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[2019] ZAFSHC 207
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Land and Agricultural Development Bank of South Africa v Jonker and Another (5870/2018) [2019] ZAFSHC 207 (20 September 2019)
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IN THE HIGH COURT
OF SOUTH AFRICA,
FREE STATE
DIVISION, BLOEMFONTEIN
Case
No.: 5870/2018
In
the matter between:
THE
LAND AND AGRICULTURAL
DEVELOPMENT
BANK OF SOUTH AFRICA
Applicant
and
JACO
JONKER
1
st
Respondent
(ID
NO: […..]
ESPERANZA
JONKER
2
nd
Respondent
(ID
NO: [….])
JUDGMENT:
MOENG,
AJ
HEARD
ON:
6 SEPTEMBER 2019
DELIVERED
ON:
20 SEPTEMBER 2019
[1]
This is an application for leave to appeal against the whole of my
judgment delivered on 20 June 2019.
Nine grounds of appeal were
raised. I do not deem it necessary to repeat them. The essence
thereof is that I erred in the findings
I made regarding the
provisions of the National Credit Act and the decision to declare the
properties specially executable. Issue
is also taken with the
purported discrepancies with regard to the arrear amounts and
interests that were charged. I will refer
to the parties as in the
previous application in which judgment was sought.
[2]
I pause to note that the respondents only sought leave to appeal on
case 5870/2018 and not case 109/2019.
Mr Du Plessis indicated that
this was an oversight on his part. It is common cause that the
applications in both case 5870/2018
and in case 109/2019 was dealt
with in the same judgment, as the issues and the defences that were
raised, were the same. The ruling
whether or not leave should be
granted in case 5870/2018 will logically affect the judgment in case
109/2019.
[3] On
the strength of the foregoing grounds of appeal, the respondents
submit that in the circumstances, there
is a reasonable prospect of
success and that another court may come to a different conclusion.
The application is opposed. The
applicant contends that none of the
grounds of appeal have any substance and that another court would not
reach a different finding.
[4]
Section 17(1) of the Superior Court Act provides that leave to appeal
may only be granted where the
judge or judges are of the opinion that
the appeal would have reasonable prospects of success. In a similar
application, Daffue
J, referring to
Acting National Director of
Public Prosecutions and Others v Democratic Alliance
(19577/09)[2016] ZAGPPHC, held in
Land and Agricultural
Development Bank of SA v Jandrea Boerdery CC and Others
case
3127/2018 that the bar for granting leave to appeal has now been
raised. The test is not whether there are reasonable prospects
of
success, but rather whether another court would come to a different
conclusion. The fact that the word ‘”would”
is
used, was according to Daffue J an indication that a measure of
certainty, that another court will differ from the court whose
judgment is appealed against, is required.
[5]
The issues raised in this application relate to whether I erred in
concluding that the loan agreement
that Land Bank relied on, in
obtaining judgment, amounted to a restructuring of the long term loan
agreement that was previously
entered into and not a novation
thereof. It was also submitted that I erred in dismissing the
defenses pertaining to the provisions
of section 81, 90, 110, 111and
129 of the NCA. It was lastly contended that there were various
discrepancies regarding the amounts
claimed and interests levied.
[6]
The issues regarding novation were fully canvassed in my judgment.
The arguments advanced in this application
are in essence a repeat of
what was submitted during the course of the hearing wherein judgment
was sought. I was satisfied that
the respondents did not prove that
the agreement concluded in October 2014 amounted to a novation of the
agreement concluded in
January 2014. All indications were that the
first respondent applied for the restructuring of the long term loan
agreement as he
could not fulfill his obligations. The agreement was
restructured subject to the condition that no further extensions
would be
granted and that the arrear portion of the long term loan
agreement be transferred to a medium term loan. I refer to the
reasons
advanced in paragraph 22 to 28 of my judgment. Another court
would, in my view, not come to a different conclusion on this
ground.
[7]
The respondents also took issue with the locus standi of Land Bank to
have launched the application.
