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[2018] ZAGPPHC 571
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Standard Bank of South Africa Ltd v Oosterlaak and Another (21875/2014) [2018] ZAGPPHC 571 (28 March 2018)
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REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
(1)
NOT
REPORTABLE
(2)
NOT OF
INTEREST TO OTHER JUDGES
(3)
REVISED.
CASE
NO: 21875/2014
28/3/2018
In
the matter between:
THE
STANDARD BANK OF SOUTH AFRICA LTD
APPLICANT
and
NEIL
ANDREW
OOSTERLAAK
1st RESPONDENT
(IDENTITY NUMBER:[….])
CHARMAINE
OOSTERLAAK
2
nd
RESPONDENT
(IDENTITY NUMBER: [….]
JUDGMENT
AC
BASSON, J
[1]
This
matter emanates from an action instituted by the applicant (Standard
Bank of South Africa Ltd) against the two respondents
(Neil Andrew
Oosterlaak and Charmaine Oosterlaak). The action was opposed and was
enrolled for trail. Prior to the hearing date.
the said action was
settled when the parties concluded a settlement agreement on 7 March
2017.
[2]
In
terms of the settlement agreement, the defendants (the respondents
before court) by their signature withdrew their defence to
the action
and waived all defences raised in respect thereof.
[3]
In
terms of the settlement agreement, the respondents were required to
eradicate the arrears in respect of their home loan account
as per
the terms of the settlement agreement within a period of six months
whilst simultaneously continue to pay the normal instalments
contemplated in terms of the loan agreement.
[4]
According
to the applicant, the respondent did not comply with the terms of the
settlement agreement in that the arrears were not
eradicated by the
end of September 2016. During October 2016 the respondents were
granted some lenience to eradicate the arrears
by 7 December 2016.
According to the respondents this also did not happen.
[5]
On
13 January 2017 a notice of breach was dispatched to the respondents
as per the settlement agreement. In this letter it is,
inter
alia,
stated that an indulgence had
been granted to have the arrears settled by 7 December 2016. It is
further recorded that the respondents
were currently in arrears in
the amount of R153 257.90 and that they have not been making any
payments since 28 October 2016. The
respondents were advised that if
payment is not made the applicant would proceed with default
judgment.
[6]
The
respondents did not eradicate the arrears within the time period and
the applicant thereafter proceeded with an application
for default
judgment seeking an order that judgment be entered against the
respondents for the outstanding indebtedness and for
an order in
terms whereof the immovable property relevant to the legal nexus
between the parties be declared specifically executable.
[7]
The
matter was opposed. On 2 May 2017 the court made an order in terms of
which the application for default judgment was to serve
as a notice
of motion and that the affidavit filed in support of the application
for default judgment would serve as the founding
affidavit. The
defendants (the present respondents) were directed to file an
answering affidavit.
[8]
In
the opposing affidavit, the respondents dispute that there was a
breach of the agreement and further raise the defence that there
was
complete compliance with the terms of the settlement agreement. The
respondents further submitted that due to the full payment
of all
indebtedness in terms of the settlement agreement, it was incumbent
upon the applicant to again comply with the provisions
of section 129
of the National Credit Act
[1]
("NCA") and institute action afresh.
Was there compliance with the
settlement agreement?
[9]
If
regard is had to the settlement agreement, it is clear that it was
aimed at affording the respondents an opportunity to reinstate
the
loan agreement by settling the arrears which have accrued as at the
date of undersigning the settlement agreement whilst continuing
to
serve the monthly instalments due.
[10] In
terms of the settlement agreement, the respondents were obliged to
pay the normal instalments contemplated
in the loan agreement (in the
amount of R31 505.53). Such payments would strictly be made on or
before close of business on 7 April
2016 and thereafter strictly on
the 7th day of each month. In addition thereto, and on the 7th of
each month, the respondents would
pay an additional amount of R167
263.74 per month for a period of 6 months until the arrears have been
settled in full. The respondents
were required to strictly comply
with these obligations in respect of payment. For the leniency period
which the settlement agreement
allowed for, same would imply. In
other words, an amount of R198 769.27 was payable monthly. Should
this amounts have been paid,
at the end of September 2016, the
arrears on the account would have been reduced to R0.00 and the
respondents would thereafter
have been required to pay their normal
monthly instalments as per the loan agreement. In terms of the
settlement agreement, the
respondents would be notified in writing of
any breach of the terms of the settlement agreement. Ten days after
having formally
informed the respondents of the said breach, the
applicant would be entitled to apply for default judgment for the
outstanding
amount and the relief would include execution of the
immovable property. A certificate of balance would constitute prima
facie
evidence of the indebtedness and any other fact relating to
such indebtedness.
[11]
The
respondents made the following payments:
(i)
The
required payments in the correct amount were made during April 2016
and May 2016.
(ii)
In
June 2016 a payment of R190 000.00 was made.
(iii)
In
July 2016 the respondents were ahead in their payments payable in the
amount of R2461.46.
(iv)
In
August 2016 a short payment was made in the amount of R90 000.00.
(v)
In
September 2016 a further short payment was made in the amount of R140
000.00.
[12]
At
the end of September 2016 an amount of R1 224 338.88 was payable of
which only R 1027 538.54 was made. In so far as the settlement
agreement provided that the arrears had to be settled by the end of
September 2016, there clearly was a breach.
[13]
In
October 2016 the respondents made a further belated payment. At the
end of October, a further amount was paid but at the end
of October
2016 the account remained in arrears in the amount of R58 414.73.
[14]
The
respondents were granted an indulgence and were afforded an
opportunity to eradicate the arrears up until January 2017 when
the
breach notice was issued. At that time an amount of R1 382 410.83 was
payable in respect of the arrears whereas an amount of
R1 197 538.54
was made. The account as at January 2017 therefore remained in
arrears in the amount of R184 872.29.
[15]
In
light of the aforegoing, the applicant submitted that the arrears
have therefore not been settled as per the settlement agreement
and
in the premises, the respondent did not comply with the settlement
agreement entitling the applicant to proceed with this application.
I
am in agreement with the applicant in light of what is provided for
in the settlement agreement (especially in light of its purpose
to
allow for the respondents to eradicate the arrears within a period of
six months), that the respondents have breached the settlement
agreement entitling the applicants to proceed on the basis provided
for in the settlement agreement.
Section 129 notice in terms of
the NCA
[16]
The
respondents have also contended that the applicant should have
instituted litigious steps afresh. I do not agree. In general,
a
consumer will statutorily be entitled in terms of section 129(3) of
the NCA to reinstate a credit agreement in terms of which
he/she had
defaulted provided that all amounts that are overdue were paid. The
effect of such reinstatements that the consumer
is again placed in
the position to continue with the standard terms of the credit
agreement originally concluded. Section 129(3)
reads as follows:
"129. Required procedures before debt
enforcement
(3) Subject to
subsection (4),
a
consumer may at any time before the credit provider has cancelled the
agreement, remedy a default in such credit agreement by
paying to the
credit provider all amounts that are overdue, together with the
credit provider's prescribed default administration
charges and
reasonable costs of enforcing the agreement up to the time the
default was remedied."
The Constitutional Court in
Nkata
v Firstrand Bank Ltd
[2]
explains:
"[105] The reinstatement
occurs by operation of law. This is so because the wording of the
provision is clear that the consumer's
payment in the prescribed
manner is sufficient to trigger reinstatement. She
may
reinstate by paying to the credit provider all arrears that are due,
permissible default charges and legal costs.
[3]
Reading in a
requirement of prior notice to the credit provider, as well as a
reinstatement that does not occur automatically against
due payment,
would unduly limit the value to the consumer of the remedy of
reinstatement. It would unduly diminish the usefulness
of the relief
of reinstatement if the consumer were saddled with procedural
requirements most consumers are likely to falter on."
[17] In
terms of the settlement agreement, all arrears had to be eradicated
within a period of
6 months (as extended). If that had been done, the
credit agreement would have been reinstated. This did not happen. The
applicant
was therefore entitled to enrol the matter for default
judgment for the full indebtedness amount. It was, in light of these
circumstances,
not necessary to have re-issued the notices as
contemplated in terms of section 129 of the NCA.
Rule
26 relief
[18]
In
terms of the settlement agreement, the respondent acknowledged that
the property may be sold in execution in the event of non-compliance
with the settlement agreement. The respondents claim that execution
must be levied against movable property first before the immovable
property may be declared specifically executable.
[19]
If
regard is had to the decision in
Firstrand
Bank Ltd v Folscher and Another And Similar Matters
[4]
it is clear that a court has a
discretion to declare immovable property specifically executable.
Although the issue of whether movable
property account, it is not an
absolute requirement. It is furthermore for the debtor to place any
factor befo.re the court to
assist the court in exercising a
discretion.
[20]
In
the present matter, the respondents have not placed facts before the
court that could persuade a court to decide against granting
an order
for the execution of the immovable property. It is also relevant to
point out that as at July 2017, the arrears on the
account was R 342
944.24 which constitutes 10.7 months in arrears. In terms of the
updated certificate of balance dated 5 March
2018, the amount due,
owing and payable is the sum of R 5 067 694.63. This is substantial.
I can find no reason not to grant an
order that the immovable
property be declare specially executable.
[21]
Lastly,
the applicant was also criticized for not having attached a
certificate of balance
" signed
by any manager of the plaintiff whose appointment it shall not be
necessary to prove...".
[22]
In
terms of the settlement agreement, it was agreed that a certificate
of balance would constitute
prima
facie
proof of the indebtedness
amount. In this regard the court in
F
&
I
Advisors (Edms) Bpk en 'n ander v Eerste Nasionale Bank Van Suidelike
Afrika Bpk
[5]
the court held that where a
certificate of balance is utilized, it is not necessary for a
plaintiff to deconstruct the manner in
which the amount was
constituted unless the amount is placed in disputed upon a tenable
basis.
[23]
In the event the following order is
made.
1.
Payment
in the sum of R5 067 694.63.
2.
Interest
thereon at the rate of 8.000% per annum on the amount of R3 800
000.00 and charged at a rate of 8.450% per annum on
the balance of
the amount owing above R3 800 000.00, interest calculated daily and
compounded monthly in arrear from 5 March 2018
to date of final
payment, both dates inclusive.
3.
Payment
of the monthly insurance premiums of R1 778.62 per month from 5 March
2018, for the full period the applicant makes payments
of such
monthly insurance premiums in relation to the mortgaged property
mentioned in Annexure "81'', "B2"and "83".
4.
Costs
of suit to be taxed on a scale as between attorney and client.
5.
ERF [….]
REGISTRATION DIVISION J.R
PROVINCE OF GAUTENG
MEASURING 3886 (THREE THOUSAND
EIGHT HUNDRED AND EIGHTY-SIX) SQUARE METERS
HELD BY DEED OF TRANSFER
T87132/2003
SUBJECT TO THE CONDITIONS THEREIN
CONTAINED
Also known as: [….]
is declared specially executable.
6.
The
Registrar is authorised and directed to issue a writ of execution
against the hypothecated property above in accordance with
the terms
of this judgment.
JUDGE AC BASSON
JUDGE OF THE HIGH COURT
[1]
Act 24 of 2005.
[2]
2016 (4) SA 257 (CC).
[3]
My emphasis.
[4]
2011 (4) SA 314 (GNP).
[5]
[1998] ZASCA 65
;
1999 (1) SA 515
(SCA).