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[2017] ZAGPPHC 19
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Standard Bank of SA Ltd v Marais and Another (24710:2017) [2017] ZAGPPHC 19 (1 February 2017)
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 NORTH GAUTENG HIGH COURT, PRETORIA
[REPUBLIC
OF SOUTH AFRICA)
CASE
NUMBER: 24710: 2017
REPORTABLE:
NO
OF
INTEREST TO OTHER JUDGES: NO
REVISED.
1/2/2017
In the matter between:
STANDARD
BANK OF SA
LTD PLAINTIFF
And
DOUW
GEBRAND WESSEL
MARAIS FIRST
DEFENDANT
(ID
NO.: …)
DENESE
MARAIS SECOND
DEFENDANT
(ID
NO.: …)
JUDGMENT
MAVUNDLA J.
[1]
This is an opposed application for summary judgment against the
defendants, for:
1.1 payment in the amount
of R1 3 12 5 96. 35;
1.2 interest at the rate
of 7.55% per annum, calculated from 5 February 2015 to date of
payment.
1.3 An order declaring
Portion 1of Erf [...] Montana Park Extension 12,
Registration
Division
J.R, Province of Gauteng, measuring 1029 square metres,
Held by Deed of Transfer T93466 /2004 (subject to the conditions
therein
Contained) specially executable,
1.4 An order authorising
the Plaintiff to execute against the said property as envisaged in
Rule 46(1)(a)(ii) of the Supreme Court
Rules;
1.5 An order authorising
the sheriff to execute the writ of execution;
1.6 An order for costs on
attorney and client scale.
[2]
The plaintiff's claim arises from three written agreements concluded
in 2004, 2006, and 2008, respectively, in terms of which
monies were
lent and advanced to the defendants. The aforesaid loan agreements
were secured by three separate mortgage bond agreements.
[3]
In terms of the three separate loan agreements the cumulative
principal debt amounted to R800 000. 00; R41000. 00 and R25 000.
00
respectively. It is common cause that the current monthly instalments
payable was an amount of R12 342. 97. It is also common
cause that as
at 5 February 2015, the defendants were in arrears in the amount of
R80 442. 82, with an outstanding amount of R1
312 596. 35.
[4]
During the course of 2007 up until 2009, the plaintiff ceded all
rights, title and interests in terms of the abovementioned
mortgage
bonds to Blue Granite Investments 9Pty) Ltd which cession was duly
registered by the Registrar of Deeds.
[5]
It is not in dispute that the plaintiff com plied with the provisions
of the National Credit Act and more specifically section
129 thereof
in that a notice dated 5 February 2015 was sent to the defendants at
the chosen
domicilium citandi et executandi
which was received
at the correct post office.
[6]
The defendants in opposing the summary judgment application:
6.1 deny that they
concluded the first loan agreement du ring 2004 as alleged by the
plaintiff;
6.2 further contend that
the plaintiff neglected to indicate if the cession agreements
referred to in the particulars of claim were
in writing or oral and
furthermore if in writing, neglected to attach same to the
particulars of claim;
6.3 the amount claimed in
the particulars of claim does not accord with what is stated in the
certificate of balance and that the
certificate of balance only
refers to one bond;
6.4 the deponent to the
affidavit in support of summary judgment did not attach a resolution
to reflect authorisation to depose
to the affidavit.
[7]
It is trite that in summary judgment applications the Court need not
decide any balance of probabilities or determine the likelihood
of
the deponent's allegations being true or false. All what the Court
needs to concern itself with at this stage is whether the
respondent
has in his affidavit sufficiently set out facts which, if proven at
the trial, will constitute an answer to the plaintiffs
claim. If the
Court is satisfied that the respondent has placed sufficient facts
which show that the applicant's case is not unassailable,
then it
must dismiss the summary judgment application and grant leave
;
to defend
;
vide Marsh and Another v Standard Bank of SA LTD;
[1]
Shepstone
v Shepstone
[2]
.
The
defendants' affidavit should set out facts and particulars disclosing
that he has a
bona
fide
defence.
The defence must go to the merits of the application and not consist
merely of an attack on the language of the summons
and the
plaintiff’s affidavit.
[8]
The defendants' contention that the deponent to the summary judgment
application has not attached a resolution authorising him
to depose
to the affidavit is of no consequence, regard being had to the fact
that the Supreme Court held in the matter of
Ganes
and Another v Telecom Namibia Ltd
[3]
that it
is irrelevant whether the deponent to an affidavit has been
authorised to depose thereto. It is the institution of the
proceedings and the prosecution thereof which must be authorized.
