About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Free State High Court, Bloemfontein
SAFLII
>>
Databases
>>
South Africa: Free State High Court, Bloemfontein
>>
2016
>>
[2016] ZAFSHC 199
|
|
Firstrand Bank Limited t/a Fnb Home Loans v Freddie and Another (4075/2016) [2016] ZAFSHC 199 (17 November 2016)
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE STATE DIVISION,
BLOEMFONTEIN
Reportable:
NO
Of
Interest to other Judges:NO
Circulate
to Magistrates:NO
Case
number: 4075/2016
In the
matter between:
FIRSTRAND BANK
LIMITED trading inter
alia
as FNB HOME
LOANS
Plaintiff
and
KGOSOGAEO
DANIEL FREDDIE
1st
Defendant
HENDRIETTA
PATIENCE BELLA
MABEL
FREDDIE
2nd
Defendant
HEARD
ON:
10 NOVEMBER 2016
JUDGMENT
BY:
JACOBS, AJ
DELIVERED
ON:
17 NOVEMBER 2016
INTRODUCTION
[1]
The plaintiff instituted action against the 1st and 2nd defendants
(the defendants) premised on a building loan agreement. The
plaintiff
claims from the 1st and 2nd defendants, jointly and severally, the
one paying, the other to be absolved:
1.1
“Payment
in the amount of
R251,183.69 (TWO HUNDRED AND FIFTY ONE THOUSAND ONE HUNDRED AND
EIGHTY THREE RAND AND SIXTY NINE CENTS);
1.2
Interest on the abovementioned amount, from 30 JULY 2016 to date of
final payment, at a variable interest
rate which is linked to the
prime interest rate, which variable interest rate was 10.20% nominal
per annum, as at the date of the
certificate of balance.
1.3 An
order declaring the mortgaged property specially executable by virtue
of the provisions of the mortgage
bond, being:
ERF
244, TUMAHOLE, DISTRICT PARYS
PROVINCE FREE STATE
MEASURING: 491 (FOUR
HUNDRED AND NINETY ONE)
SQUARE METRES
HELD BY DEED OF TRANSFER
NUMBER T6646/2006
BETTER
KNOWN AS 244 BROWN STREET, TUMAHOLE, PARYS, PROVINCE FREE STATE.
1.4
Costs of the cause.”
[2]
Subsequent to the filing of an appearance to defend and prior to the
defendants filing their plea or
any
further court process being undertaken, t
he
plaintiff lodged an application for summary judgment. Defendants, on
their part, filed opposing papers and pursuant thereto,
the parties
agreed that ‘leave to defend’ the main action will be
granted to the defendants.
[3]
The plaintiff, thereafter, filed two further affidavits deposed to by
I Mofokeng and TM Abbots, ostensibly the deponent to the
Plaintiff’s
Affidavit filed in support of summary judgment and the Commissioner
of Oaths who attested thereto respectively.
[4]
The plaintiff is not proceeding with the application for summary
judgment against the defendants as the defendants have since
paid the
outstanding balance in full. The remaining issue for adjudication
relates to the costs in the summary judgment application.
IN LIMINE
[5]
The defendants’ raised a point
in
limine
that the plaintiff is not entitled to file the supplementary
affidavits to the summary judgment application and that such
affidavit
should, be disregarded.
[6] It
is common cause between the parties, as such, that the place at which
the affidavit was signed, Johannesburg, does not coincide
with the
address of the Commissioner of Oaths. It is, thereto the
Defendants’ contention that the affidavit was, in
fact, not
signed in the presence of the Commissioner of Oaths as is required by
law.
[7]
The defendants further submit that in order for a court to consider
documents, in addition to the affidavit, the said documents
need to
be properly put before court according to which the defendants, is
not the case with the two further affidavits .
[8]
The plaintiff, in response, submits that the affidavit in support of
the application for summary judgment (the affidavit) was
signed by
its deponent, Innocent Mofokeng at Johannesburg on the 22
nd
of September 2016. The said affidavit, plaintiff submits, was
commissioned by a commissioner of oaths Tania Mary Abbotts, an
attorney
practicing at Hammond Pole Majola Inc. in Boksburg.
[9]
The plaintiff submits that the commissioner of oaths made an
affidavit from which the following is evident:
9.1 She confirms
that the affidavit was signed and sworn before her at the offices of
the plaintiff situated in Johannesburg
by the deponent thereof,
namely
Innocent Mofokeng
on
Thursday 22 September 2016.
9.2 Even though the
offices of
Hammond Pole Majola Inc
. are situated in
Boksburg
,
the commissioner of oaths travelled to Johannesburg on the aforesaid
date as she had to attend to a matter in the Johannesburg
High Court.
9.3
The commissioner of oaths dated the affidavit incorrectly by dating
it the
23
rd
of September 2016
instead
of the correct date which was in fact the
22
nd
of September 2016.
