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[2019] ZAFSHC 148
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Nedbank Limited v Vigne and Another (740/2019) [2019] ZAFSHC 148 (15 August 2019)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Case
number:
740/2019
In
the matter between:
NEDBANK
LIMITED APPLICANT/PLAINTIFF
and
PETRUS
JOHANNES ELOFF VIGNE 1
ST
RESPONDENT/DEFEDANT
MAGDALENA
VIOLET VIGNE 2
ND
RESPONDENT/DEFENDANT
HEARD
ON:
13 JUNE 2019
JUDGMENT
BY:
CHESIWE, J
DELIVERED
ON:
15 AUGUST 2019
[1] This is an
application for summary judgment. The Applicant’s claim against
the Respondents is for payment in the amount
of R225 658.15 (two
hundred and twenty-five thousand six hundred and fifty-eight rand
fifteen cents). The Respondents opposed the
application.
[2]
The relief sought by the Applicant is set out as follow in the
summary
judgement application.
“
1.
Payment of the amount of R225 658.15 plus interests and costs against
the Defendant/Respondents.
2.
Defendants/Respondents to pay interests on the above mentioned amount
at 9.25% as from 01/12/2019 to date of final payment.
3.
That property known as Remaining Extent of Erf […]
Bloemfontein (Extension 39 District Bloemfontein Province, Free
State)
in Extent: 746 (seven hundred and forty-six) square metres,
held by Deed of Transfer 71780/2006, subject to the conditions
therein
contained to be specially executable.
4.
Cost on attorney and client scale plus sheriff’s fee.
5.
Further/alternative relief.”
[3]
The background of this matter is that on or about January 2006, the
Applicant represented by a duly authorised official and
the
Respondents (acting personally) concluded a written Loan
Agreement,
[1]
(the loan
agreement). Pursuant to the loan agreement on the 1 February 2006 the
Respondents were duly represented by a Gerda du
Toit to register in
the Registrar of Deeds a first mortgage bond in favour of the
Applicant to cover as security for any sum of
money which may be
covered or claimable by the Applicant.
[2]
In November 2008 the Applicant and Respondents concluded a
further loan agreement,
[3]
and this was caused to be registered at the Registrar of Deeds as a
second covering mortgage bond, the Respondents were duly
represented
by Jacobus Stephanus.
[4]
On 24 of January 2012, the Respondents entered in a Distressed
Restructure Agreement in respect of the home loan with the
Applicant.
[4]
[5]
The Applicant on the 30 May 2011 addressed a letter,
[5]
to the Respondents which read as follows:
“
Termination
of Credit agreement from Debt Review in terms of section 86
(10) of the National
Credit Act, No 34 2005.We confirm that the debt review process the
below mentioned account(s) is hereby terminated
in terms of section
86(10) of the National Credit Act.In terms of our notice of default
you were given the opportunity to provide
us with proof of payment or
reasons why the credit agreements/s should not be terminated. We have
allowed you a period in excess
of 10 days to respond to our notice
and you failed to do so….”
[6]
The Applicant launched the summary judgement application, which was
filed on 16 April 2019. The Respondents opposed the
mentioned
application and filed their opposing affidavit resisting
summary judgment.
[7]
The issue to be determined is whether the Respondents’
affidavit discloses a
bona fide
defence to the Applicant’s claim and whether the Respondents
have shown that the defence is not merely aimed to delay the
Applicant’s claim.
[8]
The Applicant’s contention is that the Respondents breached the
terms of the loan agreement and that the amount claimed
is due and
payable. The affidavit in support of the summary judgement by
Sindisiwe Fortunate Sizakele Mhlongo,
[6]
stated that: “The Respondents have, according to my opinion, no
bona fide defence and gave notice to defend to matter exclusively
to
delay the matter.”
