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[2016] ZAGPPHC 13
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Absa Bank Ltd v Etsane (33071/2012) [2016] ZAGPPHC 13 (15 January 2016)
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IN THE NORTH GAUTENG
HIGH COURT, PRETORIA
[REPUBLIC OF SOUTH
AFRICA]
15/01/2016
CASE NUMBER 33071/2012
NOT REPORTABLE
NOT OF INTEREST TO OTHER
JUDGES
REVISED
In the matter between:
ABSA BANK
LIMITED PLAINTIFF
And
MOLOKO HECTOR
ETSANE DEFENDANT
JUDGMENT
MAVUNDLA. J,
[1] The plaintiff seeks
an order in terms of which the defendant's immovable property Erf 660
Silver Lakes Township Registration
Division J.R.; Province of
Gauteng; Measuring 1050 (one thousand and fifty) square meters Held
by deed of transfer T60806/2006
is declared executable, in terms of
Rule 41(4) and 46(1)(a).
[2] It is common cause
that on or about 12 November 2007 the defendant passed a first
mortgage bond for an amount of R3 300 000.00
together with an
additional amount of R66 000. 00 in respect of monies lent and
advanced to the defendant pursuant to a loan agreement
concluded
between both parties, the full terms of which are contained in
annexure "A" attached to the plaintiff's summons
issued
against the defendant.
[3] As security for the
loan amounts lent and advanced, the defendant bound
as security for the said amounts,
his following property: ERF […]
Silver lakes Township, Registration Division J. R., Province Gauteng
Measuring 1050 (One
Thousand and Fifty) Square metres
Held by Deed of Transfer
T60806/2006.
[4] It is common
cause that the defendant breached the terms of the
agreement in that he defaulted
in the bond
instalment repayment resulting in the amount
of R3 274 767. 47 together
with interest thereon at the rate of 9.00%
per annum capitalized monthly with effect from 20 March 2012 to date
of payment becoming
due and payable. Consequently the plaintiff
issued summons against the defendant for the payment of the aforesaid
amount and interest,
on 12 June 2012. The summons was served upon the
defendant on the 18 June 2012.
[5] The defendant entered
an appearance to defend the matter on the 28 June 2012. The plaintiff
applied for summary judgment against
the defendant, which was heard
on the 21 August 2012, resulting the following Court Order "A"
court:
1. That leave to
defendant the action be granted to the defendant;
2. That the defendant to
pay the plaintiff the arrears amount in respect of the current loan
agreement within 30 (thirty) days of
the plaintiff furnishing the
defendant with a certificate of balance, and stamen of account;
3. That the
plaintiff to reinstate and activate the loan account
so as to enable the defendant to make payment
in accordance with
prayer 2 (two) here above.
4. That, costs pertaining
to the summary judgment application, be costs in the cause;
5. That, the loan
agreement, as per agreement will remain in effect,
and will continue on the same
basis."
[6] The parties exchanged
pleadings and the matter was enrolled for trial on 20 May 2014. On
the said date the parties reached an
agreement which was made an
order of court, a copy of which was attached as annexure "B".
According to the plaintiff
the defendant failed to comply with the
said court order in the following instances:
6.1. failing to pay the
instalment as reflected in paragraph 2 of the order, and
6.2. Failing to
provide the plaintiff with updated
information on his financial
position before or on
20 June 2014 as per paragraph 6 of the order.
[7] The plaintiff further
contended that in terms of the order, and more specifically paragraph
7 thereof, should the defendant
fail to comply with any of his
obligations in terms of the agreement or the agreement attached to
the plaintiff's summons as annexure
"A", the plaintiff will
be entitled to apply, upon notice and, on unopposed basis, to have
the defendant's immovable
property declared specifically executable
as prayed for the in the summons.
[8] In opposing the
application to have his immovable property declared executable, the
defendant contended that the plaintiff caused
a constructive breach
which goes to the heart of the settlement agreement in that it failed
to reinstate and activate the loan
account as to enable him to make
payment in accordance with prayer 2 of such order; and failed to
provide him with access to the
account to make payment in accordance
with the settlement agreement.
[9] The defendant further
contended that the immovable property is his
family's primary residence
and if decaled executable they will have
no accommodation, shelter. His wife is employed and their children go
to nearby school
as live in a safe environment, a security and
convenient location.
[10] It was further
submitted on behalf of the defendant that there was a
compromise in the form of novation and therefore
the plaintiff is not
entitled to the order sought but must sue de nova on the compromise.
The applicant cannot have the property
declared executable in
settlement of monetary order. The account which was in progress is
subject to a court order that it be reactivated.
There is no
verification application and therefore the application must be
dismissed with costs.
