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[2018] ZAGPPHC 709
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Absa Bank Ltd v Mathibela (64774/2013) [2018] ZAGPPHC 709 (26 March 2018)
REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA .
(1)
REPORTABLE
(2)
OF INTEREST TO OTHER
JUDGES
(3)
REVISED.
CASE
NO: 64774/2013
26/3/2018
In
the matter between:
ABSA
BANK
LTD
Plaintiff
and
PEARL
LUCY NOMVULA MATHIBELA
Defendant
JUDGMENT
BRAND,
AJ
Introduction
[1]
This
matter seems like a simple claim on contract, for the payment of an
amount due on a house bond and for an order declaring the
immovable
property in question specially executable. It is, however,
complicated somewhat both by the manner in which it arose
and the
course it has taken since.
Background
[2]
The
dispute between the Plaintiff (Absa Bank Ltd) and the Defendant (Ms
Pearl Mathibela) arises from three mortgage bonds registered
over the
Defendant's property - at the time of registration of the bonds the
Defendant's primary residence and still her chosen
domicilium
citandi et executandi.
[3]
During
2013 the Defendant fell in arrears with the monthly payments on the
three bonds. Invoking a clause of the written mortgage
loan agreement
it had with the Defendant, the Plaintiff issued summons in October of
that year, seeking the following relief:
-
Payment of the amount of R1 083 286.51 plus interest thereon at a
rate of 8.5% from
12 October 2013 to date of payment.
-
An order declaring Portion 17 of Erf 613 Groblersdal Township
specially executable in
favour of the Plaintiff.
[3]
In
short, therefore, the Plaintiff sought payment of the full
outstanding amount on the three bonds, with interest, and the right
to sell the Defendant's property in execution to recoup that payment.
[4]
After
summons was issued, there followed a protracted period during which
the Defendant sought, but failed to obtain clarity on
the amount of
arrears on the basis of which the Plaintiff decided to proceed with
litigation.
[5]
This
confusion lies at the heart of this matter, so that I will briefly
relate it already here. The amount of arrears reflected
in the
summons (the figure that prompted the Plaintiff to issue summons,
that is), Is R56 681.50, reflecting 6.14 months of non-payment
of a
monthly instalment of R9 231.53.
[6]
On
the Defendant's version, since accepted by the Plaintiff, this amount
is incorrect: the Defendant was instead at the time of
issuing of the
summons in arrears only of R16 000.00, representing instalments of
approximately one and a half months (this amount
is confirmed as
correct by the Plaintiff in a recalculation issued in August 2016).
[7]
How
this error came about is instructive. The Defendant was previously an
attorney. In 2012 she decided to do her pupillage during
2013 in Cape
Town. As she would be receiving no fixed income for the duration of
the pupillage, the Defendant applied to and received
from the
Plaintiff a so-called 'holiday period' of six months, from December
2012 or January 2013 to the end of June 2013, during
which she was
only required to pay a reduced monthly instalment on the bonds of R2
576.24. At the time of issuance of summons the
Plaintiff calculated
the arrears without taking account of this 'holiday period' - that
is, erroneously on the basis that the Defendant
had had to pay the
initial instalment of R9 231.53 all along (the existence of the
agreement regarding the holiday period; the
failure of the Plaintiff
to take it into account in calculating arrears:. and the fact that
the resultant purported arrear amount
was incorrect are all by now
admitted by the Plaintiff).
[8]
A
considerable time passed between issuance of summons in 2013 and the
further prosecution of the matter by the Plaintiff. It seems
that
after a protracted period during which ·the Defendant
attempted to get clarity on the amount of arrears and calculation
of
interest, the matter finally proceeded in 2016. After twice being
postponed (once by agreement between the parties; once because
no
judge was available to hear the matter on the allocated date) the
matter landed before me for trial. Here the difficulties did
not end.
Application
for postponement
[9]
Before
me, Mr Wesley for the Plaintiff indicated that he was ready to
proceed with the matter on the papers and would call no witness.
Mr
Mlisana, acting
pro amico
for
the Defendant, informed me that the Defendant had planned to testify
on her own behalf at trial, on two issues: to show that
the bonded
property was her family home and that, although she was herself no
longer primarily resident there, it qualified her
for protection
under section 26(3) of the Constitution as interpreted and applied in
the matter of
Gundwana v Steko
Development
CC
and
Others ( Gundwana );
[1]
and to place information before me
as to the incorrectly calculated arrears and her efforts over time to
persuade the Plaintiff
of its error.
[10]
Unhappily, however, the Defendant was
not present at court, but in Cape Town, so that she would be unable
to testify as planned.
This prompted Mr Mlisana to bring an
application, from the bar, for postponement of the trial. This
application was opposed.
[11]
I dismissed the application for a
postponement. My reason for doing so was simply because the Defendant
could offer no good faith
explanation for her absence. Mr Wesley
submitted and was able to place the necessary documentary evidence to
this effect before
me - that the Defendant had timeously and properly
been informed of the date of trial through her attorneys of record.
Indeed,
this was confirmed by Mr Mlisana in the explanation he sought
to offer from the bar for the Defendant's absence - that she had
erroneously thought that the date provided to her was the same date
but in the next month.
[12]
Even were I able to consider that
explanation (which, it being offered by Mr Mlisana only from the bar,
of course I could not),
it would not have assisted the Defendant. As
correctly pointed out by Mr Wesley, the date on which the Defendant
on this version
would have thought the trial was scheduled, was a
Saturday. A mistake of this nature on the side of the Defendant,
herself an officer
of this court, after having been informed of the
trial date by her attorneys, would not have constituted an acceptable
explanation
of her absence.
[13]
Having so dismissed the application for
postponement, I instructed the two counsel to prepare and submit
written heads of argument
and directed that I would decide the matter
on the papers.
The
Plaintiff's claim
[14]
Mr Wesley presented the Plaintiff s case
in simple and seemingly unassailable terms. In short, as if arguing
an application for
summary judgment, he submitted that the Defendant
had no defence in law against the claim:
-
there
was a valid contract between the Plaintiff and Defendant, which in
part determined that, should the Defendant fall into arrears
with her
monthly payments on the bond, the Plaintiff may unilaterally cancel
the contract and claim payment in full of any amount
outstanding on
the bonds;
-
the
Defendant had fallen in arrears and the Plaintiff, invoking the
relevant clause of the contract, cancelled the contract;
-
the
Plaintiff is now entitled to claim the outstanding amount from the
Defendant, and to recover that amount through sale in execution
of
the bonded property.
[15]
To this, Mr Mlisana for the Defendant
had a two-fold response. First, he relied on the well-known judgment
of the Constitutional
Court in the
Gundwana
matter (above) to urge this court to
consider in particular the Plaintiff's claim for sale in execution of
the bonded property in
light of considerations of justice and equity.
Second, seemingly in reliance on the common law exception of
de
errore calculi
in combination with
the purported inordinate delay by the 'Plaintiff in prosecuting its
claim, he urged this court to consider the
fact that the Plaintiff
would in all probability not have succeeded with its claim at the
outset, had the correct amount of arrears
been determined from the
start.
[16]
The major difficulty facing the
Defendant with this two-fold defence is that the latter depends on
the former. In order for this
court at all to take account of the
issues of justice and equity that the Defendant seeks to raise in the
second leg of its defence,
it must be established that
Gundwana
and its progeny applies. That is, it
must first be established that the bonded property is indeed a home.
[17]
And here lies the rub: there is nothing
on the papers, whether in the Plaintiff's particulars of claim or the
Defendant's plea and
the reams of supporting documentation to
indicate whether or not the bonded property was indeed the
Defendant's home; and the absence
of the Defendant at trial deprived
this court of the benefit of her oral testimony, tested under cross
examination on this issue.
