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[2019] ZAMPMBHC 15
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Absa Bank Limited v Lai and Another (112/2019) [2019] ZAMPMBHC 15 (19 November 2019)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
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REPUBLIC OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
MPUMALANGA
DIVISION, MBOMBELA
(1)
REPORTABLE: NO
(2)
OF INTEREST TO OTHER JUDGES: NO
(3)
REVISED
CASE NUMBER: 112/2019
In
the matter between:
ABSA
BANK LTD
APPLICANT
And
RALTON
LAI
FIRST RESPONDENT
NATSHA
MINNAAR
SECOND RESPONDENT
JUDGMENT
MASHILE J:
INTRODUCTION
[1]
This is a summary judgment application to which the provisions of the
old Rule 32
of the Uniform Rules of Court apply. The Applicant
instituted action against the Respondents for:
1.1 Payment of
R511
582.34;
1.2 Payment of interest on the
amount claimed at the rate of
8.60%
per
annum, from
22 November 2018
to date
of final payment, such interest calculated and capitalised monthly in
arrears;
1.3 That the property described
in paragraph 2 below be declared specially executable;
1.4 That the Registrar be
authorized to issue a Writ of Execution against the immovable
property referred to in paragraph 2 below
to give effect to the order
granted in terms of sub-paragraph 1.3 above;
1.5 That the honourable court set
a reserve price for the sale
of
the immovable
property; and
1.6 Costs as between attorney and
client to be taxed.
[2]
The debt arose in terms of a home loan agreement concluded by the
parties, which was subsequently
secured by registration of a first
covering mortgage bond
No
B8000/2008)
over immovable property described as PORTION 5 OF ERF [….]
REGISTRATION DIVISION J.T. PROVINCE OF MPUMALANGA
MEASURING 395
(Three Hundred and Ninety Five) Square Metres HELD by Deed of
Transfer T8080/2008 Known as:
6 Kinaboom,
West Acres, Extension 24 SUBJECT TO THE CONDITIONS WHERE AFTER
REFERED TO IN THE SAID CERTIFICATE OF TRANSFER.
BACKGROUND
[3]
The Respondent failed to live up to their commitments recorded in the
first covering
mortgage bond as a result of which the Applicant
instituted the action as set out above. The Respondents defended the
action and
believing that the Respondents do not have a bona fide
defence and that they were defending the matter solely for the
purpose of
delaying the proceedings, the Applicant launched this
summary judgment application.
ISSUES
[4]
The issues for consideration are:
4.1
Is this an appropriate matter in which the court can grant summary
judgment?
4.2
Is the claim of the Applicant clear and technically correct on the
papers?
4.3 Is the
amount claimed liquid or if not, is the claim of an AMOUNT that is
easily determinable? If all these
questions are answered in the
affirmative –
4.3.1
Has the Respondent set out a bona fide defence, which will be good in
law if proved at the trial
proceedings of the main case?
LEGAL PRINCIPLES
[5]
Previously, courts have
held the view that summary judgment is
an extraordinary and drastic remedy in that it effectively closes the
doors of the court
to the defendant, without affording him
opportunity to present his case and call witnesses in support and
also, and most importantly,
that he is not afforded opportunity to
test the plaintiff's case in cross examination. See,
Erasmus,
Superior Court Practice, Van Loggerenberg, Juta, Volume 2, page
D1-383.
[6]
The notion that summary judgment application is an extraordinary and
drastic remedy
was somewhat qualified
in the matter of
Joob
Joob Investments (Pty) Ltd v Stocks Mavundla Zek Joint Venture
2009 (5) SA 1
SCA at 11G - D, when the SCA explained that it is in
fact not a drastic measure
provided that
it is correctly
considered by the trial Court. The court stated that:
6.1 The
procedure is not intended to deprive a defendant with a sustainable
defence or a triable issue of his
day in court;
6.2 If a
defence is
bona fide
, in the sense that it will be good in law
if proven at the trial, summary judgment will not be granted; and
6.3 Courts
should not, in an application for summary judgment, require the same
precision from the defendant as
is required in pleadings.