[9]
The Respondents’ contention in their opposing affidavit
resisting summary judgment raised a number of issues; that the
amount
claimed is incorrect and that there is no arrears that are due and
payable as the Respondents had a life insurance at Nedgroup
life that
covered payments in the event that the Respondents became
disabled. On the 27 October 2011 the 1
st
respondent became disabled due to an accident, whereby Nedgroup Life
made payments to the bond account. The Respondents further
averred that the Applicant’s letter of termination was sent
prior to the Distressed Reconstruction Agreement and thus failed
to
comply with Section 129 and 130 of the national credit act.
[10]
Counsel on behalf of the Applicant in oral argument submitted that
the transaction between the parties was a simple loan contract
that
the Respondents were required to pay. Thus the Respondents
failed to meet their obligation and have breached the loan
contract.
Counsel submitted the Distressed Restructure Agreement was also
breached by the Respondents, and that the Applicant
is therefore
entitled to claim the amount that is due and payable. He
further submitted that the issue of Nedgroup does not
involve the
Applicant as it is a contract between the Respondents and Nedgroup.
Counsel was of the view that the Respondents
may proceed to institute
a claim against Nedgroup. He further confirmed that the
Certificate of Balance
[7]
attached to the papers to be accepted by the court as the correct
amount owed by the Respondents.
[11]
Counsel on behalf of the Respondents in oral submission and the Heads
of Argument submitted that the defences raised by the
Respondents
that the Plaintiff failed to comply with clause 21 of the Distressed
Restructure Agreement; that the Respondents do
not owe the Plaintiff
any arrears as Nedgroup paid an amount of R86 000 towards the
bond; that the particulars of claim of
the Applicant did not reflect
any default in monthly payments as alleged by the Applicant;
including the fact that the Respondents
were placed under debt
review
[8]
which process was
terminated by the Applicant and that this termination was prior to
the Distressed Restructure Agreement as signed
by the parties.
He submitted that the Plaintiff did not comply with
section 129
and
130
of the
National Credit Act 34 of 2005
. He submitted that
all these defences are bona fide and that the Respondents did not
enter an intention to defend in order
to delay the Applicant’s
claim.
[12]
The purpose of summary judgment is to assist a plaintiff where the
defendant who cannot set out a bona fide defence or raise
an issue to
be tried, enters appearance simply to delay judgement.
[13]
An application for summary judgment is governed by the provisions of
Rule 32 of the Uniform Rules of Court. And the requirements
resisting summary judgment have been elucidated by Corbett JA
Maharaj V Barclays National Bank Ltd,
[9]
where he stated the following: “One of the ways in which a
defendant may successfully oppose a claim for summary judgement
is by
satisfying the Court by affidavit that he has a bona fide defence to
the claim. Where the defence is based upon facts,
in the sense
that material facts alleged by the plaintiff in his summons, or
combined summons, are disputed or new facts are alleged
constituting
a defence, the court does not attempt to decide these issues or to
determine whether or not there is a balance of
probabilities in
favour of the one party or the other..”
[14]
In
Fichereingesellschaft
F. Busse & Co Kommandit-Gesellschaft v
African
Frozen Products (Pty) Ltd
,
[10]
Theron J held that:
“
As
was pointed out in
Misid
Investments (Pty) Ltd v Leslie
,
[11]
that the applicant in summary judgment proceedings must comply
strictly with the requirements of the Rules of Court.
”
[15]
In the matter of
Mowschenson
and Mowschenson v Mecantile Acceptance Corporation of SA Ltd
,
[12]
Marais J stated as follows:
“
The
proper approach appears to me to be the one which keeps the important
fact in view that the remedy for summary judgment is an
extraordinary
remedy, and very stringent one, in that it permits a judgment to be
given without trial.”
[16]
In
Maharaj
supra,
[13]
Cobertt
JA (as he then was) said: “All that a Court enquires into: (a)
whether the defendant has fully disclosed the nature
and grounds of
his defence and the material facts upon which it is founded, (b)
whether on the facts so disclosed the defendant
appears to have, as
to either the whole or part of the claim, a defence which is
bona
fide
and good in law. If satisfied on these matters the court must
refuse summary judgment either wholly or in part as the case
may be.”
