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[2021] ZAGPJHC 68
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Firstrand Bank Limited v Mbana and Another (43962/2019) [2021] ZAGPJHC 68 (20 July 2021)
REPUBLIC
OF SOUTH AFRICA
IN THE
HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
(1)
REPORTABLE:
NO
(2)
OF INTEREST TO OTHER
JUDGES:
NO
(3)
REVISED:
Date:
20
th
July 2021
CASE
NO
:
43962/2019
DATE
:
20
th
July 2021
In
the matter between:
FIRSTRAND BANK
LIMITED
Plaintiff
and
MBANA
,
SHAUN
SISA
First Defendant
MABENA
,
BATHABILE INGRID
Second Defendant
Coram:
Adams
J
Heard
:
20 July 2021 – The ‘virtual hearing’ of the
application was conducted as a videoconference on the
Microsoft
Teams
digital platform.
Delivered:
20 July 2021 – This judgment was handed down electronically
by circulation to the parties' representatives by email, by being
uploaded to the
CaseLines
system of the GLD and by release to
SAFLII. The date and time for hand-down is deemed to be 16h00 on 21
July 2021.
Summary:
Civil procedure – Exception to
particulars of claim – plaintiff contends that particulars of
claim do not disclose a
cause of action – cause of action
alleged to be unlawful and a contravention of the National Credit Act
– exceptions
dismissed
ORDER
(1)
The first and second defendants’
exception to the particulars of plaintiff’s claim is dismissed
with costs.
(2)
The first and second defendants jointly and
severally, the one paying the other to be absolved, shall pay the
plaintiff’s
costs of the exception on the scale as between
attorney and client.
JUDGMENT
Adams J:
[1].
The defendants
except to the particulars of plaintiff’s claim on a number of
grounds, all of which allege that the particulars
do not disclose a
cause of action. Some, if not all of the grounds of exception are of
an overly technical nature.
[2].
So, for
example, the first ground is to the effect that, in terms of the
National Credit Act, Act 34 of 2005 (‘the NCA’),
the
plaintiff is only entitled to claim from the defendants ‘payment
of the default amount’ – that is the amount
of the
arrears – and not the total amount outstanding on the bond.
This means that the statutory demands in terms of s 129
of the NCA,
so the defendants contend, were also defective.
[3].
Additionally,
so the defendants contend s 129(1)(b), read with section 129(3) of
the NCA, provide that any legal proceedings to
enforce the credit
agreement (unlike the present legal proceedings) must be such as to
enable the defendants to ‘remedy a
default’. Therefore,
so the contention goes, in law the plaintiff is therefore not
entitled to claim the full outstanding
amount against the defendants.
[4].
There is no
merit in this contention.
[5].
Secondly, the
defendants except to the particulars of claim on the ground that a
clause in the Home Loan Agreement, which requires
the plaintiff to
draw in writing to the notice of the defendants the default, and to
enforce the agreement by claiming the amount
of the default, only
entitles the plaintiff to claim the arrears and not the full amount.
[6].
This ground of
exception is based on a particular interpretation of the contract.
This interpretation does not accord with the agreement
and a proper
interpretation of the agreement. In any event, a particular
interpretation of the contract can never be a ground for
an exception
especially if the agreement is open to another interpretation, which
supports a cause of action. Accordingly, this
ground of exception is
void of any merit.
[7].
The third
ground of objection is directed at the balance outstanding and the
fact that, according to the certificate of balance,
which certified
that the outstanding balance was accelerated as and at 7 November
2019, from which date interest would be running.
The arrears, so the
defendants aver, cannot be increasing after this date. In addition to
this point making little sense to me,
I am of the view that there is
no merit in the contention that it is a valid ground of exception.
The Applicable Legal Principles and its
Application in this Case
[8].
A brief
overview of the applicable general principles is necessary before I
consider the exception raised by the defendants and
the grounds on
which they are based. These general principles, as gleaned from the
case law, can be summarised as follows.
[9].
