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2021
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[2021] ZANCHC 16
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Wepener and Another v FirstRand Bank and Others (360/2019) [2021] ZANCHC 16 (19 March 2021)
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IN THE HIGH COURT OF
SOUTH AFRICA
(NORTHERN
CAPE DIVISION, KIMBERLEY)
CASE
NO.: 360/2019
Date heard: 06-03-2020
Date delivered:
19-03-2021
In
the matter between:
Daniel
Johannes
Wepener
1
st
Plaintiff
Ria
Wepener
2
nd
Plaintiff
and
FirstRand Bank
Limited
1
st
Defendant
The Sheriff of the
High Court, Kimberley
2
nd
Defendant
Heinrich Smit
3
rd
Defendant
The Registrar of
Deeds. Kimberley
4
th
Defendant
CORAM:
WILLIAMS J:
JUDGEMENT
WILLIAMS
J:
1.
The respondents in this matter are the plaintiffs
in the action, Mr
Daniel Wepener and Ms Ria Wepener. The excipient is Firstrand Bank
Limited, the first defendant in the action.
The Sheriff of the
High Court, Mr Heinrich Smith and the Registrar of Deeds are
respectively the second, third and fourth defendants.
2.
The action was instituted by the plaintiffs
for; (i) the setting
aside of a default judgment given against the plaintiffs in favour of
the first Defendant on 16 February 2018;
(ii) the setting aside of
the subsequent order declaring the immovable property specially
executable; (iii) declaring that the
plaintiffs’ obligations
flowing from three mortage bonds registered in favour of the first
defendant was extinguished on
8 May 2017; (iv) interdicting the
first, second and fourth defendants from transferring the immovable
property known as Erf 4[...],
Kimberley to the third defendant or any
other person pending the resolution and final decision of the action
under discussion,
another action against the first defendant under
case no 891/18 and the investigation conducted by the Human Rights
Commission;
(v) that subject to the above, directing the first
defendant to cancel all bonds registered over the above-mentioned
immovable
property within 30 days of the above relief granted; and
(vi) costs.
3.
The first defendant filed a notice of exception
on 2 April 2019 on
the basis that the particulars of claim lacked averments to sustain a
cause of action and on the same day gave
the plaintiffs an
opportunity by way of a notice in terms of Rule 23(1) to remove
certain causes of complaint which render the
particulars of claim
vague and embarrassing. The plaintiffs amended the particulars
of claim but the first defendant persisted
by filing a notice of
exception to the amended particulars of claim on the basis that it
was vague and embarrassing.
4.
I deal firstly with the exception that the particulars of
claim do not disclose a cause of action.
5.
Under this heading the first defendant has objected to the fact
that the claims related to the setting aside of the default judgment,
the order declaring the property executable and the interdict are
brought on action instead of application, which Mr White who
appeared
for the first defendant, referred to being as the incorrect legal
mechanism.
6.
Quite apart from the fact that the contention
is incorrect, since
none of these claims referred to are such as are obliged to be
brought on Notice of Motion, the first defendant
itself is guilty of
using the incorrect legal mechanism since this specific complaint
relates to form rather than substance, which
is what an exception is
concerned with. There is no merit in this complaint. I
now turn to deal with the further grounds
as contained in the notice.
Ground
1
7.
With respect to the plaintiff’s claim
for the setting aside of
the default judgment, the complaint is that the plaintiffs have
failed to establish any of the requirements
in terms of Rule 31(2)
(b), i.e. a reasonable explanation for the default; a clear
indication that the application is made
bona fida,
and not
with the intention of delaying the first defendant’s claim; and
that the established
bona fide
defence is
prima facie
a
valid defence to the first defendant’s claim.
8.
The setting aside of the default judgment
is however not sought in
terms of Rule 31 (2) (b), but in terms of the common law ground of
fraud. What the plaintiffs have
to allege and prove in such a
case are the following: that the first defendant was a party to the
fraud; that the evidence was
in fact incorrect; that it was made
fraudulently and with the intention to mislead; and that if the
correct facts were placed before
the court, the court would not have
given the judgment/order it did.
9.
The plaintiffs make the necessary allegation in respect of the
default judgment in the following
paragraphs of the particulars of
claim:
9.1
Paragraph 17, which I refer to in paragraph 22 herein;
9.2
paragraph 19.6 (c), which I refer to herein in paragraph 13.1 and 24;
9.3
Paragraph 19.6(b), which I refer to herein to in paragraph 24;
9.4
Paragraph 30 (a) to (e), which I refer to herein in paragraph 13.3.
10.
