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[2016] ZAGPPHC 40
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Standard Bank of South Africa Ltd v Van der Merwe and Another (17092/2015) [2016] ZAGPPHC 40 (29 January 2016)
REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
DATE:
CASE NO: 17092/2015
29/1/2016
NOT REPORTABLE
NOT OF INTEREST TO OTHER JUDGES
REVISED
In the matter between:
THE STANDARD BANK OF
SOUTH AFRICA LIMITED
APPLICANT
And
ANDRE VAN DER
MERWE 1ST
RESPONDENT
ANAMARIE VAN DER
MERWE 2ND
RESPONDENT
JUDGMENT
MSIMEKI. J
[1] This is an application for summary judgment against
the respondents for payment of an amount of R381 581.98; interest
thereon;
monthly insurance premiums of R324.76; an order declaring
the hypothecated property especially executable; authorising the
issuing
of a writ of execution and costs.
[2] On 16 March 2015 respondents delivered their notice
of intention to defend which was followed by an application for
summary
judgment.
[3] Advocates JH Mollentze and Francois Greef,
respectively, represented applicant and respondents when the matter
was argued.
[4] First respondent deposed to an opposing affidavit
stating that the respondents have a
bona fide
defence against
the applicant's claim and not that appearance to defend had been
entered for purposes of delaying the speedy resolution
of applicant's
claim.
[5] Respondents' contention is that plaintiff s
particulars of claim are lacking in that Part A being quotation/cost
of credit section
was not attached to the particulars of claim. This
contention is based on the fact that point 5 of annexure "A2"
to plaintiff
s particulars of claim describes the agreement between
the parties as an agreement which means:
"... the quotation/cost of credit section - Part A
read together with the terms and conditions (Part B) and all
repayment instructions,
letters and notices".
Respondents contend that Part A forms an integral part
of the credit agreement. This is the reason, respondents argue,
applicants
cause of action is lacking. This, according to them, as
advised, becomes an absolute bar against the granting of summary
judgment.
[6] The nub of their defence is that applicant failed to
comply with the provisions of Rule 18(6) which provides that:
"A party who in
his pleading
relies upon a
contract shall state whether the contract is written or oral and
when, where and by whom it was concluded, and if
the contract is
written a true copy thereof
or part relied on in the pleading.
shall be annexed to the pleading
."(my emphasis)
[6] In deciding the issue it is important to have regard
to what is said to be a "pleading".
[7] It is also noteworthy to know what a simple summons
is. A simple summons, in terms of Rule 17(2)(b) is a legal document
which
shall be as near as may be in accordance with form 9 of the
first schedule. The document is used where the claim is for a debt or
liquidated demand.
The form only requires, regarding the setting out of the
cause of action, that that be done in concise terms. In doing so one
has
to give a general indication of the claim amounting merely to a
label.
(Icebreakers No 83 v
Medicross Health Care Group No
83 v Medicross Health Care Group
2011 (5) SA 130).
[8] It has been held that a simple summons is not a
pleading
(Icebreakers No 83 v Medicross Health Care Group (supra)
at paragraphs [9] and [lO]E and
Absa Bank v Janse van Rensburg
and
Another
2013
(5) SA 173
at paragraph [5]F. In the
Icebreakers No 83 v Medicross
case, WALLIS J dealt with Rule
18 (1), 18(3) and 18(4).
[9] Rule 18(1) clearly shows that a simple summons does
not have to be signed by anyone other than an attorney. A combined
summons
needs the signatures of an advocate and an attorney. In a
simple summons a party has to wait for a declaration to which he/she
must respond. An exception is directed at the pleading and not the
summons. A simple summons not being a pleading cannot be attacked
by
way of an exception.
Icebreakers No 83 v Medicross Health Care
Group (supra)
at paragraph [12].
[10] In terms of rule 18(3) every pleading has to be
divided into paragraphs which are consecutively numbered and as near
as possible
and each having a distinct averment. This is not in line
with the contents of a simple summons set out in Form 9.
[11] Rule 18(4) provides that every pleading shall
contain a clear and concise statement of the material facts upon
which the pleader
relies for the claim, with sufficient particularly
to enable the opposite party to reply thereto. In a combined summons
this will
be covered by the particulars of claim while in a simple
summons, as shown above, one has to wait for the declaration to which
he/she responds by way of a plea.
[12] It will be recalled that respondents based their
defence on non-compliance with the provisions of Rule 18(6).
Rule 18(6) provides:
"A
party who in his pleading relies upon a contract shall state whether
the contract is written or oral and when, where and
by whom it was
concluded and if the contract is written a true copy thereof or
of
the part relied on in the pleading shall be annexed to the pleading
."