[7]
In
Maisel v Strul
1937 CPD 128
, a decision that has been
persistently mentioned and followed with support in subsequent cases,
including Joob Joob Investments
supra,
the Court held that:
“
A court
must be careful to guard against injustice to the defendant who is
called upon on short notice and with only the information
contained
in or annexed to the particulars of claim, and without the
opportunity to enforce discovery and to cross examine the
plaintiff's
witnesses to satisfy the Court that he has a bona fide defence.”
[8]
It is a formal requirement that the applicant must set out his claim
with clarity
and exactitude. See,
Visser v De La
Rey
1980 (3) SA 147
T at 150.
(This includes annexing copies
of all contracts upon which an applicant’s claim is based. In
Gulf Steel (Pty) Ltd, Rack-Rite BOP (Pty) Ltd and Another
1998
(1) SA 679
(O), it was held, at 683H –
684B, that:
“
In view of
the nature of the remedy the Court must be satisfied that a plaintiff
who seeks summary judgment has established its
claim clearly on the
papers and the defendants have failed to set up a bona fide defence
as required in terms of the Rules of this
Court. There are
accordingly two basic requirements that the plaintiff must meet,
namely a clear claim and pleadings which are
technically correct
before the Court. If either of these requirements is not met, the
Court is obliged to refuse summary judgment.
In fact, before even
considering whether the defendant has established a bona fide
defence, it is necessary for the Court to be
satisfied that the
plaintiff's claim has been clearly established and its pleadings are
technically in order. Even
if a defendant fails to put up
any defence or puts up a defence which does not meet the standard
required of a defendant to resist
summary judgment, summary judgment
should nevertheless be refused if the plaintiff's claim is not
clearly established on its papers
and its pleadings are not
technically in order and in compliance with the Rules of Court
.”
[9]
Conversely, it is not required of the Respondent to set out his
defence in detail
and in lengthy and prolix affidavits as it is not
the intention of the rule to provide the plaintiff with the
unilateral advantage
of a preview of the defendant's evidence. See,
Edwards v Menezes
1973 (1) SA 299
(NC) at 304 and
Breytenbach v Fiat SA (Edms) Bpk
1976 (2) SA 226
T at 229. As such,
summary judgment is not easily granted where the defendant has
filed opposing papers in accordance with the rules of Court.
EVALUATION
[10]
Perhaps the first issue to consider should be whether or not the
claim is liquid. In view of
lack of challenge to the liquidity of the
claim, the court will accept that the claim is liquid and that it is
therefore proper
to launch summary judgment proceedings in
circumstances where the Applicant believes that the Respondents have
entered appearance
to defend purely for purposes of delay.
[11]
Following stating his names, the deponent to the founding affidavit,
Mr Matsepe, declares that:
“
1
.
1.1
I am the Vice President at Home Loans
Recoveries Division of Absa Bank Limited.
1.2
I am duly authorized to depose to this
affidavit and to launch an application for summary judgment on behalf
of the Plaintiff.
1.3
All the documents and records in respect
of the relationship between the Plaintiff and the Defendants are in
my possession and under
my control and I have access and insight into
that documentation on a continuing basis. The indebtedness of the
Defendants is also
apparent from the documentation in my possession
and under my control. In the circumstances, I have direct and
personal knowledge
of the facts underlying the causes of action
against the Defendants and can therefore swear positively to the
facts verifying those
causes of action and the amounts due as set out
in the summons issued on behalf of the Plaintiff against the
Defendants in the
abovementioned matter.
2.
I herewith confirm that the Defendants are indebted to
the Plaintiff on the causes and the facts and in the amounts as set
out and
claimed in the Plaintiffs summons and herewith verify the
said causes and facts and the amounts claimed as set out in the
summons.
3.
In the circumstances, I confirm that the Plaintiffs claim against the
First and Second Defendants,
jointly and severally, the one to pay
the other to be absolved is as follows:
3.1
Payment in the amount of
R511
582.34
3.2
Payment of interest on the amount of
R511
582.34
at a rate of
8.60%
per annum, from
22
November 2018
to date of final
payment, such interest calculated and capitalized monthly in arrears.