[17]
The court has an overriding discretion whether on the facts averred
by the Applicant, it should grant summary judgement or
on the basis
raised by the Respondents. Such discretion is unfettered. If the
court has doubt as to whether the Applicant’s
case is
unanswerable at trial such doubt should be exercised in favour of the
Respondents and summary judgement should be denied.
The court can
exercise the discretion and refuse the summary judgement if the
requirements have not been met. Summary judgement
by its nature is a
very drastic remedy. It has the effect of completely denying a
Defendant any opportunity of presenting
his or her case. It
effectively shuts the mouth of the Defendant finally for the
Defendant.
[14]
It is for
this reason that compliance is required from a party who brings such
an application.
[18]
There are factual dispute between the parties. The Applicant is
of the view that the Respondents are in arrears and that
the
Respondents breached the loan agreement between the parties.
The Respondents further raised an issue that the Certificate
of
Balance is incorrect as the outstanding arrears was paid by the
Nedgroup Insurance. Though the Applicant’s contention
is that
the parties in terms of the signed Distressed Restructured Agreement
clause 25, the amount reflected on the Certificate
of Balance would
be proof of the amount which is due and payable. In the matter
if
Wolfaard
v Trytsman and Another,
[15]
Rampai
J held as follow: “It has been held on a number of occasions
that a certificate clause in a written agreement
is designed to
facilitate proof of the amount of liability. Therefore, a
certificate of balance is often merely accepted
by the courts as
evidentiary tool to provide in terms of an agreement by one
contracting party to the other for the purpose of
facilitating proof
of the amount of the borrower’s indebtedness to the lender.”
[19]
The Respondents’ contention that the Applicant send the letter
of termination prior to the Distressed Restructure
Agreement
(the DRA) and thus failed to comply with
sections 129
and
130
of the
National Credit Act (the
NCA) cannot be ignored by the court.
That in itself allowed the Respondents to raise it as a
defence. The Respondents
avers that they were placed under debt
review, which process was terminated by a letters, annexure “G1”
and “G4”,
dated 30 May 2011 and these letters are dated
prior to the Distressed Restructure Agreement. Thus the Applicant did
not comply
with
section 120
and
130
of the NCA. The defences as
raised by the Respondents cannot be ignored and that the court has to
take cognisance of these
defences. The Respondents denied that
their intention to defend the matter is to delay the Applicant’s
claim and that
they do have bona fide defence.
[20]
Section 129(1)(b)
of the NCA prohibits the commencement of legal
proceedings.
Section 130
(3) of the NCA provides that a credit
provider may enforce a credit agreement only where there has been
compliance with
section 129.
Section 130
(4) (b) requires a
court, where there has not been compliance with
section 129
, to
adjourn the matter and makes an order setting out the steps to be
taken in order to ensure compliance by the credit provider.
[21]
The Constitutional Court in
Sebola
& Another v Standard Bank of South Africa
,
[16]
considered that where an action is instituted without prior
compliance with
section 129
of the NCA, the summons is void.
Cameroon J further said:
“
In
my view the notice requirement in
section 129
cannot be understood in
isolation from
section 130.
