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[2016] ZAGPPHC 26
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Standard Bank of South Africa Limited v Dlamini and Another (42232/2015) [2016] ZAGPPHC 26 (22 January 2016)
REPUBLIC OF SOUTH
AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
GAUTENG DIVISION,
PRETORIA
CASE NO: 42232/2015
DATE: 22 JANUARY 2016
In the matter between:
THE STANDARD BANK OF
SOUTH AFRICA
LIMITED
..............................................................................................
APPLICANT
And
GODFREY
DLAMINI
...........................................................................................
1ST
RESPONDENT
NONDUMISO JUDITH
DLAMINI
.....................................................................
2ND
RESPONDENT
JUDGMENT
MSIMEKI, J
[1] For convenience, I shall refer to
the parties as plaintiff, first and second defendants.
INTRODUCTION
[2] Plaintiff instituted action against
first and second defendants for payment of the sum of R1 789 740.09;
interest thereon at
the rate of 9.25% per annum from 27 May 2015 to
date of payment; costs of suit as between attorney and client and an
order declaring
the immovable property in issue specifically
executable and that a writ of execution be issued as envisaged in
terms of rule 46(1
)(a) of the Uniform Rules of Court. Defendants
entered their appearance to defend the action which was followed by
an application
for summary judgment which is opposed by the
defendants.
[3] Plaintiff was represented by
Advocate H J Basson (Ms Basson) while defendants were represented by
Mr R Zimerman, an attorney
from Johannesburg, when the matter was
argued.
[4] On 30 October 2015 KGANYAGO AJ
condoned the late delivery of the plaintiff s application for summary
judgment. The application
was not opposed.
[5] The application for summary
judgment served before me on 13 January 2016.
[6] Defendants, on 16 September 2015,
filed their opposing affidavit and raised points in limine. Only one
point in limine relating
to the commissioning of the oath pertaining
to the affidavit supporting the application for summary judgment was
argued as the
others were, in my view, correctly abandoned.
[7] Defendants contended that the
affidavit in support of the application for summary judgment deposed
to by Sohini Rubyksoon was
fatally defective as it, according to
them, failed to comply with the requirements for a certified
affidavit as provided for in
Government Gazette of 23 April 1982.
[8] It was their contention that the
commissioner of oaths failed to reflect that the deponent had said:
“I swear that the
contents of this declaration are true, so
help me God.”
[9] The commissioner of oaths was said
to have failed to ask one of the three important questions in terms
of regulation 2(1 )(a),
(b) and (c) of the regulations. These
questions are:
(a) Whether the deponent knew and
understood the contents of the declaration. It was conceded in their
heads of argument that this
question was asked.
(b) Whether the deponent had any
objection to taking the prescribed oath. This question, according to
the defendants, was not asked.
(c) Whether the deponent considered the
prescribed oath to be binding on his conscience. The further
concession is that this was
done.
[10] The commissioner of oath’s
failure to ask the second question to the deponent, according to
them, meant that there was
no affidavit under oath
before the court and that the
application for summary judgment on this basis alone ought to be
dismissed with costs. Ms Basson disagreed
with the contention.
[11] Regulation 1(1) governs the manner
in which the oath is to be administered by the commissioner of oaths
who has to ask the
deponent to say: “I swear that the contents
of this affidavit are true so help me God.”
Regulation 2( 1) prescribes the
questions which the deponent must answer which are referred to above.
Regulation 2(2) requires the
deponent to state that he/she knows and
understands the contents of the declaration and that he/she does not
have any objection
to taking the oath which he/she considers binding
on his/her conscience. This is then followed by the administering of
the oath
by the commissioner of oaths as prescribed by regulation
1(1).
[12] Regulation 4(1) deals with the
certificate of the commissioner of oaths which should disclose below
the signature or mark of
the deponent that the deponent has
acknowledged that he/she knows and understands the contents of the
declaration (affidavit) and
also stating the manner, place and date
of taking the declaration.
[13] The respondents seem to say that
the questions posed in regulation 2(1) as well as the oath referred
to in regulation 1(1)
have to be repeated verbatim. Ms Basson
disagrees and states as her reason the fact that the purpose of the
commissioner’s
certificate is to certify that the relevant
regulations have been complied with. I agree.
[14] Mr Zimerman submitted that the
question whether the deponent had an objection to taking the
prescribed oath had not been asked.
Again Ms Basson disagreed.
The commissioner of oath’s
certificate states:
“I CERTIFY THAT THE DEPONENT HAS
ACKNOWLEDGED THAT SHE KNOWS AND UNDERSTANDS THE CONTENTS OF THIS
AFFIDAVIT AND FINDS SAME
BINDING ON HER CONSCIENCE WHICH WAS SIGNED
AND SWORN TO BEFORE ME AT JOHANNESBURG ON THE 13™ DAY OF JULY
2015.”