3.3
An order declaring the following property
specially executable:
PORTION
5 OF ERF 2071 WEST ACRES
EXTENSION 24
TOWNSHIP REGISTRATION DIVISION J.T.
PROVINCE OF
MPUMALANGA
MEASURING
395 (Three Hundred and Ninety-Five) Square metres
HELD by Deed of
Transfer T8080/2008
Also known
as:
6 Kinnaboom, West Acres, Extension 24
SUBJECT TO THE
CONDITIONS WHERE AFTER REFFERED TO IN THE SAID CERTIFICATE OF
TRANSFER
3.4
That the Plaintiff / Registrar be authorized to issue a Writ of
Execution against the immovable property
referred to in paragraph 3.3
above.
3.5
That the honourable court set a reserve price for the sale of the
immovable property.
3.6
Costs to be taxed on a scale as between attorney and client;
4.
In my opinion the Defendants do not have a
bona
fide
defence to the action and the
claim of the Plaintiff and the notice of intention to defend was
delivered solely for the purpose
of delay.”
[12]
Firstly, the Respondents have raised non-compliance with Uniform Rule
of Court 32(2) as a defence
arguing that the facts verified in the
affidavit in support of summary judgment, deposed to by Matsepe, do
not fall within his
personal knowledge and he can, accordingly, not
swear positively to the facts. It is now settled that a deponent to
an affidavit
of an applicant, which is a corporation in summary
judgment proceedings need not have first-hand knowledge of every fact
comprising
the plaintiffs cause of action. In that instance,
knowledge derived from appropriate documents in the possession of the
corporation
will suffice for reliance. See,
Rees and Another v
Investec Bank Ltd
2014 (4) SA 220
(SCA)
and
ABSA BANK LTD v
FUTURE INDEFINITE INVESTMENTS 201 (PTY) LTD AND OTHERS (WESTERN CAPE
DIVISION CASE NO. 20266/2015) where Binns-ward
J distinguished the
facts before him from those in Rees before dismissing the summary
judgment application.
[13]
The Respondent has relied heavily on what the court said in the
Future Indefinite Investment
201 case
supra
as such, it is
crucial as well to make a distinction between this matter and the
facts that presented before Binns-Ward J in that
case. In the case of
Future Indefinite Investments 201, the deponent refers to relevant
documents without mentioning which ones
they are whereas in the
current matter, over and above stating that he is employed in the
home loan recoveries division of the
plaintiff, the division within
which this transaction would ordinarily be handled, the following are
notable:
13.1
That all the documents relating to this cause of action are in his
possession;
13.2
He confirms that he has insight and continued access to the
documentation;
13.3
Having had regard to all the documentation and records relating to
the transaction
between the parties, he confirms that the Respondents
are indebted to the Applicant;
13.4
Other than as aforesaid, he has set out the claim of the Applicant in
full
suggesting that he has read the summons and particulars upon
which the claim is based.
[14]
I agree that the destruction of the loan agreement in fire is neither
here nor there because
it has been confirmed that its terms and
conditions were captured on the computer system of the Applicant.
Besides, the existence
of the mortgage bond and subsequent
registration of transfer of the property into the names of the
Respondents is evidence of the
existence of a prior contractual
relationship (loan agreement) between the parties without which there
would not have been the
advancement of the amount. Most importantly,
the mortgage bond is not contested anyway.
[15]
Signature of the certificate of balance is not restricted to any
particular individual manager.
On the contrary, it will suffice if it
is signed by any manager of the Applicant and provided of course that
there are no manifest
errors in calculation. Accordingly, it is of no
moment that the certificate of balance has been signed by some other
person other
than Matsepe. In any event Matsepe has already verified
the amount reflected on the certificate in his affidavit in support
of
the summary judgment application. There being no challenge of
errors of calculation of the amount stated in the certificate of
balance, the Respondents’ contention must be rejected for lack
of merit.
