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[2016] ZAGPPHC 837
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Standard Bank of South Africa Limited v Toerien (91022/2015) [2016] ZAGPPHC 837 (31 March 2016)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
HIGH
COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
Not
reportable
Not
of interest to other Judges
CASE
NO :91022/15
DATE:
31/3/16
In
the matter between:
THE
STANDARD BANK OF SOUTH AFRICA
LIMITED
…........
Applicant
and
TREVOR
KEITH
TOERIEN
…...
Respondent
J
U D G M E N T
MAKGOKA,
J
[1]
This is an opposed application for summary judgment. The applicant
issued a simple summons against the defendant for payment
of R1 217
516.72. The plaintiff also seeks interest on the above amount, costs
as between attorney and client, as well as an order
declaring the
defendant's immovable property specially executable, and for the
authorization of execution against the immovable
property. The
plaintiff's action is in respect of monies lent and advanced to the
defendant in terms of a home loan agreement concluded
between the
parties on 30 April 2010. The loan was secured by a mortgage bond
registered over the defendant's property situated
at erf [1…]
South Kensington, Johannesburg, in favour of the plaintiff. The
provisions of the home loan agreement are subject
to the National
Credit Act 34 of 2005 (the Act).
[2]
The plaintiff alleges that the defendant had failed to pay the
monthly installments due in terms of the home loan agreement
read
with the provisions of mortgage bond. The monthly repayment in terms
of the mortgage bond was R12 465.38. The plaintiff alleges
that as at
15 October 2015, the defendant was R83 960.91 in arrears In support
of the defendant's alleged indebtedness, the plaintiff
has attached
to its summons, a certificate of balance signed by its manager,
reflecting the claimed amount. Consequently, the plaintiff
alleges
that the defendant is in breach of the agreement and the mortgage
bond, which entitles it to claim the full balance owing
under the
mortgage bond.
[3]
There
is
no dispute
about
any
of the
relevant
formalities
required
by the
Act,
the
Constitution
[1]
and
the
Uniform
Rules
of
Court. Two
notices
in terms
of
s
129 of
the Act
were
sent
on 22 October
2015
and
delivered
to the
defendant
on 25
October
2015
and
16 October
2015,
respectively.
The
defendant's
attention
was
also
drawn
to
the
provisions
of ss 26
(1) and 26 (3) of the
Constitution,
as well
as those
of
Rule 46 (1)
of the Uniform Rules of
Court.
[4]
The defendant represents himself. He delivered a notice of intention
to defend on 20 November 2015. This was followed by an
application
for summary judgment. The defendant filed a number of documents,
amongst which, are documents titled 'Response to Summons-
Acceptance'
and 'Truth Affidavit of Peace Declaration'. The former document is
prefaced with a long list of definitions of various
legal concepts,
mostly found in the Bills of Exchange Act 34 of 1964. To avoid mis-
characterization of the contents of the defendant's
documents by
attempting to summarise or paraphrase them, I intend to quote
liberally from both documents. At the end of a long
preface to the
document titled 'Response to Summons - Acceptance', the defendant
states the following:
'I
come in Peace, by special visitation, I am Trevor of the House
Toerien, a living, breathing sentient Man, the undersigned and
secured party, a private attorney authorized by another, to act in
the place instead for the alleged debtor, herein referred to
as the
defendant. The defendant in this action see annexure "A"
for the particular purpose and particular act to contract
the matter
relating to case number 2015.91022, through the transaction of
business in general not of a legal character.
There
is no dispute with any of the facts in the instant matter. The facts
of this case and all
charges,
offers, dishonours are accepted for value and returned in exchange
for fair settlement and closure, by exercising the rights
as provided
for in Public Policy, the Bill of Exchange Act, Act 34 of 1964 as
amended by Act 56 of 2000. Accepting the full amount
allegedly
outstanding, due, owed and payable specifically in terms of section 9
of Act 56 of 2000, which substituted section 25
of the principal Act:
Holder
for value
"A holder takes a Bill for value if he
takes it under onerous title".
I
did not find a cheque or replemond bond enclosed in the attorney for
plaintiff Haasbroek & Boezaart, offer, summons case no.
2015191022, date-stamped 2015-11-11, served on the defendant.
Therefore
the contract on the implied agreement, evidenced by the Certificate
of Balance
dated
15 October 2015 and signed by the private Woman Tamlyn Wells acting
on the roll for and on behalf of the Plaintiff as Manager-Home
Loans,
Personal and Business Credit is executed in terms of section 19 of
the Bills of Exchange Act
34 o
f
1964, annexure "B" and with delivery the acceptance to
become complete and irrevocable, in order to discharge any liens
against the defendant.