The commissioner of oaths NICOLAAS
CLAASEN has duly signed below the certificate.
[15] Ms Basson submitted that the
commissioner of oath’s certificate meets the requirements as
set out in the regulations
particularly regulation 4(1). A close and
proper reading of the certificate confirms this. The declaration was
signed and sworn
to before the commissioner of oaths. It clearly
shows that the oath was taken. It is conceded that the question
whether the deponent
considered the prescribed oath to be binding on
his conscience was asked. This presupposes that the question whether
the deponent
had any objection to taking the prescribed oath must
have been asked. “Sworn to” shows that the swearing was
done.
The defendants’ contention in my view has no merit.
[16] It is important to note that the
requirements as contained in regulations 1, 2, 3 and 4 of Government
Notice R1258 of 21 July
1972 as amended and as published in terms of
section 10(1) of the Justice of the Peace and Commissioners of Oaths
Act 16 of 1963
are not peremptory but merely directory. (See in this
regard S v Msibi
1974 (4) SA 821
(T) at 821H; Lohrman v Vaal
Ontwikkelingsmaatskappy (Edms) Bpk
1979 (3) SA 391(T)
at 396H-397A.
Van Loggerenberg, Erasmus Superior Court Practice Vol 2, page 1 D3-2
and S v Kahn 1963 (A) SA 897 (A) at 900C.
[17] The certificate of the
commissioner of oaths, in my view, in light of what the law espouses
above, indeed complies with regulations
1 to 4. The defendants’
contention in their point in limine deserves to be rejected and the
point in limine dismissed and
it is so rejected and the point in
limine, so dismissed.
[18] Defendants’ defences to the
main cause of action is based on reckless credit; securitisation and
inability to pay.
RECKLESS CREDIT
[19] Defendants’ contention is
that the agreement between the parties constitutes reckless credit as
plaintiff did not do
a credit assessment when the loan was granted.
The agreement, according to them, became subject to the National
Credit Act 34 of
2005 (“the NCA”) as further advances and
withdrawals, according to them, were allowed by plaintiff.
[20] Ms Basson submitted that the
contention that no credit assessment was done by plaintiff loses
sight of the fact that the provisions
of sections 80, 81 and 83 which
deal with the issue only came into operation and effect on 1 June
2007 while the agreement was
concluded before this date. The mortgage
bond was also registered before the provisions came into force.
Defendants, in paragraph
8 of their opposing affidavit, also admit
this. Section 4(2) of schedule 3 of the NCA in no uncertain terms
states that chapter
4 part D applies to pre-existing agreements only
to the extent that it does not concern reckless credit. Credit
assessment does
not apply to this matter.
[21] Ms Basson submitted that the
contention that further advances and withdrawals were allowed and
thereby making the agreement
between the parties subject to the NCA
is without merit. She basis her submission on the provisions of rule
32(3)(b) which provides
that:
“(3) Upon the hearing of an
application for summary judgment the defendant may -
(a) ...
(b) satisfy the court by affidavit
(which shall be delivered before noon on the court day but one
preceeding the day on which the
application is to be heard or with
the leave of the court by oral evidence of himself or of any other
person who can sear positively
to the fact that he has a bona fide
defence to the action; such affidavit or evidence shall disclose
fully the nature and grounds
of the defence and the material facts
relied upon therefor.” (My emphasis)
[22] The defendants need to disclose
fully the “nature” and “grounds” of their
defence and “the material
facts” they rely upon therefor.
[PCL Consulting (Pty) Ltd t/a Phillips Consulting SA V Tresso Trading
119 (Pty) Ltd
2009 (4) SA 68
(SCA) at 73B-C; Herb Dyers (Pty) Ltd v
Mahomed
1965 (1) SA 31
(T) and Breitenbach v Fiat SA (Edms) Bpk
1976
(2) SA 226
(T).
The “nature” of the defence
relates to the character or kind of the defence (Van Loggerenberg,
Erasmus Superior Court
Practice, vol 2, page D1-415). “Grounds”
relates to the facts upon which the defence is based [Chairperson,
Independent
Electoral Commission v Die Krans Ontspanningsoord (Edms)
Bpk
1997 (1) SA 244
(T) at 249G-250F and Maharaj v Barclays National
Bank Ltd
1976 (1) SA 418
(A) at 426 and Breitenbach v Fiat SA (Edms)
Bpk (supra) at 228.]
The material facts, sufficiently
disclosed, must be such that they persuade the court to find that
what the defendants allege, if
proved at the trial, will constitute a
defence to the plaintiffs claim. [Herb Dyers (Pty) Ltd v Mahomed
(supra); Premier Finance
Corporation (Pty) Ltd v Rotainers (Pty) Ltd
1975 (1) SA 79
(W) and Bank of Lisbon v Botes
1978 (4) SA 724
(W)]
[23] Ms Basson correctly submitted that
defendants failed to show the advances or withdrawals that were made.