[18] This,
Mr Wesley submitted, means that I cannot but hold that
Gundwana
does not apply . I cannot agree, for three reasons.
[19]
First, the Constitutional Court in
Gundwana
was clear that
it is the duty of a court to determine
mero
motu
whether
indeed a bonded property was a home; and if so, then of its own
accord also to enquire into the relevant circumstances to
determine
whether or not it may be declared specially executable.
[2]
I am not excused of this duty simply because neither of the parties
have placed information to that effect before me.
[20] Second,
in
Standard Bank
of South Africa Ltd v Natha
[3]
my brother
Legodi, then of this Division, held that where a plaintiff seeking an
order declaring a bonded property specially executable
seeks to
escape application of
Gundwana,
it must in its
particulars of claim make a positive averment that the property in
question is not a home:
[10].
.
...
I think it is
important to make such an averment if
a
party wishes to
have immovable property to be declared specially executable or an
order of execution against such
a
property.
Reference to section 26(1) of the Constitution
...
in my view
is
not sufficient.
[21]
The
Plaintiff in this matter has of course made no such positive averment
- the only reference to the issue in its particulars of
claim is to
be found in paragraph 15.1. There, in much the same terms as were
found insufficient in
Natha
(above), it
simply draws the Defendant’s attention to section 26(1) of the
Constitution and states that, should the Defendant
claim that an
order for special execution against the bonded property will infringe
that right, it must place information to that
effect before the
court.
[22]
Third,
I must approach this matter, as any other matter involving
constitutional rights, with a generous approach to law and facts
'suitable to give to individuals the full measure of the fundamental
right[... ]' in question.
[4]
That is, to the extent that there is doubt here, the benefit of that
doubt should go to the Defendant.
[23]
In
this light I am satisfied that, for purposes at least of considering
the second leg of the Defendant's defence as set out above,
the
bonded property is the Defendant's family home, where her parents
still live and to which she periodically returns.
[24]
From
the papers it is clear that, prior to the Defendant leaving for Cape
Town to do her pupillage, the bonded property was her
home in this
sense. The existence of the 'holiday period' agreement and the
reasons for which it was concluded between Plaintiff
and Defendant
(all of which is common cause between the parties) indicate to me
that the bonded property was at the very least
at the time that
summons was issued, but is most probably still today, her home in
that sense.
[25]
Accordingly,
I hold that
Gundwana
indeed
applies to this matter, so that I must consider the Plaintiff's
claim, and in particular is claim for an order declaring
the bonded
property specially executable, in light of all relevant circumstances
to determine whether granting the relief that
the Plaintiff seeks,
would be just and equitable.
[26]
In
this consideration again I am hampered by the failure of the
Plaintiff and, to a lesser extent, the Defendant to place information
at my disposal. Neither party has given any direct information about
the impact, for instance, that granting the relief sought
would have
on the Defendant and her family in her constitutional housing rights.
Very little has been placed before me also with
respect to the actual
prejudice that the Plaintiff would suffer would such relief not be
granted.
[28]
This
is where the second leg of the Defendant's defence comes into focus
and, as it happens, to my aid.
[29]
Mr
Mlisana in his heads of argument and indeed in his submissions during
trial urged me to take into account the error in calculation
of
arrears at the time of issuing summons, in my consideration of the
justice and equity of the relief sought. He did not do so
properly to
invoke the exception of
de errore
calculi:
to except to the Plaintiffs
claim on grounds that it had incorrectly calculated the debt owed it
(this, incidentally puts paid to
Mr Wesley's objection that the
Defendant had contracted out of reliance on this exception).
[30]
Instead,
Mr Mlisana simply urged me to consider that, had the arrears been
calculated correctly, given the relatively trifling amount
of real
arrears at the time, the Plaintiff would in all probability never
have issued summons, and even had it, would most probably
not have
succeeded at an ensuing trial.