The aforesaid was occasioned by a
bona
fide
mistake.
[10]
The plaintiff submits that the deponent of the plaintiff’s
affidavit in support of the application for summary judgment,
Innocent
Mofokeng
,
also made an explanatory affidavit in which it was confirmed that he
signed the affidavit before the commissioner of oaths at
the offices
of the Plaintiff situated in Johannesburg on Thursday
22
September 2016.
[11]
Regulation 3(1) of the Regulations Governing the Administration of an
Oath or Affirmation, GN R1258 of 21 July 1972
[1]
,
(as amended) reads as follows:
“
The
deponent shall sign the declaration in the presence of the
commissioner of oaths.”
[12]
In Cape Sheet Metal Works (Pty) Ltd v JJ Calitz Builder
[2]
the court held that the provisions of Regulation 3 are not
peremptory
[3]
. In S v Kahn the
court stated that it has the discretion to refuse to receive an
affidavit attested otherwise than in accordance
with the regulations
depending upon whether substantial compliance with the regulations
has been proved or not
[4]
.
[13]
In
Standard
Bank of SA Limited v Jonathan Drennan Redmond
[5]
Khumalo J stated, with reference to the unreported
case
Ingersoll Rand Company SA (Pty) Ltd v Frandcorp CC
[6]
that: “
A
party disputed that the deponent to an affidavit signed in the
presence of the commissioner. The facts of the matter were
different in that the date on the certificate that which the
commissioner declared to be the date of deponent’s signature
of
the affidavit differed from the date on the stamp that was affixed on
the certificate to indicate the date on which the commissioner
signed
and completed his particulars. The certificate stated that
deponent signed the affidavit on 5 July 2015 whilst the
stamp affixed
on signature by the commissioner had 6 July 2015. The
handwriting that completed the certificate seemed different
to that
of the commissioner of oaths that had a different date. The
court held that in the absence of a verifying affidavit
from the
deponent or commissioner the inference should be that the deponent
did not sign in the presence of the commissioner…
[7]
”
[14]
It is clear that the explanatory affidavits are not in support of the
summary judgment application but rather clarify the discrepancies
in
the supporting affidavit. Not to allow the applicant the opportunity
to do so in the circumstances of the instant matter would,
in my
view, be tantamount to placing form before substance. In having
regard to what is contained in the explanatory affidavits,
I accept
that in dating the affidavit the 23
rd
of September 2016 the commissioner made a bona fide mistake and I,
further, accept that the deponent signed the affidavit in the
presence of the commissioner. The point
in
limine,
therefore, stands to be dismissed.
THE
PLAINTIFF’S CASE
[15]
Adv. Sander submits that the defendants on their own version state
that they were in arrears for a period of 5 months. He
further
submits that the defendants only paid the arrears after the
application for summary judgment was filed. He confirms that
the loan
agreement provides in par 5.16 that the defendant “
is
entitled to settle the amount outstanding in full..”
,
He however, submits that this does not mean that in between the
defendants were entitled to pay any amount they wanted or not
to make
payment at all.
[16]
He submits that defendants only made payment after the summary
judgment application was lodged. The defendants should, in his
view,
have paid the costs occasioned by the application at the time they
made payment on the loan agreement as the costs are reasonable
costs
incurred in enforcing the agreement.
THE
DEFENDANTS’ CASE
[17]
The defendants submit that due to the first defendant’s long
service in the Department of Education, running just
a
few months short of
40 years’ service, there was no doubt that his lump sum
pension pay out would be far more than sufficient to pay the
outstanding amount on the bond. The defendants submit, further,
that it was only under these circumstances that the contract
between
the plaintiff and the defendants was concluded.
[18]
This, the defendants submit, resulted in their having negotiations
with Jeanette from the South African Home Loans and acting
on behalf
of the Plaintiff, during April 2016 in order to bridge the time
between the first defendant’s retirement and his
receipt of
lump sum pension pay-out. The defendants submit that due to
this they, on request, visited FNB Parys and completed
documentation
marked “Distress Debt Application” during July 2016.
[19]
The defendants further submit that after summons was received they
were requested by a representative of the Plaintiff, after
the
relevant information was again conveyed to the Plaintiff, to obtain
from the
Government
Employees Pension Fund (GEPF) stating
when
the first defendant’s lump sum would be paid out. The
first defendant submits that although he spoke to the district
director for the
Dr
Kenneth Kaunda District
he was not able to obtain the required affidavit. He was
informed that it was against policy to issue such affidavits.
He was nevertheless granted a letter dated 7 September 2016
indicating that his pension pay-out was being processed. This
information
was also conveyed to the Plaintiff.