Whilst it is so that the particulars are clumsily drafted, the
pleading
must be looked at as a whole. The courts will not
easily allow an exception unless the excipient can show that on any
construction
of the pleadings, the claim is excipiable – this
is not the case
in casu
. The exception should be
dismissed.
Ground
2
11.
The exception herein relates to the plaintiffs’ claim for the
rescission of the order declaring the immovable property especially
executable. The complaint in this regard is that the
plaintiffs
have failed to establish grounds for the rescission of the order as
required in either of Rule 31 (2) (b) or Rule 42
(1). Should
the plaintiff rely on the common law for the rescission of order of
10 August 2018, the argument is that they
have failed to show good
cause.
12.
It is abundantly clear from the particulars of claim, that the
plaintiffs
rely on the common law ground of fraud for this claim.
What the plaintiffs have to allege and prove in such a case are
discussed
in paragraph 8 herein.
13.
The necessary allegations are in fact made in the particulars of
claim. The plaintiffs allege that the deponent to the affidavit
in support of the application to have the immovable property
declared
executable, a certain Mr Mohau Mokoena, in the employ of the first
defendant, made certain statements in his affidavit
falsely and with
the intent to mislead the court to the effect
inter alia
that:
13.1
Since the date of (default) judgment the first defendant had
attempted to contact the plaintiffs on at least 27 occasions (either
via telephone calls, sms notifications or e-mails) with a view to
make alternative arrangements to rehabilitate the plaintiffs’
home loan account.
(paragraph 7.2 of the affidavit which is
annexed to the particulars of claim).
The
plaintiffs aver in their allegations relating to non-compliance with
s 129 (1) and/or
s 130
of the
National Credit Act 34 of 2005
, that
the first defendant has “
bluntly and repeatedly refused any
communication”
between the plaintiffs and first defendant
and in fact threatened the plaintiffs with an interdict (paragraph
19.6 (c) of the particulars
of claim).
13.2
At paragraph 8.6 of the affidavit Mokoena alleged that “
the
plaintiff (first defendant) is presently unaware of the financial
position of the defendants (plaintiffs herein), and at the
time of
granting of default judgment was similarly unaware”
and
at paragraph 8.7 of the affidavit;
“
When
the agreements of loans were concluded, the defendants (plaintiffs)
were employed, alternatively had a source of income to
repay the
capital sum and finance charges. At present and at the time
default judgment was granted the plaintiff (first defendant)
did not
know whether the defendants (plaintiffs) were employed or had a
source of income to pay off the debt to the plaintiff.”
13.3
Paragraph 30 of the particulars of claim state the following:
“
30.
The Plaintiffs allege, having regard to the facts set out in paras 21
to 29 above that:
a.
The First Defendant (the Bank), at all material times and
specifically on 8 May 2017 and thereafter was aware that First
Defendant
(the Bank) had by written notice to the First Plaintiff
informed First Plaintiff of its intention to terminate the services
by
First Plaintiff to First Defendant. Said notice purported,
inter alia, termination of such services provided by first Plaintiff
to first Defendant and would be effective immediately, thereby
effectively and immediately suspended any future income of First
Plaintiff from which to service the Home Loan.
b.
The First Defendant, therefore, at the time of Application for
default Judgment against Plaintiffs and at the time of the
Application
to have the property specially executable full well knew
that as a result of the First defendant’s
own actions
referred to above made it impossible for Plaintiffs to fulfil their
obligations under the Home Loan through no fault of Plaintiffs
and
that in fact and in law the Plaintiffs’ obligations were
extinguished. The first Defendant, therefore, had no cause
of
action on which to apply for default Judgment and no cause of
whatsoever nature on which to apply for the property to be declared
executable.
c.
Having regard to the aforegoing allegations First defendant
(the Bank) was in duty bound to disclose the true facts to the
Honourable
Court.
d.
Plaintiff’s, in view of the aforegoing allegations aver
that the statements set out in the Affidavit by Mohau Mokoena are
blatantly false to the knowledge of Mokoena and first defendant (the
Bank). First Defendant acted with the intention of misleading
this Honourable Court and inducing it to believe the first Defendant
(the Bank), inter alia, on the strength of MOHAU MOKOENA’s
Affidavit containing incorrect and/or false allegations.
e.
Had this Honourable Court been aware of the true facts as
alleged by Plaintiffs herein before, it would not have granted any of
the relief claimed by the First Defendant (the Bank) in the
Application for Default Judgment and the Application in terms of
Rule
46
A, but it was induced to do so by reason of the First Defendant’s
aforesaid fraudulent conduct.”
14.
In light of the above and in my view the plaintiffs have established
a cause of action based on fraud in relation to the setting aside of
the order declaring the immovable property specially executable.
