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[2016] ZAKZDHC 58
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Naidoo v Absa Bank Limited and Others (13259/2009) [2016] ZAKZDHC 58 (17 June 2016)
IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL LOCAL DIVISION,
DURBAN
CASE
NO: 13259/2009
17/6/2016
In
the matter between:
THIREN
NAIDOO
APPLICANT
and
ABSA
BANK
LIMITED
FIRST RESPONDENT
JAMEEL
ADAMS
SECOND RESPONDENT
NM
VANKER
THIRD RESPONDENT
JUDGMENT
SISHI
J
Introduction
[1]
In this application the Applicant seeks an order in the following
terms:
1.
That
the sale in execution of the immovable property, [….] , Berea,
Durban to the Second and Third Respondents be set aside.
2.
That
any transfer of the immovable property, [….] to the Second
and/or Third Respondents resulting from any sale in execution
be set
aside.
3 That
the First Respondent is to provide the Applicant with a detailed
written
statement of the bond account, from inception to date of the
order, showing:
(a)
All amounts debited to the bond
and the reason therefor.
(b)
All amounts credited to the bond
account and the reason therefor.
(c)
Any
arrears which is to exclude all legal fees from inception of the bond
to date.
(d)
Monthly
bond statements from May 2011 to date of Court order.
4.
That
the First Respondent be held in contempt of the Court Order of 22 May
2012 under case number 13259/2009 out of this Honourable
Court.
5.
That
the First Respondent pays the costs of this application on an
attorney client scale.
6.
That
all those who oppose this application pay the costs of this
application on an attorney client scale.
[2]
The First Respondent is opposing the
application and the Second and Third Respondents have indicated that
they are not opposing
the application.
Background
[3]
The First Respondent granted to the
Applicant the loan for the purposes of acquiring an immovable
property. This is the same immovable
property of which the mortgage
bond was passed and to which the relief under paragraph 1 and 2 of
the Notice of Motion relates.
[4]
The First Respondent foreclosed on the
bond in 2009. The First Respondent brought an application to declare
the property specially
executable which litigation culminated in a
court order by agreement on 22 May 2012. (This order comprises
annexure "A"
to the Applicant's Founding Affidavit).
[5]
The terms of the court order referred to
above are central to this application. In brief, they provide for the
property to be declared
executable and that the Applicant was to
repay the accumulated arrears, in full, upon or before the 22 May
2013 in instalments,
and that in the event that he was to once fall
into arrears and having been given three days' notice and failing to
remedy the
breach, then the First Respondent can execute against the
property without further notice.
[6]
The attorneys of record for the first
respondent in the action, and a;; applications including the
application under the case number
13259/2010, were Pearce, Du Toit
and Moodie Attorneys.
The Court Order
[7]
It would be appropriate at this stage to set out fully the terms of a
said court order:
It is ordered
That the parties agree as follows:
1.
An
order is granted in terms of paragraph 1 of the Application to
declare immovable property executable dated 31 October 2011.
2.
That
the Applicant undertakes not to execute on the Immovable property on
the following conditions, namely:-
2.1
The
Respondent undertakes to pay the sum of R9194.00 (nine thousand, one
hundred and ninety four rand} per month into the Respondent's
bond
account held with the Applicant, which amount constitutes a payment
towards the arrears and the monthly bond instalment.
2.2
The
aforesaid payment will commence on 1 June 2012 and shall continue
until 31 May 2013, thereafter, the Respondent will continue
to pay
the normal bond instalment;
2.3
The
full balance of the arrears must be paid on or before 22 May 2013.
3.
In
the event that the Respondent fails to comply with any one of the
aforesaid undertakings in paragraph 2.1, 2.2 and 2.3, the Applicant
shall forward a notice to the Respondent's attorneys of record,
THEYAGARAJ CHETTY ATTORNEYS a email
theyagaraj@telkomsa.net
to remedy the breach within 3
(three) days, failing which the Applicant may execute against the
property for the full balance outstanding,
including arrears and
costs. The original judgment debt."
The
Issues
[8]
Two main issues arise in this matter;
the first is whether a proper breach notice was sent by the First
Respondent to the Applicant
or his attorney. The second issue is
whether the parties complied with the terms of the court order.