This is also not pleaded.
Plaintiff refers only to the agreement
which was concluded during March 2007. Defendants also fail to show
when the advances and
withdrawals as well as the amounts were made.
No amount has been shown to have been advanced. Instead, paragraph 8
of defendants’
opposing affidavit puts the issue to rest by
stating that:
however, I am advised that thereafter
the applicant allowed further advances and withdrawals in respect of
the loan.” (My
emphasis)
This, at best, amounts to hearsay as
defendants have annexed no documentation to support the statement.
Those that advised defendants
have also not been disclosed.
[24] The principles enunciated in
Breitenbach v Fiat SA {supra) do not permit bald, vague or sketchy
defences. An allegation that
one is over indebted or that there has
been reckless credit will not, without substantiation, amount to a
bona fide defence [&4
Taxi Securitisation (Pty) Ltd v Mbatha and
two similar cases
2011 (1) SA 310
(GSJ) at 315E-G]
[25] Indeed, defendants produced bald,
vague and sketchy allegations which were not validly substantiated.
No evidence has been
produced to prove the allegations. This defence
should fail.
SECURITISATION
[26] Defendants contended that the
agreement had been securitised leaving plaintiff with no locus standi
to institute the proceedings.
What is again strange is that
defendants, in paragraph 11 of their opposing affidavit, state:
“... I do not have details of
whether in fact this alleged loan agreement was in fact securitised.”
(My emphasis)
This statement, in so many words,
destroys the defendants’ defence. Defendants in their opposing
affidavit reserved their
right to supplement their affidavit if they
obtained evidence to support their allegation. This never happened.
[27] Ms Basson submitted that it would
have been easy to determine if securitisation had taken place as the
procedure is well set
out in
section 16
of the
Deeds Registries Act
47 of 1937
read with sections 3(l)(f) and 54 of the Act.
[28] The Registrar of Deeds endorses
transfer of rights in and to a mortgage bond. The transfer is
endorsed on the original mortgage
bond. Cession of such rights also
takes place by endorsement on the relevant mortgage bond. Annexure
“B” to the summons
which is the relevant mortgage bond in
this matter has no such endorsement.
ROBERTSON J in Standard Bank of South
Africa Limited v Border (2105/2014) [2015] ZAECGHC 14 (11 February
2015) deals with the process
of securitisation.
In paragraph 29 the court said:
“The defendant merely believed
that it had and his belief amounted to no more than speculation. The
court eventually concluded
that facts that were set out by the
defendant had not supported the defence of securitisation. (My
emphasis)
I specifically asked Mr Zimerman, in
light of evidence at the court’s disposal, whether
securitisation had taken place in
this matter, he answered that he
did not know.
Mr Zimerman submitted that Banks needed
to disclose whether securitisation had taken place or not. He,
however, conceded that there
was no law forcing the Banks to so
disclose. Faced with the problem, he submitted that all they needed
to prove was suspicion.
Asked if suspicion would constitute a defence
he correctly conceded that it would not. Mr Zimerman then asked for
leave to investigate
if such securitisation had in fact taken place.
His final plea was that the court ought not to immediately declare
the property
executable in the event that it decided to grant summary
judgment. The investigation that Mr Zimerman refers to should have
been
done a long time ago.
[29] The fact of the matter is that
defendants merely alleged that securitisation had taken place without
evidence to support the
allegation. Defendants could very easily have
established with the Deeds office if securitisation had taken place.
This appears
not to have been done. Defendants, as correctly
submitted by Ms Basson, are merely speculating when they say that the
debt might
have been securitised. Plaintiffs case rests on the
mortgage bond which shows no securitisation of the debt. Defendants
themselves
do not have details of whether the agreement was in fact
securitised. This defence as well stands to be dismissed.
INABILITY TO PAY
[30] First defendant is said to have
been involved in a motor vehicle collision and therefore unable to
work.
Defendants allege that they have had to
rent out the property to others who give them rental income on which
they depend for their
living. It is noteworthy that the defence
should be valid in law and not one based on an unenforceable right or
inability to pay
(Van Loggerenberg, Erasmus Superior Court Practice,
Vol 2, page D1-413.)
[31] It must be bome in mind that
defendants do not deny the existence of the agreement or their
indebtedness to plaintiff. The
defences raised by them cannot be said
to be bona fide defences. The application for summary judgment, as a
result, should succeed.
[32] I, in the result, grant an order
as follows:
1. An order is granted in terms of
prayers (a), (b), (c) and (d) of application for summary judgment
dated 3 August
M W MSIMEKI
JUDGE OF THE GAUTENG DIVISION,
PRETORIA
Heard on: 13 January 2016
For the Applicant: Adv H J Basson
Instructed by: Stupel & Berman
Inc .
For the Respondents: Adv R Zimerman
Instructed by: Taitz & Skinne
Date of Judgment: 22 January 2016