This ground of exception therefore stands to be dismissed.
Ground
3
15.
This ground of exception relates to the plaintiffs’ third
claim, i.e. declaring the obligations of the plaintiff to the first
defendant, flowing from the three mortgage bonds registered
in favour
of the first defendant, extinguished as on 8 May 2017. The
basis for the claim is founded on the grounds of supervening
impossibility. The complaint in this regard is that in light of
the provisions of clause 18.2 of the mortgage bonds, plaintiffs
have
failed to allege any further agreement expressly overriding the terms
of the specific clause, which reads as follows:
“
The
Bank (First Defendant) shall be entitled at its election to retain
any amounts which would otherwise be due for payment by the
Bank to
the Mortgagor (Plaintiffs) until such time as the amount outstanding
has been repaid in full. It being agreed that
notwithstanding
the terms and conditions of any other agreement between the Mortgagor
and the Bank entered into before or after
this Bond, unless such
agreement by its terms expressly overrides the provisions of this
clause, no such obligation of the Bank
to the Mortgagor shall become
due for payment unless and until the amount outstanding has been paid
and discharged in full.”
16.
This ground of exception appears to be based on a misconception as
to
the basis of the plaintiffs’ claim in this respect. The
short background to this claim, as gleaned from paragraph
19 of the
particulars of claim is as follows. The first plaintiff and the
first defendant had entered into a service agreement
during September
2015. Sometime thereafter, the first defendant “
unexplained
and unlawfully summarily”
cancelled the service agreement
between the parties, cutting off the first plaintiff’s source
of income which made it impossible
for the plaintiffs to perform
their obligations under the respective bonds. The first
plaintiff has subsequently instituted
an action under case no 891/18
against first defendant based on the repudiation of the service
agreement. In their particulars
of claim
in casu,
the
plaintiffs plead the following opposite paragraphs 19.4 and 19.5
thereof:
“
19.4
The First Defendant, however, intentionally wrongfully and unlawfully
and with ulterior motive repudiated the said Service
Agreement,
thereby effectively and with immediate effect cut of Plaintiff’s
source of income from which the monthly bond
instalments would’ve
been paid.
19.5
The performance by Plaintiff’s of the Agreement(s) with first
Defendant under the respective bonds
became impossible, was
unforeseen and came about through no fault of the Plaintiff’s
and extinguished their obligations to
pay in terms of the Agreements
with First Defendant.”
17.
The first defendant in its notice of exception appears to labour
under the impression, completely unfounded in my view, that the first
plaintiff wants his damages paid for breach of the service
agreement
before performance becomes due in term of the mortgage bonds –
hence the reference to clause 18.2 of the bonds.
Meanwhile the
plaintiffs allege in plain terms that the termination of the first
defendant’s employment with first defendant
caused supervening
impossibility for the plaintiffs to perform their contractual
obligations relevant to the mortgage bonds, therefore
having the
effect of discharging such obligations. Whether such a claim
would withstand scrutiny at trial is a different
matter. But
that is not what the exception addresses and I am confined to the
exception as formulated in the notice.
This
ground of exception should be dismissed.
Ground
4
18.
This ground of exception relates to the plaintiffs claim for an
interdict. Mr Olivier readily conceded that no cause of action
had been established in this respect in the particulars of
claim.
I therefore need not deal with it in any detail. This ground of
exception should be upheld.
The
exception relating to the particulars of claim being vague and
embarrassing.
19.
In its notice of exception in this regard, the first defendant
formulates
its grounds of exception as follows:
‘
3.1
At paragraphs 11-11.7 of the Plaintiffs’ particulars of claim
the Plaintiffs allege that consequent
upon an Application in terms of
Rule 46A
by the first Defendant, relief was sought against the
Plaintiffs in the alternative. As such, the first Defendant is
prejudiced
by the vague and embarrassing ambiguity of the Plaintiffs’
allegation, as it is unclear from such as to which relief the
Plaintiffs seemingly object to.
3.2
At paragraph 17 of the Plaintiffs’ particulars of claim, the
Plaintiffs allege that the First
defendant failed to comply with due
notice to the Plaintiffs in terms of Section 129(1) of the Credit Act
prior to issuing summons,
and yet thereafter at paragraph 19.6 (b)
and (c) admit to being in possession of such a notice. The
Plaintiffs’ allegations
in this regard are contradictory, vague
and embarrassing and the First defendant is accordingly prejudiced in
its ability to plead
thereto.