[20]
All information requested was supplied and the defendants submit that
they were informed by the Attorney of the Plaintiff to
pay:
22.1 On
or before the 30
th
of September 2016 an amount of R9
191.34;
22.2
At the end of October further amount of R9 191.34 and also to adhere
to other conditions as per the plaintiff’s
letter dated 20
September 2016.
[21]
This letter was sent to plaintiff’s correspondent Attorney in
Bloemfontein on or during 20 September 2016. A response
was
expected from the defendants on the following day, the 21
st
of September 2016 before close of business. The Defendants
submit that although the Attorney for the Plaintiff was informed
about deadlines he could only be able to see the defendants the
following week; which was a long way off from the cut-off date
of 30
September 2016. An application for summary judgment was served on the
26
th
of September 2016.
LEGAL
POSITION
[22] I
refer quite extensively to the majority judgement in
Nkata
v FirstRand Bank Ltd and Others
[8]
delivered
by Moseneke DCJ where the Constitutional Court dealt with the
relationship between credit providers and credit consumers.
The court
stated that:
‘
The
Act seeks to infuse values of fairness, good faith, reasonableness
and equality in the manner actors in the credit market relate.
Unlike in the past, the sheer raw financial power difference between
the credit giver and it’s much needed but weaker counterpart,
the credit consumer, will not always rule the roost. Courts are
urged to strike a balance between their respective rights
and
responsibilities. Yes, debtors must diligently and honestly
meet their undertakings towards their creditors. If
they do
not, the credit market will not be sustainable. But the human
condition suggests that it is not always possible –
particularly in credit arrangements that run over many years or
decades, as mortgage bonds over homes do. Credit givers serve
a
beneficial and indispensable role in advancing the economy and
sometimes social good. They too have not only rights but
also
responsibilities. They must act within the constraints of the
statutory arrangements. That is particularly so
when a credit
consumer honestly runs into financial distress that precipitates
repayment defaults. The resolution of the
resultant dispute
must bear the hallmarks of equity, good faith, reasonableness and
equality. No doubt, credit givers ought
to be astute to
recognise the imbalance in negotiating power between themselves and
consumers. They ought to realise that
at play in the dispute is
not only the profit motive, but also the civilised values of our
Constitution.
[9]
’
[23]
I
would also like to refer to the following paragraph in the same
judgement
‘
The
purposes of the Act are directly attributable to the constitutional
values of fairness and equality.” “…The
tools for
achieving the Act’s purposes include the promotion of “equity
in the credit market by balancing the respective
rights and
responsibilities of credit providers and consumers”, and the
development of “a consistent and accessible
system of
consensual resolution of disputes arising from credit agreements. In
sum, the Act is “a clean break from the past”
and
encourages dialogue between consumers and credit providers
[10]
.’
APPLYING
LEGAL POSITION TO THE FACTS
[24]
In this application the bank was well aware that the first defendant
was on pension and would not receive a salary pending
his pension
pay-out. The National Credit Act
[11]
(NCA) in encouraging dialogue between consumers and credit providers
placed an obligation on the plaintiff to consider, when the
defendants informed the plaintiff of their situation, not to storm
ahead and issue summons. We are not dealing with recalcitrant
defendants. The bank was at all times aware of the financial
position of the defendants and also their desire to settle the
amount
in arrears from the pension pay-out. Therefore had the plaintiff
exercised patience and waited a bit longer before issuing
summons in
this matter they would not have incurred any legal costs in enforcing
the agreement. The actions of the plaintiff were
therefore not in
accordance with the spirit of the NCA or the Constitution.
[25]
On this premise I dismiss the application with costs.
_____________
S.
JACOBS, AJ
On
behalf of the plaintiff:
Adv W. J. Groenewald
Instructed
by:
Symington
& De Kok
Bloemfontein
On
behalf of the defendants:
Adv A. Sander
Instructed
by:
Lovius
Block
Bloemfontein
[1]
Regulations
promulgated in terms of the Justices of the Peace and Commissioners
of Oath Act16 of 1963.
[2]
Cape Sheet
Metal Works (Pty) Ltd v JJ Calitz Builder
1981 (1) SA 698
(O) at 699 A – B
[3]
See also
ABSA
Bank Ltd v Botha NO and Others
2013 (5)SA 563 (GNP)
[4]
S v Khan
1963 (4) SA 897
(A) at 900C
[5]
Unreported case
Gauteng Division, Pretoria no: 80438/2015 delivered 02 June 2016 at
para 14
[6]
Ingersoll Rand
Company SA (Pty) Ltd v Frandcorp
CC,
Case no: 40111/2015 delivered on 23 October 2015
[7]
See footnote 5
above
[8]
Nkata v
Firstrand Bank Limited and Others
2016 (6) BCLR 794
(CC) para 94
[9]
Ibid para 94
[10]
Ibid para 96
[11]
National Credit
Act 34 of 2005