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[2016] ZAFSHC 214
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Blue Granite Investments No. 2 (RF) Limited v Steyn and Another (4080/2016) [2016] ZAFSHC 214 (15 December 2016)
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IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Case
No: 4080/2016
In
the application between:
BLUE
GRANITE INVESTMENTS NO.2(RF)LIMITED
Plaintiff
and
BAREND
HENDRIK STEYN
First Defendant
ANTOINETTE
STEYN
Second Defendant
JUDGMENT
BY:
C REINDERS, J
HEARD
ON:
8 DECEMBER 2016
DELIVERED
ON:
15 DECEMBER 2016
[1]
The Plaintiff, Blue Granite Investments No.2 (RF) Limited (hereafter
“Blue Granite Investments”) issued summons
against the
Defendants, Mr and Ms Steyn on 31 August 2016 for
inter alia
payment of an amount of R 1 855 531,59. After a notice of
intention to defend was filed by Mr Steyn (first defendant),
Blue
Granite Investments now moves for summary judgment against the First
Defendant. Mr Steyn opposed the application on several
grounds,
averring that he has a
bona fide
defence against the claim by
Blue Granite Investments. I do not intend to deal with these defences
as they do not impress me save
for the averment that the Plaintiff’s
certificate of balance only refers to account number [....]. This
allegation necessitates
closer scrutiny whether Plaintiff has availed
itself of its duty to clearly make out a case for summary judgment.
[2]
Six written home loan agreements were concluded on various dates
ranging from 2005 to 2009 between Mr Steyn and The Standard
Bank of
South Africa Limited (“the bank”) - so much is common
cause between the parties. These would be referred to
where
applicable as the first to sixth home loan agreements respectively.
Pursuant to these home loan agreements six mortgage bonds
were
registered in favour of the bank. Blue Granite Investments avers that
the bank sold and ceded all of its rights in respect
of the said home
loan agreements and mortgage bonds to it. According to Blue Granite
Investments the terms and conditions of these
loan agreements were
breached by the failure of Mr Steyn to pay the monthly instalments
due, as a result whereof the amounts became
due and payable.
[3]
It is common cause that a mortgage loan account number ([....]) was
allocated to the first to fifth loan agreements combined,
and that a
separate account number ([....]) was allocated to the sixth loan
agreement. In terms of the special conditions to the
sixth loan
agreement (Annexure “PoC1.11”), the following is stated
in clause 18 thereof:
“
Kindly
note due to your fixed rate option on your first account, you now
have two bond accounts. Home loan account number [....]
for
R
1 280 000
at
13.6% with instalments of R 15 705.75 and home loan account
number [....] for
R
130 000
at
10,5% with instalments of R 1 189.16.” (My emphasis)
[4]
In support of its claim Blue Granite Investments relies on a
certificate of balance (Annexure “PoC6”) as proof of
Mr
Steyn’s indebtedness in the amount of R 1 855 531.59.
The bond account number on the certificate is reflected
as [....].
Melissa Ross on behalf of the Plaintiff avers in her affidavit in
support of the application for summary judgment that
R
1 855 531.59 is due and payable and as proof of the amount
invites my attention to the said certificate. However,
in the summons
the amount of R 1 8555 531.59 is claimed in relation to all six loan
agreements (thus in relation to both account
numbers [....] and loan
account [....]).
[5]
The certificate can therefore not be correct. It might be a typing
error or an omission and most probably is. However, the deponent
states so under oath and I am not prepared to speculate in favour of
the Plaintiff in this regard. Account number [....] at best
can only
refer to the first five loan agreements and same do not add up to the
claimed amount. I am therefore not persuaded that
the Plaintiff has
clearly proved that it is entitled to summary judgment in the amounts
as claimed.
[6]
In view of the conclusion reached herein above it is not necessary to
deal with the question whether Mr Steyn has set out facts
which, if
proved at the trial, would constitute a defence. In passing by I
might mention that none thereof on face value persuaded
me that he
has a good defence. There is not even a single allegation that he has
made payment herein. The least said the better.
[7]
It also needs mentioning that Mr Steyn in his opposing affidavit
indicates that he is over indebted and was advised that the
court may
in terms of
section 85
of the
National Credit Act 34 of 2005
make a
direct referral to a debt councillor and declare him over indebted.
The only information placed before me by Mr Steyn is
that he is over
indebted as a result of a divorce action between himself and Mrs
Steyn and the subsequent loss of the business
which he conducted. I
am not satisfied on this scant information to find that Mr Steyn is
over indebted and I do not exercise my
discretion in this regard in
his favour. In any event the authority directs that a party should
not raise this as a belated defence
and should take the necessary
steps in this regard timeously.
See:
BMW Financial Services (SA)(Pty)Ltd v
Forefront Trading CC and Another
[2010] JOL 25191(KZD)
[8]
Accordingly I grant the following order:
1.
The application for summary judgment is dismissed.
2.
Leave is granted to the First Defendant to defend the action.
3.
Costs is to be in the cause.
________________
C.
REINDERS, J
On
behalf of the Plaintiff:
Adv. E.G. Lubbe
Instructed by:
Van Hulsteyns
c/o Strauss Daly
Inc
BLOEMFONTEIN
On
behalf of the First Defendant: Adv. J. Els
Instructed by:
C. Van der Linde
c/o Rossouws Attorneys
BLOEMFONTEIN