By
redeeming the now valuable negotiable instrument, annexure "B"
in the same manner the respondent would pay all cheques,
Promissory
Notes, Bills of exchange, other Negotiable Instruments in order to
stay in honour in terms of the public policy as expressed
and
provided for in the Banks Act, Act 94 of 1990, as amended and
previously, the Deposit Taking lnstttutions Act which provides
for
the regulation and supervision of the business of public companies
taking depostts from the public.
Please
adjust the account for the bonds, proceeds, products accounts and
fixtures and
release:
The
order(s) of the court The original Title Deed thereafter to me
immediately, to the following address exactly as provided."
[5]
In the document titled 'Truth Affidavit of Peace Declaration' the
defendant states the following:
"I,
Trevor of the House Toerien, Agent for TREVOR KEITH TOERIEN,
Exemption [ID 6…] being of sound mind, over the age
of 21
years, have first-hand knowledge of the facts stated herein as a
Peace Affidavit. I will tell my truth, my whole truth and
nothing but
my truth under the pains and penalties of perjury.I am not a created
entity, a corporation, a British Commonwealth
subjects, a citizen of
the corporation of the Republic of South Africa [see Annexure "Z"]
subject to the jurisdiction
of the corporation of the Republic of
South Africa, a resident, citizen or subject of any territory, a
citizen nor a resident in
any country or land.
I,
Trevor of the House Toerien, am a child of my Creator, an heir of the
King, Yashua and therefore my citizenship is in Heaven,
while having
a physical 30 animated flesh and Blood Body, a sojourner on the soil
or land of this earth.
I
am a sojourner of the surveyed geographical area of the land mass on
the Southern Point of Africa, commonly known as South Africa.
My
Creator, who created the Universe and owns all land is Sovereign, and
I am Sovereign.
The
corporation known as the Republic of South Africa, and the Government
of South Africa, are both fictitious constructs' of the
imagination
of Wo/Man which revenued and incorporated 'citizens' as corporate
fiction trust, each with its own account, with the
institution of
Birth Certificates. Fictitious creations will never rule any Flesh
and Blood Woman or Man. Pursuant to the Maxim
"Fiction can rise
from Law but Law cannot rise from fiction" are statutes not Law
but legislation to regulate and control
fictitious constructs like
corporations and not Woman and Men, whereas the conduct of
interaction between Flesh and Blood Woman
and Men are regulated by
Natural Law and the Law of the Creator, Common Law and Customary Law.
Nuno
Pro Tune,
the Birth Certificate [Birth Bond] created for Trevor
Keith Toerien, as a
'citizen'
employee of the RSA corporations or any derivative thereof, is by
this Peace Treaty declared to be the soul property for
the benefit of
its only contributing beneficiary Trevor of the House Toerien whose
infinite value is the only source of value for
the trust; where
Trevor of the House Toerien shall from this day forth be recognized
by all Agents of the corporation known as
the Republic of South
Africa, and Government of the Republic of South Africa as the only
Administrator and Director of the trust
and the corporation known as
the Republic of South Africa shall under the Directorship of Trevor
of the House Toerien be held liable
as trustee.
I,
Trevor of the House Toerien, hereby declare a Peace Treaty with the
trustee of his/her
Birth
Trust, the corporations registered as the Republic of South Africa. I
am a natural born soul on the land South Africa, a sojourner
of the
land South Africa, a South African National, where the land will
forever belong to the Women and Men by Natural Law.
From
this day forward, I, Trevor: Toerien, will live at peace with the
corporations the Republic of South Africa and the Government
of the
Republic of South Africa, and its territories and anyone dealing in
commerce.
This
declaration of Peace is
nunc pro tune
as of the Trading with
the Enemy Act of 1916. I
have
never been at war with anyone or any nation and I am at peace with
all men, all governments, all Kings and queens and anyone
who would
profess to be my enemy. My Creator has declared Peace with the one
people, men and women and therefore I am at peace
with the one
people, men and women.
Matthew
5:9
Blessed are
the
peacemakers:
for
they shall
be called the
children of God.
10: Blessed are they which are
persecuted for righteousness' sake: for theirs is the Kingdom of
heaven. 11: Blessed are ye, when
men shall revile you, persecute you,
and shall say
all manner of evil against you falsely
for my sake.
King James Bible 1611.
I,
Trevor of the House Toerien, hereby declare a Peace Treaty with the
Republic of South
Africa.
Women and men are created by the Creator as Sovereign, Living Souls
with inherent rights to life, Liberty, Property and
happiness.
Peace,
Peace, Peace be unto all men and women in this world. Self-defence is
a right given by the Creator, to all of his creatures
including Women
and Men, but as much as I can, I will live at peace with all Men and
Women.
This
Peace Treaty was prepared by Trevor of the house Toerien on this 07
th
day on
November,
2015 and if un-rebutted within thirty (30) days is
nuno pro tune
to 1916.'
[6]
Rule 32(3)(b) of the Uniform Rules of Court affords a mechanism for a
defendant faced with an application for summary judgment.