Applicant's contentions
[9]
The Applicant contends that he paid two
amounts of R3000 each into the First Respondent's account on 29
September 2014. On the 1
October 2014 Strauss Daly Attorneys sent an
email to the Applicant's attorneys advising that they have taken over
the file from
Pearce, Du Toit and Moodie Attorneys and further
advised the Applicant that he was in arrears in the amount of R16
131.34 and that
such amount should be paid within three days, failing
which, the First Respondent would proceed to execute against the
property.
[10]
The Applicant contends that Pearce, Du Toit and Moodie Attorneys were
still the First Respondent's
attorneys of record on 1 October 2014.
The Applicant contends that a further R10 000 in cash was paid within
three days of receiving
the alleged breach notice. The Applicant
claims to have paid the total amount of R16 500 by the 3 October
2014. The Applicant further
contends that the First Respondent has
not substantiated that the arrears were indeed R16 131.34. The breach
notice also does not
state from when the arrears were calculated. The
First Respondent also did not send him any statements of the bond
account.
[11]
The terms of the court order dated 22
May 2012 are clear and unambiguous. In terms of clause 2 thereof, the
First Respondent undertook
not to proceed against the property
provided that the Applicant paid the arrears on a regular basis and
paid the full balance of
the arrears upon or before the 22 May 2013.
[12]
Clause 3 of the said court order deals
with the event wherein the Applicant is in breach of clause 2. This
clause requires the First
Respondent in the event of breach, to send
the notice of breach to the Applicant's attorney of record Theyagaraj
Chetty Attorneys
at the email given in paragraph 3 of the court
order, to remedy the breach within three days, failing which the
First Respondent
may execute against the property for the full
balance outstanding, including arrears and costs.
[13]
The Applicant contends that he complied
with all the obligations set out in the court order. The First
Respondent contends that
the Applicant did not comply with the
obligations set out in the court order.
[14]
The Applicant further contends that the First Respondent did not
comply with the court order
before selling the immovable property in
that no breach notice was sent by the First respondent as a
prerequisite to any execution
proceedings in teems of paragraph 3 of
the said court order.
[15]
Counsel for the Applicant submitted that if the Applicant was in
arrears at any given time a
notice of breach had to be sent by the
First Respondent to the Applicant requiring him to remedy the
shortfall within three days.
Any notice of breach had to be sent by
Absa Bank or its attorneys to the Applicant. Counsel then submitted
that the Respondent's
attorneys of record in this matter were at the
time Pearce, Du Toit and Moodie Attorneys and not Strauss Daly, the
attorneys that
allegedly sent the breach notice. He submitted that
the letter dated 1 October 2014 which is annexure 'C' to the
Applicant's founding
affidavit, does not state that Strauss Daly
Attorneys acts on behalf of and are Instructed by the First
Respondent to send out
the breach notice. On the contrary, Strauss
Daly Attorneys state that they have taken over the file from Pearce,
Du Toit and Moodie
Attorneys. He further submits that Strauss Daly
Attorneys did not even state who their client is in the letter.
First
Respondent's contentions
[16] The
First Respondent on the other hand contends that Straus Daly
Incorporated were instructed to send
the notification and did so in
compliance with the court order. Counsel for the Applicant contended
that there is no confirmatory
affidavit from Strauss Daly to state
that they were instructed to send out the notice of breach and what
the amount of the breach
was. He further submitted that there is no
affidavit from Pearce, Du Toit and Moodie Attorneys to confirm, that
Strauss Daly Attorneys
have taken over the file and furthermore the
notice of withdrawal and substitution as attorneys of record wherein
Pearce. Du Tolt
and Moodie Attorneys withdrew as attorneys of record
and Strauss Daly Attorneys took over was served on the Applicant's
attorneys
on 16 September 2015, a year after the alleged breach
notice was sent. He submitted that the Applicant was quiet entitled
to ignore
the breach notice as it was not from the First Respondent
or the First Respondent's authorised representatives which the
Applicant
was aware of.
The Notice of Breach
[17]
It would be convenience at this stage to set out fully the contents
of the notice of breach dated
1 October 2014. It reads as follows:
"Dear Sirs
The above matter refers.
Kindly note that we have taken
over this file from Pearce, Du Toit and Moodie Attorneys.
We attach hereto a copy of a Court
order dated 22 May 2013. In terms of which you will notice that your
client is in breach thereof.
In terms of clause 3, we hereby
give notice that unless the arrears in the sum of R16161.34 is
settled within 3 days of date hereof,
our clients' instructions are
to proceed and obtain a sale date.
We trust the same will not be
necessary."
Evaluation
[18]
This email was written by Brenda Chetty of Strauss Daly Attorneys and
is addressed to the email
address of the Applicant's attorneys of
record as set out in clause 3 of the court order. The subject matter
is clearly stated
in the notice as Absa Bank v Naidoo T... Case no:
13259/2009. It is in the letterhead of Strauss Daly Attorneys.
[19]
It is not in dispute that the Applicant's attorney and the Applicant
received this said email.
The contents of the email are clear and
unambiguous. There is also no indication on the papers that the
Applicant's attorneys or
the Applicant himself ever queried the
contents of this notice from who the notice emanated from prior to
the institution of this
application or at any stage thereafter.
[20]
Furthermore, the Applicant's case in this matter is that he actually
complied with paragraph
2 of the said court order aft.er receiving
the said notice. The submission on behalf of the Applicant that he
was entitled to ignore
the breach notice does not make sense and is
flawed.
[21]
The last paragraph of this letter dated
1 October 2014 clearly states:
"In terms of clause 3, we
hereby give you notice that unless the arrears in the sum of R16
161.34 is settled within 3 days
of date hereof, our client Instructs
us to proceed and obtain a sale date."
The
Applicant's attorney and/or Applicant could not have been mistaken as
to who the client referred to in this email was. The parties
are
clearly cited in the said email and the case number is also cited in
this notice. Therefore any suggestion that no proper breach
notice
was given or that it should have been given by the bank itself or
Pearce, Du Toit and Moodie Attorneys is to put form before
substance.
[22]
I am satisfied that a proper breach
notice was given to the Applicant as required by clause 3 of the
court order.
[23]
The next issue is whether the parties
complled with the terms of the court order.
[24]
In terms of the email dated 1 October 2014, the Applicant was given
notice to pay the amount
of R16 161.34 within three days, failing
which the First Respondent would proceed to execute against the
property.
[25]
On the Applicant's own version from the papers, he made some payments
after receipt of the said
notice. He alleges that he paid R16 500
after receipt of the notice. But if one looks at the schedule which
he himself has put
up (annexure 18' on page 18 of the papers), he
paid three amounts (R2 000; R500, and R8 000 totalling R10 500). It
is also clear
from the papers that the Applicant paid two amounts of
R3 000 on 20 September 2014.. But these two payments of R3000 each
preceded
the demand which was given on 1 October 2014. When the First
Respondent failed to receive the R16 161.34 by the 3 October 2014,
it
proceeded to sell the property at the sale in execution. It was at
that sale in execution that the Second and Third Respondents
bought
the said property. It is therefore entirely incorrect, as counsel for
the First Respondent contended, that the Applicant
complied with the
notice of breach by paying R16 500. This is corroborated by the First
Respondent's records of all the transactions
on the relevant bond
account comprising annexure 'A' to the First Respondent's answering
affidavit.
[26]
It is clear that the Applicant only paid R10 500 within three days.
He then seems to include
previous payments in his computation of how
he arrived at the figure of R16 500.
The Applicant failed to comply
with clauses 2 and 3 of the court order.
[27]
Considering all the above, I am satisfied that the Applicant has
failed to make out a case for
the setting aside of the sale in
execution and for the setting aside or stopping the subsequent
transfer of the property in question.
Furnishing of statements of the
bond account
[28] In
respect of prayer 3, i.e. dealing with the furnishing of bond
statements, counsel for the First
Respondent submitted, correctly in
my view, that there is nothing on the papers suggesting that the
Applicant or his attorney at
any stage requested copies of the bank
statement and that those were refused.
[29]
Accordingly, a case has not been made out for the grant of the relief
sought in prayers 3 of the notice
of motion.
Contempt of court
[30]
Although counsel for the Applicant indicated that he is no longer
pursuing the prayer relating to contempt
of court, it is evident from
the papers that there are no allegation in the founding affidavit
supporting prayer 4 i.e. contempt
of court. In respect of the
contempt of court he submitted that there is not one averment in the
founding affidavit alleging that
the First Respondent is guilty of
any criminal conduct.
[31] In
Wightman Trading
as JW Construction v Headfour (Pty) Ltd and Another
[1]
the court held:
"A real, genuine and bona fide dispute of
fact can exist only where the court is satisfied that the party who
purports to raise
the dispute has in his affidavit seriously and
unambiguously addressed the fact said to be disputed. There will of
course be instances
where a bare denial meets the requirement because
there is no other way open to the disputing party and nothing more
can therefore
be expected of him. But even that may not be sufficient
if
the fact averred lies purely within the knowledge
cl
the
averring party and no basis is laid for disputing the veracity or
accuracy of a averment. When the facts averred are such that
the
disputing party must necessarily possess knowledge of them and be
able to provide an answer (or countervailing evidence) if
they be not
true or accurate but, instead of doing so. rests his case on a bare
or ambiguous denial the court will generally have
difficulty in
finding that the test is satisfied...."
[32]
In
AM Moolla
Group Ltd and Others
v
The Gap
Incorporated and Others,
[2]
the Supreme Court of Appeal held:
"Affidavits in application proceedings
must do more than make bald allegations; they must, in addition,
provide the facts that
supports the allegations....
[33]
Referring to the two cases above, counsel for the First Respondent
submitted that indeed there
are no allegations in support of prayer 4
(contempt of court) of the notice of motion. He then submitted that
Applicant's application
should be dismissed.
[34]
The Supreme Court of Appeal in
National
Director of Public Prosecutions v Zuma
[3]
stated:
"
Motion
proceedings, unless concerned with interim relief, are all about
resolution of legal issues based on common cause facts.
Unless the
circumstances are special they cannot be used to resolve factual
because they are not designed to determine probabilities
"
[35]
It is well established under the
Plascon
Evans
[4]
rule that where
In motion proceedings disputes of fact arise on the affidavits, a
final order can be granted only if the facts averred
in the
Applicant's affidavit, which have been admitted by the Respondent,
together with facts alleged by the latter, justify such
order.
[36] In
Zuma
(supra), the court went on to state that the position may
be different if the Respondent's version consist of bald or
uncreditworthy
denials, raises fictitious disputes of fact, is
palpably implausible or far-fetched or so clearly untenable that the
court is justified
in rejecting them merely on papers.
[37]
In the instant matter there are
no allegations at all in support of prayer (contempt of court) of the
notice of motion. There is
nothing in the founding affidavit to
sustain this prayer. This prayer can therefore not be granted.
Costs
[38]
On the issue of costs he submitted that the application should be
dismissed with a punitive costs
order. He submitted that the
allegations made with regard to contempt of court have been made
recklessly and warrant that a punitive
costs order be made in these
circumstances. Counsel for the Applicant also submitted that the
Applicant should be granted the relief
as prayed in the notice of
motion and that the First Respondent should be ordered to pay
punitive costs in this matter.
[39]
Having considered the submissions on the issue of costs, I am
satisfied that this is not a matter
warranting a punitive costs
order. In the result I am satisfied that the costs should follow the
result on the ordinary scale.
Order
1.
The Applicant's application is dismissed
with costs.
SISHI J
COUNSEL
Counsel
for the Applicant
: Mr
T Chatty
Instructing
Attorneys
: Theyagaraj
Chetty Attorneys
296 Randles Road
Sydenham
Durban
Counsel
for the Applicant
:
Adv AD Collingwood
Instructing
Attorneys
: Strauss Daly
Inc
9th Floor, Strauss Daly Place
41
Richefond Circle
Ridgeside
Office Park
Umhlanga
Ref: V Naidu/jm/A0038/2780
Date
of hearing
7 June 2016
Date
of Judgment
17 June 2016
[1]
2008 (3) SA 371 (SCA)
[2]
2005 (6)
SA 568 (SCA)
585 C-D
[3]
[2009] ZASCA 1
;
2009 (2) SA 277
(SCA) at para 26
[4]
Plascon- Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd
[1984] ZASCA 51
;
1984
(3) SA 623
(SCA)
para 26