[16]
It is correct that previously there were suggestions that a branch
manager of a financial institution
would be the most appropriate
person to depose to an affidavit in support of a summary judgment
application. That has since been
rejected and it is now trite that as
long as a person holds a position that gives him sufficient
responsibility and authority,
he will be recognised or accepted as a
person with personal knowledge. In the circumstances, the contention
is devoid of any merit
and cannot be entertained
[17]
The Respondents have also raised non-compliance with the relevant
provisions of the National
Credit Act No. 25 of 2005 (“the
NCA”) in that they allege that the Applicant has failed to
comply with Sections 129
and 86(10) of the NCA because they did not
receive the section 129 notices. According to them, they chose 8
Kinaboom, West Acres,
Mbombela as their
domicilium
address, and that this address is also where their account statements
were sent.
[18]
It is common cause that the Applicant sent registered mail and that
it served the Section 129
notices via the sheriff at the admitted
domicilium
address being Portion 5
of Erf 2071, Ext 24, West Acres, Mbombela known as 8 Kinaboom Street,
West Acres, Mbombela. The Applicant
has attached proof of dispatch of
the notices by registered mail, the track and trace reports proving
delivery to the relevant
Post Office and that notifications were sent
to the Respondents to the summons. Furthermore, there is also proof
of service of
the Section 129 notices at the same address on 29
November 2018 by the sheriff.
[19]
The question whether the Respondents have chosen to receive
correspondence by post or physical
delivery does not really apply
because the Applicant has effected service of the Section 129 notice
by both methods. That said,
it should be noted that
Kubyana
v Standard Bank of South Africa Ltd
2014 (3) SA 56
(CC)
in the end settled the issue pertaining to notice of default
to a consumer. Tersely, the Constitutional Court held that delivery
would be satisfied, in those instances where the respondent has
chosen service by post, if a notice sent by an applicant has reached
the local post office of a respondent and that the post office
concerned in turn notified the respondent that a registered item
was
awaiting collection. The respondent can rebut receipt by
demonstrating that the notification did not reach him even though
sent to an address designated by him.
[20]
In line with what was held in Kubyana, there being proof that the
local post office, West Acres,
had subsequent to receiving the notice
drawn the attention of the Respondents to its presence, by issuing a
notice to the designated
address, it was for the Respondents
to show that they did not receive it or state why they failed to
collect
the notices after they had been notified by the Post Office.
In the circumstances, the Respondents’ claim that the Applicant
has not observed the provisions of Section 129 of the NCA cannot
succeed. The contention that there has also been no compliance
with
Section 86(10) of the NCA is ignored because it does not find
application under the facts of this matter.
CONCLUSION
[21]
This Court is in the circumstances contented that the claim is
liquid, clear and technically
correct. The Respondents have, on the
other hand, failed to demonstrate that they have a bona fide defence,
which if proved at
the trial would constitute a valid defence. For
those reasons the application ought to succeed.
ORDER
[22]
I make the following order:
1.1 The Respondents are directed
to make Payment of
R511 582.34 to the Applicant
together with
interest on the amount claimed at the rate
of
8.60%
per annum, from
22
November 2018
to date of final payment, such interest
calculated and capitalised monthly in arrears;
1.2 The property described as
Portion [….] Nelspruit is declared specially executable;
1.3 The Registrar is authorized
to issue a Writ of Execution against the immovable property referred
to in paragraph 1.2 above to
give effect to the order granted in
terms of sub-paragraph 1.2 above;
1.4 The reserve price for the
sale of the immovable property is set at R850 000.00; and
1.5 The Respondents are to pay
the costs of the Applicant as at the scale between attorney and
client.
B A
MASHILE
JUDGE
OF THE HIGH COURT OF SOUTH AFRICA
MPUMALANGA
DIVISION, MBOMBELA
Appearances:
Counsel
for the Applicant:
Adv J Van der Merwe
Instructed
by:
TIM DU TOIT & CO INCORPORATED
Counsel
for the Defendants:
Adv Matlata TP
Instructed
by:
MT SILINDA &
ASSOCIATES INCORPORATED
Date
heard:
01 November 2019
Date
of Judgment:
19 November 2019