It
provides:
'Upon
the hearing of an application for summary judgment the defendant may
...satisfy the court by affidavit ...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 thereof.'
[7]
The authorities have over centuries held that in order to stave off
summary judgment, the defendant has to disclose a
bona fide
defence. This means a defence set up
bona fide
or
honestly, which if proved at the trial, would constitute a defence to
the plaintiff s claim
( Bentley Maudesley
& Co.
Ltd v
"Carburol"( Pty) Ltd
and
Another
1949
(4) SA 873
(C);
Lombard v Van der Westhuizen
1953 (4) SA 84
(C) at
88).
[8]
The plaintiff contends that none of the documents field by the
defendant meets the requirements of rule 32(3)(b) referred to
above,
and accordingly, do
not
disclose a
bona
fide
defence.
I
must
confess that I
am not
certain
what the
import of the defendant's defence is. It seems that he contends that
the mortgage
bond
attached
to
the
plaintiffs
summons
is a
negotiable
instrument
and that
the
Bills
of Exchange
Act is
applicable
to
the
mortgage bond.
According
to
the
defendant,
the plaintiff did not
comply with
the provisions of the Bills
of Exchange
Act by
failing
to attach a
cheque or replemond bond. If that be the defendant's case, there is
no merit in
it.
A mortgage
bond is
not
a
negotiable instrument
[2]
the
Bills
of
Exchange
Act
is not applicable in this matter.
[9]
The defendant has raised no defence at all, to the plaintiff's
summons. The plaintiff is therefore entitled to summary judgment.
The
defendant's so-called affidavit is disjointed, incoherent, and
incomprehensible. I am quite aware of the 'drastic' nature of
the
remedy of summary judgment as it allows judgment to be entered
against a defendant without evidence. On the other hand, the
court
would be remiss in its duties if unmeritorious defences, clearly
devoid of any
bona
fides,
stand in the way of a
plaintiff who is clearly entitled to relief.
[10]
The ever-increasing perception that any defence, whatever its merits,
is sufficient to stave off summary judgment, is misplaced
and not
supported by the trite
general
principles developed over many decades. See for example the
well-known decision of
Maharaj v Barclays National Bank Ltd
(supra). See also generally,
Herb Dyers (Pty) Ltd v Mohamed
and Another
1965 (1) 31 (T) at 31H-32A-B;
Caltex Oil (SA) Ltd
v Webb and Another
1965 (2) SA 914
(N)
AT 9160-H;
Arend and Another v Astra Furnishers (Pfy) Ltd
1974
(1) SA (C) at 303F-H;
Shepstone v Shepstone
1974 (2) 462
(N)
at 467A-H and
Breytenbach v Fiat
SA
(Edms) Bpk
1976
(2) 226 (T).
[11]
Recently the Supreme Court of Appeal (the SCA) restated the purpose
of summary judgment procedure in
Joob Joob Investments (Ply) Ltd v
Stocks Mavundla Zek Joint Venture
2009 (5) SA 1
(SCA). At
paras 31 and 33 the following is stated:
'[31]
[l]t was intended to prevent sham defences from defeating the rights
of parties by
delay,
and at the same time causing great loss to plaintiffs who were
endeavouring to enforce their rights.
[33]
Having regard to its purpose and its proper application, summary
judgment proceedings do not hold terrors and are 'drastic'
for a
defendant who has no defence.
Perhaps
the time has come to discard these labels and to concentrate rather
on the proper application of the rule, as set out with
customary
clarity and elegance by Corbett JA in the
Maharaj
case at
425G-426E.'
[12]
In the result judgment is granted against the defendant for:
1.
Payment of the amount of R1 217 616, 72;
2.
Interest on the above amount at the rate of 9,36% per annum with
effect from 15 October 2015 to date of payment, both days inclusive;
3.
An order declaring specially executable -
ERF
[1…] SOUTH KENSINGTON TOWNSHIP
REGISTRATION
DIVISION: I.R., THE PROVINCE OF GAUTENG
MEASURING
991 SQUARE METRES
HELD
BY DEED OF TRANSFER NO. T [14…/2010]
4.
The Registrar to issue a Warrant of Execution against Immovable
Property mentioned in paragraph 3 above, in terms of Rule 46(1)
of
the Uniform Rules of Court;
5.
Costs to be taxed as between attorney and client.
_______________
J.M.
Makgoka
Judge
of the High Court
Date
of hearing: 23 February 2016
Date
of Judgment: 31 March 2016
For
the Plaintiff:
......
Adv. SM Maritz
Instructed
by:
.........
Haasbroek & Boezaart
Inc.. Pretoria.
The
Defendant in person.
[1]
Constitution of the Republic of South Africa Act, 1996.
[2]
LAWSA, Vol 17 2ed, 329