In considering
an exception that a pleading does not sustain a cause of action, the
court will accept, as true, the allegations
pleaded by the plaintiff
to assess whether they disclose a cause of action. The object of an
exception is not to embarrass one’s
opponent or to take
advantage of a technical flaw, but to dispose of the case or a
portion thereof in an expeditious manner, or
to protect oneself
against an embarrassment which is so serious as to merit the costs
even of an exception.
[10].
The purpose of
an exception is to raise a substantive question of law which may have
the effect of settling the dispute between
the parties. If the
exception is not taken for that purpose, an excipient should make out
a very clear case before it would be
allowed to succeed. An excipient
who alleges that a pleading does not disclose a cause of action or a
defence must establish that,
upon any construction of the pleading,
no cause of action or defence is disclosed.
[11].
An
over-technical approach should be avoided because it destroys the
usefulness of the exception procedure, which is to weed out
cases
without legal merit. Pleadings must be read as a whole and an
exception cannot be taken to a paragraph or a part of a pleading
that
is not self-contained. Minor blemishes and insignificant
embarrassments caused by a pleading can and should be cured by
further
particulars.
[12].
Having said
the aforegoing, however, exceptions are to be dealt with sensibly
since they provide a useful mechanism to weed out
cases without legal
merit. An over-technical approach destroys their utility and insofar
as interpretational issues may arise,
the mere notional possibility
that evidence of surrounding circumstances may influence the issue
should not necessarily operate
to debar the Court from deciding an
issue on exception.
[13].
Where,
however, an exception is based upon the fact that a pleading is vague
and embarrassing, the ‘every reasonable interpretation’
approach highlighted above does not apply, and an exception may be
taken to protect one's self against embarrassment.
[14].
In sum, the
exception raised by the defendants is based on the proposition that
the acceleration clause relied upon by the plaintiff
to claim the
whole amount outstanding in terms of the loan is unlawful as it
offends and falls foul of the NCA. As I have already
indicated, in my
view, this submission is misplaced for the simple reason that a
reading of the NCA as a whole and of the individual
parts do not
support this legal conclusion. Nowhere in the NCA is it provided that
an accelerated clause in a Credit Agreement
is prohibited. In that
regard, a superficial consideration of the Act alludes to certain
provisions and outlaws same – not
so of acceleration clauses.
[15].
Therefore, on
the basis of a proper interpretation of the NCA, I am not persuaded
that the grounds of exception are valid. Importantly,
one should also
consider the provisions of the Home Loan Agreement itself, which
supports the plaintiff’s a cause of action.
[16].
Accordingly,
the exception to the particulars of plaintiff’s claim should be
dismissed.
Costs
[17].
The general rule in matters of costs is
that the successful party should be given his costs, and this rule
should not be departed
from except where there are good grounds for
doing so, such as misconduct on the part of the successful party or
other exceptional
circumstances. See:
Myers
v Abramson
[1]
.
[18].
Applying this general rule, the defendants
should be ordered to pay the costs of the exception applications on
the scale as between
attorney and client, as provided for in the
agreement.
Order
[19].
Accordingly, I make the following order: -
(1)
The first and second defendants’
exception to the particulars of plaintiff’s claim is dismissed
with costs.
(2)
The first and second defendants jointly and
severally, the one paying the other to be absolved, shall pay the
plaintiff’s
costs of the exception on the scale as between
attorney and client.
L R ADAMS
Judge of the High Court
Gauteng Local Division, Johannesburg
HEARD ON:
20
th
July 2021 – in a ‘virtual hearing’
during a videoconferences on the
Microsoft Teams
digital
platform
JUDGMENT DATE:
20
th
July 2021 – judgment handed down
electronically
FOR THE PLAINTIFF / RESPONDENT:
Adv H M Viljoen
INSTRUCTED BY:
Charl Cilliers Incorporated, Johannesburg
FOR THE DEFENDANT / EXCIPIENT:
Adv P W Makhambeni
INSTRUCTED BY:
S A Maninjwa Attorneys, Roodepoort
[1]
Myers v Abramson
,
1951(3) SA 438 (C) at 455