This emerges from three
considerations. Firstly, it is impossible to establish what a
credit provider is obliged and
permitted to do without reading both
provisions. Thus, while
section 129
(1) (b) appears to prohibit
commencement of legal proceedings altogether legal (“may not
commence”),
section 130
makes it clear that where action is
instituted without prior notice, the action is not void. Far
from it, the proceedings
have life, but a court “must”
adjourn the matter, and make an appropriate order requiring the
credit provider to complete
the specified steps before resuming the
matter. The bar on the proceedings is not absolute, but only
dilatory. The
absence of notice leads to a pause, not to a
nullity”
[22] The Respondent
correctly stated that the letters of termination were dispatched on
the 30 May 2011 and the Distressed Restructure
Agreement was signed
by the parties on the 24 January 2012. Which was indeed prior to the
signing of the Distressed Restructure
Agreement. Counsel on
behalf of the Applicant conceded that the defence raised by the
Respondents that the dates on the letters
of termination was send
prior to the signing of the Distressed Restructure Agreement. The
Respondents further relied on clause
22 of the DRA that stated as
follows:
“
22.1
If the client is in default under this agreement, Nedbank may –
22.1.1
draw the default to the notice of the Client in writing and propose
that the Client refers this Agreement
to a debt
counsellor, alternative dispute resolution agent, consumer court or
ombud with jurisdiction, with the intent that the
parties resolve the
any dispute under this agreement or develop and agree on
a plan to bring the payments under this
Agreement up to date, and
Nedbank may not commence any legal proceedings to enforce this
Agreement before such notice has been
given; or
22.1.2
in circumstances where this Agreement is being reviewed in terms of
Section 86
of the Act, give notice to terminate the review as
contemplated in clause 21.6; provided that the requirements set out
in this
subclause will not apply in circumstances where this
Agreement is subject to a debt restructure order, or to proceedings
in a court that could result in such an order.”
[23]
As correctly stated by the Respondents in the affidavit
resisting summary judgment that the notice of termination
letters were already send to them approximately a year before the
Distressed Restructure Agreement was even signed by all the
parties. Thus in my view the defences raised by the
Respondents are bona fide. Including the fact that they were under
the impression that the Nedgroup Live Insurance will cover the bond
payments.
[24]
While the Respondents need not deal exhaustively with the facts and
the evidence relied upon to substantiate it. They must
at least
disclose a bona fide defence, upon which if based with sufficient
particularity and completeness to enable the court to
decide whether
the affidavit of the Respondents discloses a bona fide defence.
At the same time the Respondents are not expected
to formulate their
opposition to the claim with the prescription that would be required
of a plea.
[25]
In my view, the Respondents have a bona fide defence and court should
not shut the door on the Respondents intention to have
their claim
tested according to the requirements of a summary judgment.
[26]
In the premises, I make the following order;
1.
The application for summary judgment is dismissed.
2.
The Defendants
are granted leave to defend the action.
3.
Costs of the
application shall be in the costs in the cause.
________________
S.
CHESIWE, J
On
behalf of Applicant/Plaintiff: Adv. PC Ploos Van Amstel
Instructed
by: Hill, McHardy & Herbst
BLOEMFONTEIN
On
behalf of Respondents/ Defendants: R Coetzee
Instructed
by: Steenkamp & Jansen
BLOEMFONTEIN
[1]
Loan
Agreement
Annexure
A page 19 – 28 of the Particulars of Claim.
[2]
See
Clause
13 of the Loan Agreement page 26 of the Particulars of Claim.
[3]
Loan
Agreement Annexure C page 35 – 52 of the Particulars of Claim.
[4]
Distressed
Restructure Agreement attached as Annexure A page 62 – 72.
[5]
Annexure
G1 on page 74 of the summary judgement application.
[6]
Affidavit
in support of summary judgment page 6 to 7.
[7]
See
Wolfaard v Trystman and Another (2923/2015)
[2015] ZAFSHC 168
(4
September 2015), Where Rampai J held that: “it has been held
on a number of occasions that a certificate clause in a
written
agreement is designed to facilitate proof of the amount of
liability.”
[8]
Annexure
G1 – G7 attached to the affidavit page 74 to 77.
[9]
1976
(1) SA 418
(A) at 426A-E
[10]
1967
(4) SA 105
( C) at 111 AB.
[11]
1960
(4) SA 473
(W) at page 474.
[12]
1959
(3) 362 (W) at p 366.
[13]
1976
(1) SA 418
(A) at 4268 – C.
[14]
First
Rand Bank Ltd v Beyer 2011 (1) SA 196 (GNP)
[15]
(2923/2015,
[2015] ZAFSHC 168
(4 September 2018.
[16]
2012
(%) SA 142 (CC)