erf 7029,
East London (‘the property’)
as more fully described in the particulars of claim.
[4]
Where
a plaintiff claims both forms of relief it is competent for the court
to deal with the money judgment while deferring the
claim for special
executability.
[1]
[5]
For that reason, I directed that the latter
application be adjourned
sine die
pending the outcome of the summary judgment proceedings for the
plaintiff’s monetary claim.
[6]
Under the present amended formulation of
rule 32, summary judgement proceedings are competent once a defendant
has delivered a plea.
The plaintiff’s supporting affidavit now
falls to be made in the context of the deponent’s knowledge of
the content
of the delivered plea and supersedes the previous
formulaic supporting affidavit that ensued after the defendant had
delivered
its notice of intention to defend.
[7]
A
plaintiff is now required to engage with the content of the plea in
order to substantiate its averments that the defence is not
bona
fide
and has been raised merely as a delaying tactic.
[2]
[8]
For
a plaintiff, the amended rule has raised the bar and onus for
securing summary judgment
[3]
,
but some of the well-known and established requirements that have to
be established by a defendant to avoid summary judgment remain
intact.
[9]
A
defendant must still show that it has a defence which is
bona
fide
and good in law
[4]
. A
bona
fide
defence requires full disclosure of the nature and grounds of the
defence and the material facts relied upon in support thereof.
[5]
To satisfy these requirements a defendant will have to engage
meaningfully with the additional material now required to be
contained
in a plaintiff’s affidavit in support of summary
judgment.
[6]
[10]
The plaintiff’s claim is liquidated
and certified in the amount of R1 477 101.80. It represents
the balance of the
principal debt together with finance charges as at
15 June 2021. The cause of action is founded on the defendant’s
breach
of her monthly payment obligations in instalments of
R23 738.89 under a written agreement concluded between the
parties on
9 September 2008 subject to the provisions of the
National
Credit Act 34 of 2005
for loan of the amount of R1 900 000
– the repayment of which was secured by a mortgage bond passed
by the defendant
in favour of the plaintiff.
[11]
A full recapitulation of the material terms
of the agreement pleaded in paragraphs 4 to 6 of the particulars of
claim would be gratuitous.
These are satisfactorily pleaded in
compliance with
rule 18
and with reference to the written loan
agreement attached to the particulars of claim as Annexure POC2. The
said paragraphs are
to be read as if incorporated herein.
[12]
I shift focus to the defendant’s plea
and her affidavit in opposition to the summary judgment application.
Beginning with
the plea. At the onset it is an unsatisfactorily
drafted document flowing through with a litany of bald averments that
the plaintiff’s
allegations are ‘denied as if
specifically traversed’. In every instance of its occurrence,
the bald contention evades
dealing with the point of substance
alleged in each of the specific paragraphs in the particulars of
claim to which the averment
is directed. Where there is no
consequential and constructive engagement with the substance of the
plaintiff’s allegations,
this presents as a clear breach of
rule 18(5)
of the rules.
[13]
The evasiveness of the plea is aptly
demonstrated in the plaintiff’s supporting affidavit from
paragraphs 11
et seq
which should be read as if incorporated herein; the said paragraphs
meticulously pointing out the failing in each of the instances
in
which the bald contention is raised.
[14]
Notably, the defendant’s affidavit in
opposition does not meaningfully engage with, or engage at all, with
the failings illustrated
by the plaintiff.
[15]
I am satisfied that the plaintiff’s
supporting affidavit has properly engaged with the content of the
plea in order to substantiate
plaintiff’s averments that the
defence (for reasons to follow) is not
bona
fide
. Except for admitting her breach
by averring that ‘… it became impossible for me to
discharge the mortgage bond repayments
to the plaintiff in accordance
with our existing agreement’, the defendant’s opposing
affidavit merely proffers a rendition
of her plea with argumentative
legal matter purportedly given under legal advice. One may reasonably
conclude that the defendant
is not
bona
fide
. In such an instance her defence
of compromise (dealt with below) is not
bona
fide
in the sense that it is good in
law.
[16]
A
compromise is the settlement by agreement of disputed obligations,
whether contractual or otherwise.
[7]
If there is no dispute there can be no compromise.
[8]
Put otherwise, it is a form of novation where the obligations novated
by the compromise must previously have been disputed.
[9]
It is thus the essence of a compromise that the parties thereto, by
mutual assent, agree to the settlement of previously disputed
obligations.
[10]
[17]
Reverting once again to the plea, the
defendant, in denial of her alleged breach (contrary to her assertion
quoted from the opposing
affidavit), avers the oral conclusion of an
agreement of compromise. The compromise interceded consequent to an
‘SMS’
invitation by the plaintiff for the defendant
to contact its call centre to resolve the issue of her outstanding
debt in
the circumstances set out in some length in paragraph 9 of
her plea.