[11] According to the
plaintiff, the defendant failed to comply with a settlement agreement
concluded on the 20 May 2014 and made
an order of the Court,
Annexure "B". The settlement agreement provided that the
defendant's transactional account
is activated for purposes of the
defendant to make payment into the account; the defendant will pay a
minimum monthly instalment
in the amount of R35 707, 93. 00 from date
of settlement until the defendant is no longer in breach (owing less
than R3 300 000,
00) where after the agreement will proceed on its
pre-default basis. It needs noting that the settlement agreement does
not specifically
provide how the payment is to be made by the
defendant. It however provides, inter alia, that the defendant would
provide the plaintiff
with updated information on the defendant's
financial position on or before 20 June 2014.
[12] According to the
plaintiff the defendant failed to provide the plaintiff with update
information on the defendant's financial
position before 20 June
2014, or at all. According to the plaintiff the defendant had not
made a single payment in terms of the
settlement agreement, which
provided that should defendant fail to comply with the any
obligations in terms if the agreement, the
plaintiff will be entitled
to apply, upon notice on unopposed basis, to have the defendant's
immovable specially executable.
[13] The defendant in his
opposing the application contended that the plaintiff caused a
constructive breach which goes to the heart
of the settlement
agreement in that it failed to reinstate and activate the loan
account as to enable him to make payment in accordance
with prayer 2
of such order; and failed to provide him with access to the account
to make payment in accordance with the settlement
agreement.
[14] The defendant
further contended that the immovable property is his family's primary
residence and if decaled executable they
will have no accommodation,
shelter. His wife is employed and their children go to nearby school
as live in a safe environment,
a security and convenient location.
[15] It was further
submitted on behalf of the defendant that there was a
compromise in the form of novation and therefore
the plaintiff is not
entitled to the order sought but must sue de novo on the compromise.
The applicant cannot have the property
declared executable in
settlement of monetary order. The account which was in progress is
subject to a court order that it be reactivated.
There is no
verification application and therefore the application must be
dismissed with costs.
[16] It was submitted on
behalf of the plaintiff that the purpose of the
settlement agreement is unambiguous and clear.
The basic rules of
interpreting a judgment or order are no different to those applicable
to the construction of other documents.
The Court's intention has to
be ascertained primarily from the language of the judgment or order,
construed according to the well-known
cannons of interpretation. In
this regard reliance is made on the decisions of
Engelbrecht
v Senwes Ltd
2007 (3) SA 29
(SCA) at 32 and
Firestone SA {PTY)
Ltd v Gentiruco AG
1977 (4) SA 298
(A) at 304. It is further
contended that on such a reading of the judgment or order is clear
and unambiguous, no extrinsic fact
or evidence is admissible to
contradict, vary qualify or supplement such meaning.
[17] It was further
submitted on behalf of the plaintiff that the defendant's requirement
and obligation to make payment was not
subject to the activation of
the transactional account. The defendant's obligation to provide
updated financial information is
in terms of the original agreement
and is not subject to anything. The plaintiff is, so it was
contended, is acting in terms of
the settlement agreement which
provided that should the defendant fail to comply with any of his
obligations in terms of
the agreement, the plaintiff will be entitled
to apply to have the defendant's property declared specially
executable.
[18] In Amler's
Precedents of Pleadings seventh Edition, page 97 a
compromises is defined as a contract
which has its object the
prevention, avoidance or termination of litigation. It is a
substantive contract which exists independently
of the cause that
gave rise to compromise.
[19]
In casu,
the
relied compromise is premised on the agreement reached and made an
order of Court on 20 May 2014 marked "X". Of importance
is
paragraph 7 thereof which reads as follows:
"5
That the defendant be
granted to 20 May 2015, to ensure that the Defendant is within the
limits provided for by his Private Bank
One facility and no longer in
breach.
6
That the defendant in
terms if clause 4 of annexure "A" to the plaintiff's
summons provide the Plaintiff with updated
information on the
Defendant's financial position on or before 2-0 June 2014.
7
Should the defendant fail
to comply with any of his obligations in terms of this agreement or
the agreement attached to the plaintiff's
summons as Annexure
"A" the plaintiff will be entitled to apply, upon
notice and, on an unopposed basis,
to have the plaintiff's property
specially executed as prayed for in the summons."
[20] In the matter of
Chapmans Peak Hotel v South Peninsula Municipality
1998 (4)ALL
SA 619
(C) at 634b-d the Court held as follows:
Botha JA in
Van Zyl v
Niemann
1964 (4) SA 661
(A) at 669H-670A, stated that "the
legal consequences of a compromise are the same as
res judicata
and, in the absence of an express or implied term to the
contrary, results therein that the original cause of action is
extinguished.