3.3
At paragraphs 31-33 of the Plaintiffs’ particulars of claim,
reference is made to the Plaintiffs’
apparent submission of a
complaint to the Human Rights Commission. The relevance of
these paragraphs is of no substance to
the apparent relief sought by
the Plaintiffs, and accordingly is vague and embarrassing.”
20.
Before I address these grounds of exception I must mention that while
I appreciate that the manner in which the particulars of claim has
been drafted may make it cumbersome to plead to, the onus is
on the
first defendant as excipient, to show vagueness amounting to
embarrassment and embarrassment amounting to prejudice (see
Lockhat
and Others v Minister of the Interior
1960 (3) 765 (DCLD) at 777
and authorities referred to therein). In
Leathern v Tredoux
1911 NPD 346
, at 348 it was said that where a statement is vague,
it is either meaningless or capable of more than one meaning.
It is
embarrassing in that it cannot be gathered from it what ground
is relied on and therefore it is also something which is insufficient
in law to support in whole or in part the action or defence.
Ad
3.1 quoted above
21.
From a reading of the particulars as a whole, paragraphs 11 to 11.7
therein is merely a restatement by the plaintiffs of the relief
sought by the first defendant in its application in terms of s
46 A.
There is nothing ambiguous to the statement.
Ad
3.2 quoted above
22.
Paragraph 17 of the particulars of claim states, as far as is
relevant
the following:
“
.
. . . First defendant pretended purportedly to have complied with
s
129
(1) of the
National Credit Act, by
referring to a copy of such
notice to Plaintiffs, being annexure POC 8, dated 28 November 2017, a
copy of which is annexed hereto
marked “AA” . . . . . .
In reality and in fact First Defendant (the Bank) did not comply with
the requirements of
section 129(1)
and/or section 130 of the NC Act
before applying for Default judgment and before scheduling the
aforementioned sale in Execution.”
23.
Para 18 states:
“
In
amplification of Plaintiffs’ denial that first defendant
complied with section 129(1) or 130 of the NC Act Plaintiffs refer
to
paragraph 19.4, 19.5 and 19.6 below.”
24.
Paragraph 19.6 states the following at (b) and (c) thereof:
“
(b)
First defendant, notwithstanding Notice to Plaintiff’s as per
annexure “AA” hereto,
with specific reference to par 3 of
annexure “AA”, made it impossible to pay any arrear
amount, as alleged or at all;
(c)
Further and notwithstanding the contents of par 3.2 of annexure “AA”
First Defendant
bluntly and repeatedly refused any communication
between the Plaintiffs and First Defendant or any of First
Defendant’s employees,
in fact in writing threatened Plaintiffs
with an Interdict as per annexure “CC” hereto.
First Defendant’s
actions and intentions, therefore nullified
the Notice in terms of Section 129(1) to Plaintiffs. Said notice was
of not force or
effect.”
”
25.
The complaint of the first defendant disregards the fact that the
plaintiffs do not deny in paragraph 17 of the particulars that they
received the notice – only that it was in purported
compliance. Paragraphs 19 (6) (b) and (c) explain, or amplifies
as is undertaken in paragraph 18, why non-compliance is alleged.
There
is nothing vague or embarrassing or contradictory about the
paragraphs under discussion.
Ad
3.3 as quoted above
26.
Mr Olivier has conceded that paragraphs 31 to 33 of the particulars
of claim are irrelevant. I must point out however that this
concession was incorrectly made. The reference to the
investigation by the Human Rights Commission is not made in a vacuum
but relates to plaintiffs’ claim for an interdict in
which
relief is sought pending
inter alia
the investigation by the
Human Rights Commission. However, having conceded that the
claim for an interdict is not supported
by the requisite allegations
in the particulars of claim and should therefore be struck out, these
paragraphs would in the event
be superfluous and therefore stand to
be struck out.
27.
The only issue which remains is that of costs. In the normal
course of events costs would follow the result and the party being
substantially successful would be entitled to his costs.
In
this instance however, where the plaintiffs’ badly drafted
particulars of claim created the opportunity for an exception
to be
taken by an over-zealous excipient, the equitable order would be one
that costs be costs in the cause.
The
following order is made:
a)
The exceptions relating to paragraphs 31 to 33 of the particulars of
claim and prayer 4 thereof
are upheld.
b)
The above-mentioned paragraphs and prayer are struck from the
particulars of claim.
c)
The remaining exceptions are dismissed.
d)
The costs of this application are costs in the cause
CC
WILLIAMS
JUDGE
For
1
st
Defendant:
Adv.
A White
Duncan
& Rothman Inc
For
Plaintiffs:
Adv.
D Olivier
WN
Reyneke Attorneys
c/o
Elliot, Maris, Wilmans & Hay