[18]
Reproduced as pleaded, are the following
terms the defendant maintains are essential to the compromise:
‘
(a)
The terms of repayment of the defendant’s mortgage debt under
the loan agreement would be as follows,
namely, that she would pay
instalments of R16 100.00 per month over a period of 120 months.
(b)
The plaintiff’s agent would procure that the defendant’s
portfolio would be transferred
to her, whereupon she would implement
the aforesaid terms of repayment in the plaintiff’s records.’
[19]
Paragraph (a) constitutes a variation of
the loan agreement by reduction of the initial contractually agreed
monthly instalment
of R23 738.89 to an instalment of R16 100.00.
This demonstrates the problem which the defendant faces in the
present
case namely that, in order for there to be a valid
compromise, there must in fact have been a dispute (pleaded as a
material fact)
between the parties in regard to their obligations
under the loan agreement which they agreed to resolve by creating a
fresh set
of rights and obligations. The defendant’s bald
denials, (in particular of the monthly repayment of R23 738.89)
to which I have alluded to earlier do not establish a dispute in the
light of the express provisions concerning repayment which
is readily
apparent in the loan agreement annexed to the summons.
[20]
Indisputably, the defendant was obliged
from inception of the loan agreement to make a monthly repayment of
R23 738.89. As
at 15 June 2021 the balance of the principal debt
together with finance charges was certified in the amount of
R1 477 101.80,
the quantum of which is not disputed or
varied in either of the aforementioned specific terms as pleaded.
[21]
Asserting that the compromise is legally
unsustainable and impermissible, the plaintiff’s supporting
affidavit relies on the
loan agreement encapsulating a non-variation
clause. The clause specifically precludes recognition of any
amendment, alteration,
variation or consensual cancellation ‘unless
reduced to writing and signed by the parties’ (see Annexure
POC2 clauses
28.1-28.2).
[22]
In
summary, the plaintiff asserts, correctly in my view, that the terms
of the loan agreement must be honoured – in effect
seeking
reliance on the principle
pacta
sunt servanda
enunciated in
SA
Sentrale Ko-op Graanmaatskappy Bpk v Shifren
[11]
;
the defendant on the other hand asserting the unenforceability of the
non-variation clause regard being had to considerations
of good
faith, fairness and reasonableness with reference to the
Constitutional Court approach in
Beadica
231 CC and Others v Trustees for the time being of the Oregon Trust
and Others
[12]
.
[23]
The principles and their evolution in the
constitutional era have been accurately dealt with in the parties’
heads of argument
and do not require repetition.
[24]
It merely suffices to state that the
approach adopted by the defendant is unsustainable.
[25]
Material facts pertaining to disputed
obligations are significantly lacking.
[26]
Accordingly, a
bona
fide
defence in law has not been
established.
[27]
The following order will issue:
1.
The plaintiff is granted summary judgment
for payment by the defendant of the amount of R1 477 101.80;
2.
The defendant shall pay the plaintiff’s
costs as between attorney and client as taxed or agreed.
M. S. RUGUNANAN
JUDGE OF THE HIGH
COURT
APPEARANCES:
For
the Plaintiff:
J. J. Nepgen
Instructed
by
Pagdens
Attorneys.
c/o
Carinus Jagga Attorneys
67
African Street
Makhanda
(Ref:
J. Jagga)
For
the Defendant: W. H. Olivier
Instructed
by
Dicks
Van Der Merwe
c/o
Netteltons Attorneys
118A
High Street
Makhanda
(Ref:
R. Hart)
Date
heard:
13 September 2022
Date
delivered:
12 December 2022
[1]
Changing
Tides 17 (Pty) Ltd NO v Frasenburg
[2020] ZAWCHC 59
para 30.
[2]
Tumileng
Trading CC v National Security and Fire (Pty) Ltd; E and D Security
Systems CC v National Security and Fire (Pty) Ltd
[2020] ZAWCHC 28
paras 21-22.
[3]
Standard
Bank of SA Ltd v Rahme and Another
[2019] ZAGPJHC 287 para 8.
[4]
Maharaj
v Barclays National Bank Ltd
1976
(1) SA 418
(A) at 426.
[5]
Saglo
Auto (Pty) Ltd v Black Shades Investments (Pty) Ltd
[2020] ZAGPPHC 808 para 48.
[6]
Standard
Bank of SA Ltd and Another v Five Strand Media (Pty) Ltd and Others
[2020] ZAECPEHC 33 para 12.
[7]
R H Christie and G B Bradfield,
Christie’s
The Law of Contract in South Africa
,
LexisNexis 6
th
ed at 473.
[8]
Ibid
at 473.
[9]
Ibid
at 473.
[10]
Karson
v Minister of Public Works
1996 (1) SA 887
(ECD) at 893H.
[11]
1964 (4) SA 760 (A).
[12]
[2020] ZACC 13.