[31]
To
this, he continued, must be added that the Plaintiff has taken an
inordinate time eventually to prosecute its claim
to
trial, electing not to utilise
summary judgment procedure_ at the outset and frustrating attempts of
the Defendant to determine
the correct amount of arrears and ensuing
interest before eventually conceding that the original amount of
arrears on the basis
of which summons was issued was wrong. This
means to him that any growth in the Defendant's debt to the Plaintiff
in the interim,
is not the fault of the Defendant.
[32]
In
light of these circumstances, he concluded, it would not be just and
equitable for this court to grant the Plaintiff the relief
it seeks.
[33]
I
agree with Mr Mlisana. In terms of the practice directive currently
in force in this Division, applications for summary judgment
where
the arrears on the basis of which summons were issued are low and for
a short time are routinely postponed
sine
die
or for a lengthy specified
period in order to allow the Plaintiff to recoup arrears through
engagement with the Defendant, rather
than through litigation that
leads to the loss of a home. If the correct amount of arrears were
reflected from the outset, the
Plaintiff would have had very little
chance of succeeding in a summary judgment application, had one been
brought. It is for this
reason that it is highly unlikely that the
Plaintiff would have issued summons originally had it known that the
arrears at the
time was only R16 000 and for approximately one and a
half months.
[34]
In addition, with the almost four years
that have ensued since summons was issued to the date of trial, there
was ample opportunity
available to the Plaintiff, once it had become
aware of its error, to attempt to resolve the matter through
negotiation rather
than proceeding to trial. That the Defendant was
open to such resolution is indicated by the fact that she continued
to make payments
on the bonds to as late as May of 2017, when she
made a payment of R60 000.00 (I was informed of this by Mr Mlisana
from the bar,
with Mr Wesley confirming the fact and amount of
payment).
[35]
In short, this is exactly the kind of
'disproportionality between the means used ... to exact payment of
... [a] debt, compared
to other available means to attain the same
purpose' that the Constitutional Court referred to with respect to
the execution process
in
Jaftha v
Schoeman and Others; Van Rooyen v Stoltz and Others.
[5]
[36] Accordingly,
I hold that in light of all the relevant circumstances, but in
particular the relatively
low amount of arrears on the basis of which
summons was initially issued ; the long time it took for this matter
to reach trial;
and the apparent lack of effort from the Plaintiff to
resolve this matter through any other means than a trial leading to
sale
of the bonded property in execution, the Plaintiff is not
entitled to the relief it seeks.
[37] I
would think it eminently possible for the Plaintiff still at this
late stage to come to an agreement
through which it can recoup its
arrears, while the Defendant retains her family home and would urge
it to attempt to do so.
[38] This
conclusion and my resultant judgment in this matter, of course, does
nothing to prevent the Plaintiff,
should it be unable to reach such a
solution through agreement, approaching this court again for relief.
[39] The
Plaintiff not having succeeded in its claim, it is unnecessary for me
to deal with the question
whether I should regard myself bound by the
agreement between the parties, embodied in the bond agreement , that
the Defendant
shall be responsible for payment of costs of litigation
ensuing from that agreement, on an attorney-client scale. Costs here
simply
follow the result.
[40] In
the result, I order as follows:
The
Plaintiff's claim is dismissed, with costs.
JFD
Brand
Acting
Judge of the High Court
Appearances:
For
the Plaintiff:
Mr Wesley
Instructed Snyman de Jager Inc
For
the Defendant: :
Mr Mlisana
Pro amico
[1]
2011 (3)
SA 608
(CC).
[2]
Gundwana
(above) para [43].
[3]
(12133/2011) [2012] ZAGPPHC 103 (13 June 2012).
[4]
Minister of Home Affairs v Fisher
[1980] AC 319
at 328H, as
cited with approval in
S v Zuma and Others
[1995] ZACC 1
;
1995 (2) SA 642
(CC) para [14] .
[5]
[2004] ZACC 25
;
2005 (2) SA 140
(CC)