Miller JA in
Go/loch
&
Comperts
{1967} (Pty) Ltd v Universal Mills
&
Produce
Co
(Pty)
Ltd (supra)
at 922H described a compromise as most closely
equivalent to a consent to judgment.
The
onus
of proof
is on the party who alleges that a compromises has been reached
(see:
Torch Morden Binnehuis Vervaardiging Venn (Edms)
Bpk v Husserl
1946 CPD 548.
The ambit of compromise
of issues between the parties to legal proceedings
brought on notice of motion,
is determined with reference
to the affidavits filled by them and
crystallised by the relief claimed (see:
Horowitz v Brock and others
1988 (2) SA 160
(A) at v179J-180A) as well as the terms of
compromise, and whether or not, the compromise
results in an order
of court, is interpreted in accordance with the
general rules applicable to the interpretation of documents (see:
Firestone SA (PTY) Ltd v Gentiruco
AG
1977 (4) SA 298
(A) at
304D-H)."
[21] On perusal of the
Court order upon which the alleged compromise is relied upon, in
particular paragraph 7 thereof, it is clear
that the original causa
has not been jettisoned out, so as to debar reliance thereon. If the
intention was to exclude the original
causa, then there would have
been no need to include in the agreement made an order of court the
'breach of any of the defendant's
obligations in terms of the
agreement attached to the plaintiff's summons as Annexure "A"'.
Should the defendant breach
any of the aforesaid conditions, the
plaintiff is at large to seek an order to have the defendant's
property specially executed
as prayed for in the summons. This
also makes it abundantly clear that the prayers in the original
summons are still alive
and therefore making it unnecessary to have
summons initiated
de nova.
In my view, the defence of
compromise stands therefore to be dismissed. This should be so
because the defendant has not specifically
denied his
indebtedness to the plaintiff, as alleged in its paragraph 4.6. As a
matter of fact the defendant admitted that in terms
of the agreement,
should he fall in arrears with his monthly repayments, the full
amount owing and secured under the mortgage bond
would immediately
become due, owing and payable.
[22] The defendant has
further raised as a defence that the relevant property is the domain
of both himself and his family. The
domain is in proximity to the
school attendant by his children and to the work station of his wife.
In as much as the applicant
has a right to housing, as guaranteed in
the Bill of rights in the Constitution, however, such right does not
debar a credit provider
to exercise his rights to demand payment due
to him and even execute and sell the mortgage property. This as much
has been recognised
in a plethora of authoritative Court decisions.
In my view, balancing the respective interest of both parties, and
having regard
to the fact that the amount is not insubstantial, the
dictate of fairness, sway me to find that the interest of the
applicant,
in the circumstances of the case must yield to that
of the applicant. I therefore find that this defence raised does not
preclude the applicant in having the relevant property specially
executed and sold, if need be, to liquidate the defendant's
indebtedness.
[23] With regard to the
defence of impossibility to comply with payment, as contended by the
defendant, I am not persuaded that
there is merit in this regard. The
defendant could easily have paid into one or other account to
demonstrate his bona fides to
comply with the settlement agreement
made an order of Court.
[24] In the premises, I
find that the applicant has made an unassailable case for the order
sought and that the defendant's defences
should be dismissed as I do.
In the result the following order is made:
1. That the defendant be
and is ordered to pay the plaintiff the amount of R3,834,183. 08;
2. That interest on the
abovementioned amount at the rate of 9% per annum, calculated and
capitalised monthly from 5 May 2014 to
date of final payment, both
dates inclusive;
3. That the Defendant be
and is ordered to pay all the Plaintiff's costs of the action under
case number 33071 / 2012, to be taxed
on a scale as between attorney
and client;
4. That the Defendant be
and is ordered to pay costs of this application to be taxed on a
scale as between attorney and client;
5. That the Defendant's
following immovable property be and is declared specially executable:
ERF […] Silver
lakes Township,
Registration Division J .
R.,
Province Gauteng
Measuring 1050 (One
Thousand and Fifty) Square metres
Held by Deed of Transfer
T60806/2006.
6. That the Registrar of
this Court be and is authorised to issue a warrant/ s of execution
against the Defendant's immovable property,
to give effect to order
granted in terms hereof.
_______________
N.M. MAVUNDLA
JUDGE OF THE HIGH COURT
DATE OF HEARING :
04
I
12/2015
DATE OF JUDGMENT :
15
I
01/2016
APPLICANTS' ADV : ADV J.
S. GRIESEL
INSTRUCTED BY : TIM DU
TOIT & INC
RESPONDENTS' ADV : ADV A.
P. ELLIS
INSTRUCTED BY: MURPHY
KWAPE MARITZ ATTORNEYS