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[2016] ZAGPPHC 342
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Absa Bank Limited v Msibi (29963/2015) [2016] ZAGPPHC 342 (14 March 2016)
SAFLII
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Certain
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IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
CASE
NO: 29963/2015
DATE: 14 MARCH 2016
In the matter between:
ABSA BANK
LIMITED
..............................................................................................................
Plaintiff
And
DOCTOR NDLONDLO
MSIBI
..............................................................................................
Defendant
JUDGEMENT
FRANCIS J
1... The plaintiff instituted an
action against the defendant arising out of a mortgage loan agreement
that was entered between
the parties. The plaintiff contends that the
defendant has breached the agreement by having failed to make regular
payments. It
sought the following relief against the defendant:
1.1
Payment of the amount of R523 433.91
together with the interest at the rate of 7.7% per annum on the
aforesaid amount;
1.2
An order t
hat the property, being
[Erf 1….. P…… V….. R…..
Ext 2 Township
]
, Registration Division
J.R., Gauteng Province held by the defendant under D
eed of
Transfer No. [T……..]
, be declared
executable;
1.
3
An order in terms of Rule 46 for the issuing of a warrant of
execution against the immovable property to obtain an attachment
over
the property and an ultimate sale in execution; and 1A Costs of suit
on a scale as between attorney and client.
2.
After the defendant had entered an
appearance to defend, the plaintiff brought an application for
summary judgment against the defendant
for the relief set out above.
The plaintiff contends that the defendant does not have a bona fide
defence to the claim and that
an appearance to defend has been
entered into solely for the purposes of delay.
3.
The defendant denied that it has entered
an appearance defend solely for the purposes of delay. He stated in
his affidavit resisting
summary judgment that he had applied for and
received a housing loan for R450 000.00 from the plaintiff during
2007. In the same
year, he had also applied for and was granted a
second housing loan for R300 000.00 from the plaintiff. The initial
repayments
on the loans were drawn through a debit order on his bank
account. The plaintiff unilaterally took back R160 000.00 out of his
bank account on 18 July 2007 of the second loan amount without
advising him on what basis it do so. With effect from June 2008 the
plaintiff wrongfully started deducting an amount of approximately R1
200.00 per month out of his bank account, without his permission
or
authorisation. When he made enquiries about the reason for the
deductions, he was told that the amounts were for insurance on
his
motor vehicle. Those acts of the plaintiff according to the defendant
were in breach of the agreements and led to a total breakdown
of the
relationship between the
parties.
He then decided to close the bank account that he held with the
plaintiff since large sums of monies had been drawn against
the
account by the plaintiff without his consent.
4.
The defendant stated that the plaintiff
breached the second loan agreement by
unilaterally
withdrawing the amount of R160 000.00 from the amount of R300 000.00
it had advanced to him, out of his bank account
without his
permission and/or authorisation. The conduct of the plaintiff
aforesaid, affected the terms and conditions of the loan
agreement
and cannot rely on an agreement that it breached. The amount of the
instalments payment on the loan agreement was charged
by the
recalling of the funds which had been advanced to him. From 1
st
March 2008 to 28 February 2009, the plaintiff added an amount of R174
188.00 to his loan account as ‘advances’. This
amount was
a part-payment of the R300 000.00 loan amount, but the plaintiff only
advanced it a year after the mortgage bond was
registered. The
defendant attached a copy of a statement that was issued on 28
February 2009, which shows ‘advances* in the
amount of R174
188.00 on his loan account, marked as annexure ‘DNM1’. He
denied that he was indebted to the plaintiff
as set out in the
particulars of claim and said that the plaintiff has included amounts
on the claim that he is not liable for.
He further attached a copy of
the statement of the loan account dated 31 May 2008 as annexure
‘DNM2’ where the total
loan amount was given as R749
999.00. On annexure DNM1, the total loan amount has decreased to R598
839.00 due to the wrongful
deduction made by the plaintiff from his
bank account.
5.
It is trite that a defendant who wishes
to oppose and application for summary judgment, must fully disclose
the nature and the grounds
of his defence and satisfy the court that
there is a bona fide defence to the plaintiff s claim. The
defendant’s opposing
affidavit is not to be assessed with the
precision of a plea and a less technical interpretation is to be
applied to the opposing
affidavit than to a pleading. The defendant
is also not obliged to disclose all of his defences in the opposing
affidavit. The
court must ascertain from the content of the affidavit
itself what the defendant actually intended to say. He must disclose
the
grounds upon which he disputes the plaintiffs claim with
reference to the material facts underlying the disputes raised.
6.
It was contended on behalf of the
plaintiff that the defendant has failed to set out facts that shows
that he had a bona fide defence.
It was further contended that the
defendant's opposing affidavit was vague, sketchy and laconic.
7.
It is clear from the facts stated in the
defendant’s affidavit resisting summary judgment that one of
the defences raised
by the defendant is that the plaintiff has
breached the loan agreement that was entered between the parties.
Facts are given in
support of this contention. It is not my task at
this stage to examine this in great detail and all that I am required
to do is
to ask whether on the facts presented that the defendant has
disclosed that he has an arguable defence and that leave should be
granted. The defendant has not filed a simple denial but went further
and has set out his defence.
8.
There are a number of discrepancies in
the particulars of claim about what the arrear amount is that the
defendant was in arrears
with. For example in paragraph 15.5 it is
stated that the defendant remained in arrears with his obligation and
the total arrears
(on 28 April 2015) was R20 780.72 for 3.952 months.
The statement as at 1 April 2015 reflects that the balance was R26
080.71 which
is the same amount that is reflected in the section 129
letter dated 2 April 2015.
9.
The defendant stated that the plaintiff
has breached the loan agreement. He referred to two statements that
show different amounts.
The first statement is dated 31 May 2008 and
shows the total loan amount as R749 999.00. The statement dated 28
February 2009 shows
the loan amount as R598 839.00 and the balance as
at 28 February 2009 is R594 624.89. He has also denied that he is
indebted to
the plaintiff in the amount claimed.
10.
After a careful consideration of the
particulars of claim, and the affidavit resisting summary judgment, I
am satisfied that the
defendant has an arguable defence and that he
should be granted leave to defend. His defence will then properly
adjudicated in
a trial in due course.
11.
In the circumstances I make the
following order:
11.1
The defendant is granted leave to defend
the action.
11.2
Costs are costs in the main action.
FRANCIS J
JUDGE
OF HIGH COURT GAUTENG LOCAL DIVISION
FOR
PLAINTIFF:
M JACOBS INSTRUCTED BY NASIMA
KHAN
INC
FOR
DEFENDANT
CM RAMAKGAPHOLA INSTRUCTED BY
KP
SEABI & ASSOCIATES
DATE
OF
HEARING:
12 FEBRUARY 2016
DATE
OF
JUDGMENT:
14 MARCH 2016