[9]
In casu the deponent to the applicant's summary judgment applications
has averred that she is a bank manager in the applicant's
Home loan
Legal Personal and Business Braking Credit division of the applicant.
She has been duly authorised by the applicant to
institute the
proceedings and to depose to the affidavit. Through her position she
has access to the records in possession of the
applicant pertaining
to this matter, which record she has perfused and acquitted herself
therewith, and therefore the facts fall
within her personal
knowledge. She can positively verify the facts and the cause of the
action set out in the particulars of claim
and verify the amount as
set out in the certificate of balance and in her onion there is no
bona fide
defence. In the circumstances I am of the view that
the criticism of the respondents regarding the authority of the
deponent to
the applicant's affidavit.
[10]
In the matter of
FirstRand
Bank v Beyer
[4]
it was
held that:" [9] An analysis and consideration of rule 32(2)
clearly show that the court must, from the facts set out
in the
affidavit itself, before it can grant summary judgment, be able to
make a factual finding that the person who deposed to
the affidavit
was able to swear positively to the facts alleged in the summons and
annexures thereto and be able to verify the
cause of action and the
amount claimed, if any, and be able to form the opinion that there
was no bona fide defence available to
the defendant, and that the
notice of intention to defend was given solely for the purpose of
delay."
In
casu
this
Court is satisfied that the deponent to the summary judgment
application has met the prerequisites mentioned in the authority
cited herein.
[11]
A perusals of the documents attached to the particulars of claim it
is clear that although the certificate of balance of Belinda
Brauns
the home loan manager of the applicant, refers to the mortgagor, in
singular, it nevertheless relates to the bond account
by: M r DGW and
Mrs D Marais. As such the reference in singular does not take away
the fact that the bond account is in regard
of both the defendants.
This is the type of imperfection of the language the Court can
condone, because nothing much turns around
this issue. Furthermore,
the balance in the certificate is reflected as R1 312596. 35 in
respect of the bond account over Portion
1of Erf [...] Montana
Portion 1of Erf [...] Montana P.
[5]
[12]
Attached to the particulars of claim are there mortgage Bond
Agreements, respectively Annexure "Al" B 79206/2004;
Annexure "A2" 645482/ 2006 and Annexure "A3"
630661/ 2008 in respect of Portion 1 of Erf [...] Montana Park
Extension 12, registration Division J.R. Province of Gauteng. These
mortgage bonds could only have been consequential to valid
agreements
concluded between the mortgagors being both defendants and the
applicant. The years of registrations are explicit from
these bonds.
The denial of the existence of the first loan, second loan and even
the third loan by the defendants can only be without
merits but
calculated to unduly delay the inevitable.
[13]
In the result, it is this Court's considered view that the defendants
do not have a
bona fide
defence to the applicant's claim and
therefore the summary judgment stands to be granted with costs.
[14]
Consequently, it is ordered that summary judgment in favour of the
applicant/ plaintiff is granted against the defendants jointly
and
severally, the one paying the other to be absolved, as follows:
1. payment in the amount
of R1 312 596. 35;
2. interest at the rate
of 7.55% per annum, calculated from 5 February 2015 to date of
payment.
3. An order declaring
Portion 1of Erf [...] Montana Park Extensionl2, Registration Division
J.R, Province of Gauteng, measuring
1029 square metres, Held by Deed
of Transfer T93466 /2004 (subject to the conditions therein contained
specially executable)
4. An order authorising
the Plaintiff to execute against the said property as envisaged in
Rule 46(1)(a)(ii) of the Supreme Court
Rules;
5. An order authorising
the sheriff to execute the writ of execution;
6. An order for costs on
attorney and client scale.
_____________________
N.
M. MAVUNDLA
JUDGE
OF THE HIGH COURT
DATE
OF JUDGMENT
:
01
I
02
I
2017
PLAINTIFFS
ADV
: ADV. C.G.V.O. SEVENSTER
BRIEFED
BY
: S. RAUTENBACH VEZI & DE BEER INC
DEFENDANTS
ADV
: ADV Z SCHOEMAN
INSTRUCTED
BY
: MACHOBANE KRIEL INC
[1]
2000(4) SA 947 at 949B-950B.
[2]
1974 (2) SA 462
(N) at 467A.
[3]
2004 (3) SA 615
(SCA) at 624G-625A.
[4]
2011 (I) SA 196 (GNP).
[5]
Annexure "B" paginated page 57 of bundle I.