This issue was decisively dealt with
in
Land and Agricultural Development Bank of SA v
Jandrea Boerdery CC and Others
case 3127/2018. The
applicants’ petition to the SCA was dismissed. Their resultant
application for special leave to appeal
was also refused by the
President of the SCA.
[8]
The applicants
in casu
are represented by the same firm that
represented Jandrea Boerdery. Indications from the heads of argument
are that the applicants
intend to approach the Constitutional Court
for relief in the Jandrea Boerdery case. What however remain is that
one judge from
this division and three judges from the SCA decisively
dealt with this issue. No court will therefore in my view come to a
different
conclusion.
[9]
Much was debated by Mr Du Plessis about the interpretation of section
110 and 111 of the NCA. Credit
providers are obliged by the
provisions of section 110 to furnish consumers with statements of
account. Statements were provided
upon request but these were
not
to the satisfaction of the respondents
.
The respondents submitted that these statements did not comply with
section 110.
[10]
The Act does not provide any remedy to a consumer who is dissatisfied
with the form and content of statements that
are provided by a credit
provider. As was indicated in
De
Bruin v First Rand Bank Ltd t/a Wesbank
(42493/2015) [2017] ZAGPJHC 132 (5 May 2017), this is a
lacuna
in the NCA that cannot be addressed by inventive interpretation.
The
respondents’ intention to approach the Tribunal, in terms of
section 134 to address the applicant’s failure to provide
them
with proper statements, never came to fruition.
A
decision to approach the Tribunal would however not affect or suspend
enforcement proceedings.
[11] Section
111 affords a consumer the right to dispute all or part of any
particular credit or debit entered under
a credit agreement. Section
111(2)(b) prohibits a credit provider from beginning with enforcement
proceedings on the basis of a
default arising from the disputed debit
or credit entry. The respondents sought to dispute all the entries
that were contained
in the statements that were supplied.
[12]
This dispute followed the delivery of the section 129 notice on
16
and 17 October 2018. It is common cause that the respondents
issued the section 111 notice
in response to the section 129 notice. The section 111 notice was
admittedly
only issued on
26
October 2018 after the section 129 notice was already issued.
It is
trite that a section 129 notice is the first step in enforcing a
credit agreement. (See
Nedbank
Ltd and Others v National Credit Regulator and Another
2011(3) SA 581(SCA) at para 14). The respondents were therefore
not entitled to rely on the prohibition against enforcement
proceedings as provided for in section 111(2)(b) as the proceedings
had already commenced. I again refer to the reasons I advanced
in
paragraph 29 to 38 of my judgment.
[13] The
respondents contend that the applicant failed to convey the correct
overdue amounts in the section 129 notice
and failed to address such
notice to the second respondent. The respondents reliance on
Amardien
and Others v Registrar of Deeds and Others
2019(3) SA 341
(CC), is without merit. The applicant in the present case provided
the respondents with overdue amounts in the section
129 notice. The
purpose of providing the overdue amounts is to allow the consumer to
utilise the remedies afforded to him/her in
terms of the NCA. The
respondents, in annexure EDP1 of the answering affidavit, had no
difficulty in calculating what the arrear
amounts are in their view.
[14] I refer
to paragraphs 44 to 45 of my judgment with regard to the service of
the section 129 notices on the second
respondent. I am satisfied that
another court would likewise not reach a different conclusion on this
ground. Of relevance is the
decision in
Motor
Finance Corporation v Herbert
(case
16098/2011 an unreported judgment in the Western Cape)
,
with regard to this ground.
[15] I do not
deem it necessary to deal with the grounds of the alleged reckless
credit and the invalid clauses in the
agreements. There is in my view
simply no merit to conclude that another court would reach a
different finding. Similarly, no grounds
were advanced why the
immovable properties should not have been declared specially
executable.
[16] I will
in the result dismiss the application for leave to appeal with costs.
L.B.J. MOENG, AJ
On
behalf of applicant: Adv. FH Terblanche SC and AJ
Wessels
Instructed
by:
Mcintyre &
Van Der Post
BLOEMFONTEIN
On
behalf of the respondents: Mr. HSL Du Plessis
Instructed
by:
Blair
Attorneys
BLOEMFONTEIN