(My emphasis)
A simple summons being different from a combined summons
GRlESEL J in
Absa Bank v Janse van Rensburg and Another (supra)
at
page 180 paragraph [16]G said:
"it
would be incongruous to have a more onerous requirement in respect of
a simple summons - in other words, it should be open
to a plaintiff
who relies on a portion only of a voluminous written agreement, only
to attach such portion to the summons and not
the whole document."
[13] Two issues need consideration and these are whether
applicant was supposed to have annexed Part A of the agreement and
whether
the simple summons read with annexures A l and A2 is
adequate for applicant to be entitled to the summary judgment prayed
for by it.
[14] Clearly, according to the simple summons,
applicant, for its cause of action, relies on annexures A l , A2 and
the debt restructuring
or re-arrangement order dated 8 June 2011 in
terms of which respondents were to pay applicant an amount of R3
124.29.
[15] Mr Mollentze, for the applicant, submitted that:
1.
respondents
admitted the breach of the re-arrangement order in that they conceded
that they had not properly complied with
the provisions of the
order.
2.
the credit
agreement was enforceable without further notice once a
debt-rearrangement order was breached. This submission is in
line
with the decision of
Ferris and Another v
Firstrand Bank
2014 (3) SA 39
at paragraph
[18] B page 46 MOSENEKE ACJ said:
"While
Firstrand
is not entitled to rely on
this section (ie section 86(1)) for enforcement of the loan because
notice was not properly given,
it was independently entitled to
enforce the loan on the basis of the breach of the debt-restructuring
order and the provisions
of the debt-restructuring order itself."
(my emphasis)
It is noteworthy that applicant attached the
re-arrangement order. This, in my view, is adequate compliance with
the Rules.
[16] Paragraph 6 on page 9 of the paginated papers
reveals that respondents in the months referred to therein failed to
honour the
re-arrangement agreement to the extent shown therein.
[17] It is clear from paragraph 9 on page 10 of the
papers that as at 6 March 2015 the respondents were in arrears with
their payments
in an amount of R94 541.30. This has not been denied.
All the deponent to the opposing affidavit says in paragraph 3.2 on
page
62 of the papers is as follows:
"Although I did not make payments for certain
months, this due to industrial action in the mining industry which
resulted in
me not receiving any salary, I did make additional
payments in subsequent months to catch up
(sic)
the payments
which had been skipped due to circumstances beyond my control. In
confirmation of the aforesaid I attach here with
(sic),
as
Annexure AM2, a creditor statement from my debt counsellor which
clearly indicates the additional payments.
[18] Paragraph 3.2 reveals the concession of non-payment
made by the deponent to the opposing affidavit. The paragraph fails
to
indicate the total additional payments that he made. The paragraph
fails to reveal if all the arrears have been paid and in fact
does
not deny that there are still arrears amounting to a substantial
amount. Annexure AM2 is more in line with the payment history
of the
deponent as revealed by applicant.
[19] It is noteworthy that respondents:
1.
do not
dispute that they applied for debt review;
2.
the debt
re-arrangement was granted by the court;
3.
they are in
arrears with their payments in terms of the debt re-arrangement
order; and
4.
that they do
not dispute the terms and conditions.
[20] A proper cause of action, in my view, has been
demonstrated by applicant which, in my view, is entitled to the order
sought.
[21] Respondents' only defence as demonstrated in the
papers is that the summons fails to comply with Rule 18(6) of the
Uniform
Rules of Court. This defence, as shown above, is without
merit. Mr Greef, for respondents, in any event, when arguing the
matter
conceded that it was common cause that there had been no
compliance with the debt re-arrangement order.
[22] Mr Greef submitted that there was a factual dispute
pertaining to the payments that first respondent made. The
submission,
in light of what I have said above, is not convincing and
lacks merit.
[23] I find nothing wrong with the simple summons as it
stands. Nothing has been advanced to show why the property should not
be
declared executable and why a writ of execution should not be
authorised.
[24] Applicant, in my view, has made out a case for the
order that it seeks. The application should succeed. I, as a result,
make
the following order:
1.
An order is
granted in terms of prayers 1, 2, 3, 4, 5 and 6 of application for
summary judgment dated 7 April 2015.
______________________
MW MSIMEKI
JUDGE OF THE GAUTENG DIVISION, PRETORIA
Heard on
: 19/06/2015
For the Applicant
: Adv J H
MOLLENTZE
Instructed by
: RAMSAY WEBBER
For the Respondents
: Adv F
GREEF
Instructed by
: GREEF &
VAN WYK ATTORNEYS
Date of Judgment
: