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[2016] ZAGPPHC 721
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Absa Bank v Joubert and Another (100/2016) [2016] ZAGPPHC 721 (1 April 2016)
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IN
THE HIGH COURT OF SOUTH AFRICA
NORTH
GAUTENG, PRETORIA
REPORTABLE
OF
INTEREST TO OTHER JUDGES
CASE
NO: 100/2016
DATE:
1 APRIL 2016
In
the matter between:
ABSA
BANK
Plaintiff
And
NICOLAS
JOHANNES
JOUBERT
First Defendant
ANDRE
JOUBERT
Second
Defendant
JUDGMENT
COLLIS
AJ
INTRODUCTION
[1]
The Plaintiff issued Summons against the
First and Second Defendants suing them jointly
for:
a)
Payment of the amount of R718 980, 86;
b)
Interest on the amount of R718 980, 86 at the rate of 9.50% per annum
from 4 August 2015 to date of payment,
the said interest to be
calculated and capitalised monthly;
c)
An order declaring the property known as: Portion 13 of Erf [......
M. T.], Registration Division J.R,
Gauteng Province measuring 1018
(One Thousand and Eighteen) square metres and held by Defendants in
terms of Deed of transfer NR
T95498/1998 (''the immovable property")
specially executable;
d)
Costs as between Attorney and Client to be taxed;
e)
Further and or alternative relief;
f)
That the Plaintiff/Registrar be authorised to
issue a writ
of execution against the
immovable property referred to in prayer (c) above, to give effect to
the order granted in terms
of prayer (c) above.
[2]
Pursuant to the Summons being served on the Defendants they entered
an appearance to defend the action whereupon the Plaintiff
applied
for summary judgment within the ambit of Rule 32 of the Rules of
Court.
BACKGROUND
[3]
The Plaintiff as per the Summons pleads that, it together with the
Defendants entered into loan agreements and mortgage bond
agreement.
In terms of the agreements, bank facilities were granted by the
Plaintiff to the Defendants, in terms whereof monies
were from time
to time lent and advanced by the
Plaintiff to the
Defendants.
[4]
The Defendants in terms of Mortgage Bond NR's B768051/1998 and
B7703/2003 mortgaged the property known as Portion 13 of Erf
[......
M. T.], Registration Division J.R. Gauteng Province, to the Plaintiff
as continuing covering security for each and every
sum, in which the
Defendants may from time to time become indebted to the Plaintiff,
from any cause whatsoever.
[5]
The agreements further provide that the outstanding amount shall be
due and payable on demand. The Plaintiff alleges that notwithstanding
proper demand for payment, the Defendants have failed to make payment
of the amount claimed by the Plaintiff, therefore the amount
and
interest have become due and payable.
[6]
With reference to the agreements, the Plaintiff pleads that on 28
August 2009 a fire broke out at the premises of Docufile a
company
that handles document management for ABSA. The Plaintiff believes
that the mortgage loan agreements were probably destroyed
in the
abovementioned fire. The Plaintiff further confirms that it is
currently not in possession of the mortgage loan agreements
and that
to its knowledge no copies of the loan agreements in respect of the
covering bonds exist.
[7]
Rule 32(3)(b) sets
out,
that
a
Defendant
shall on affidavit 'disclose' fully
the
nature
and
the
grounds
of
the
defence
and
the material facts
relied
upon therefore.
[1]
The
nature
of
his
defence relates to
the
character
or
kind
of
defence
and
the
grounds
refers
to
the
facts
upon
which
the
defence
is
based.
Thus
in
order
to
meet
the
requirements
laid
down
in
the sub-rule there must be a sufficiently full disclosure
of
the material
facts
to persuade
the
court that what the
Defendant
has
alleged,
if
it
is
proved
at
trial,
will
constitute
a
defence to the Plaintiff's claim.
[8]
A
court
has
a
discretion
in
granting
summary
judgement and
that
discretion
should
be
exercised
based
on
the material
facts
and the allegations
presented
by
the
Defendants
to
the
court.
If
the
Defendants
fail
to
take
the
court
into
their
confidence,
the
court
should exercise that discretion against the Defendants.
[2]
THE
DEFENCES
[9]
The Defendants, in resisting the summary judgement application, filed
affidavits which disclosed the following defences:
9.1
a denial that any written agreements were ever concluded between
the
parties;
9.2
a denial that monies were payable on demand, in view of the nature
of
the account namely a private cheque account which was used as an
investment account having been concluded between the parties;
9.3
the Defendants deny that a demand as alleged by the Plaintiff
was
made;
9.4
they further deny that the section 129 notice is valid and
that the
Plaintiff is entitled to take legal action against the Defendants in
terms of the National Credit Act; and
9.5
lastly they contend that failure by the Plaintiff to
attach the
mortgage loan agreements is to their prejudice.
[10]
In addition to the defences set out above the Defendants had also
raised two further
points
in
limine
but both these points were abandoned at the hearing of the
application.
ISSUES
TO BE DECIDED
[11]
During argument it became apparent that this court was called upon to
decide three aspects, namely:
a)
having regard to the terms of the agreements (which have been
destroyed), what did the parties agree regarding
how a demand would
be made?
b)
whether a proper demand was in fact made by the Plaintiff? and
c)
whether
the Plaintiff has complied with the provisions
of
section 129
of
the
National
Credit
Act
[3]
?
What
did the parties agree regarding how a demand would be made?
[12]
Paragraph 4 of
the
Summons
reads
as
follows
[4]
:
'The
agreements referred to above, inter alia, provides that the
outstanding amount will be due and payable on demand Defendants
have
notwithstanding proper demand for payment,
failed to make payment
of
the amount
claimed
to
Plaintiff wherefore the
amount and interest
as
set out i
n
paragraph 2
above
have
become
due
and
payable.
'
[13]
The Plaintiff alleges that no copies of the mortgage loan agreements
are available as it was destroyed in a fire at the premises
of
Docufile. As for the Mortgage Bond agreements annexed to the Summons
as annexures "B" and "C", paragraph
6 thereof
provides as follows:
'TERUGBETALING
Die
Verbandgewer moet alle bedrae wat deur hom aan die bank verskuldig is
en wat kragtens hierdie verband verseker is, ooreenkomstig
die
bepalings van sodanige skrifte/ike ooreenkoms of ooreenkomste as wat
tussen die Verbandgewer en die Bank aangegaan is of wat
van tyd tot
tyd hierna aangegaan mag word terugbetaal.'
[14]
On
the
Defendants'
version
the First Defendant
was
granted
overdraft
facilities
in
terms
of
which
this account would
be
serviced by making deposits into
the
account as
and
when Plaintiff would
require
payments
to
be
made
[5]
.
[15]
In paragraph 7.4.3 of the opposing affidavit, the first Defendant
sets out all payments made in servicing the account. These
payments
were made in response to telephonic requests from employees of the
Plaintiff. In this regard the first Defendant refers
the court to
annexure "NJl" to his opposing affidavit, setting out a
payment history for 2015.
[16]
The
Defendants
contend
that
they
were
required
to
service
the
account
by
making
payment,
upon
demand
for
payment
by
the
Plaintiff.
They further contend that
the
underlying agreements do
not
contain
acceleration
clauses
for
the
payment
of
the
full
outstanding
amount.
[6]
Absent
from the affidavits filed
by
the Defendants is a denial that the agreements in their
possession, that is if they are in possession
of
any; do not contain
such
a term.
If
this
indeed
had
been
the
position
it
begs
the
question
why
the
Defendants would
omit
to present
their
copies of the underlying
mortgage
loan
agreements before this court to depict the omission
of
such
a
clause.
[17]
In addition to what has been set out above, it would make no business
sense for a financial institution such as the Plaintiff
to demand the
full outstanding amount from clients who have been servicing, on the
Defendants' version, their overdraft
account religiously.
[18]
As a consequence I cannot conclude otherwise than that the agreement
reached between the parties, in respect of the servicing
of the
account, was that it was to take place as and when a demand for
payment was made by the Plaintiff to the Defendant.
Whether
a proper demand was in fact made by the Plaintiff?
[19]
The Plaintiff as per paragraph 4 of the Summons, alleges that despite
a proper demand for payment the Defendants have failed
to make
payment of the amount claimed by the Plaintiff. In paragraph 5 of the
Summons the Plaintiff further pleads that on 3 September
2015 and 14
December 2015 respectively, it dispatched by registered mail to the
Defendants, notices in terms of Section 129 (1)
(a) of
the National Credit Act.
[20]
The Defendants do not deny receipt of the Section 129 notices. What
they contend is that the Plaintiff did not dispatch any
demand prior
to dispatching the 129 notices. They however, fail to indicate why a
prior written demand for payment was required
before the 129 notice
could be dispatched. They do not allege that the underlying
agreements provide for same nor do they allege
that upon receipt of
the section 129 notices what steps were taken by them to ascertain
the amount by which their account had been
in default. In the absence
thereof this contention by the Defendants on this part at best can be
described as scatchy and bold
and at the very least opportunistic.
[21]
E
x
facie
annexures "D" and "E",
to the Summons, it is stipulated in paragraph 3 thereof that the
Defendants were in default
under the credit agreement, due to their
failure to make payments of the outstanding amount on demand.
Whether
the Plaintiff has complied with the provisions of Section 129 of the
National Credit Act?
[22]
Section 129 of the National Credit Act provides as follows:-
'(1)
If
the consumer is in default under a credit agreement,
the
credit
prov
i
der a)
may draw
the default to the notice of the
consumer
in writing and propose
that the
consumer refer the credit
agreement
to a
debt counsellor
or alternative
despite
resolution
agent,
consumer
court
or
ombud
with
jurisdiction
with the intent that the
parties
resolve any
dispute under
the agreement or develop and agree on a plan
to bring
the
payments
under the agreement
up to dat
e
..
.
. '
[23]
As mentioned in paragraph 21
supra,
the respective section 129
notices were annexed to the Summons as annexure "D" and
"E". Upon closer inspection
of these annexures they fail to
mention the amount by which the Defendants were in default. This is
precisely the point taken by
the Defendants in paragraph 7.5.2. of
the opposing affidavit. Therein they contend that a demand for
payment of the full outstanding
amount cannot take place if the
consumer was not afforded an opportunity to bring the arear payments
up to date. It follows that
they ought to have been informed as to
what were those arrear amounts.
[24]
The mere dealing with the default and the proposal component in the
section 129(1)(a) notices is not sufficient. The purpose
of the
notice is to ensure compliance by the credit provider with the
procedure prescribed in section 129(1)(a), as part of the
required
procedure before debt enforcement. If a consumer who receives a
section 129(1)(a) notice fails to react to it the credit
provider is
entitled, subject to meeting any further requirements set out in
section 130, to proceed with debt enforcement.
[25]
The failure on the part of the Plaintiff to inform the
consumers/Defendants of the amount by which the credit agreement was
in default, deprived them of an opportunity to adequately take steps
as envisaged in section 129. It is for this reason that I
cannot
conclude that the Plaintiff has complied with the provisions of
Section 129.
ORDER
[26]
In the result the following order is made:
26.1
The application for summary judgement is postponed
sine
die;
26.2
The Plaintiff shall, within 10 court days hereof, dispatch a further
section 129(l)(a)
notice to the consumers (Defendants), which should
contain the following additional warnings, namely:
a)
'Informing the Defendants of the fact that an action has already been
instituted against the consumers, the relevant
case number and the
fact that a summary judgement application has been postponed
sine
die;
b)
The details of the current arrear amount; and
c)
The fact that the consumers rights in terms of the National Credit
Act, and specifically
the rights
contemplated in section 129(1)(a) remain unaffected by
the action that has already been instituted.'
26.3
Costs reserved.
____________________________
C
J COLLIS
Acting
Judge of the High Court
Appearances
as follows:
Counsel
for Plaintiff:
Adv. R J Groenewald
Instructed
by:
Van Zyl le Roux Inc.
Counsel
for Defendants: Adv. J Viljoen
Instructed
by:
N J Van Rensburg Attorneys
Date
of Hearing:
11 March 2016
Date
of Judgment:
01 April
2016
[1]
See
in
this
regard
PCL Consulting (Ply)
Ltd
t/a
Phillips
Consulting SA
v
Tressa
Trading 119
(Ply)
Ltd
[2]
Breytenbach v Fiat SA (Edms) Bpk.
1979
(2)
SA 226
(T) at 229 F.
[3]
Act 34 of 2005
[4]
See
in
this
regard
Index
page
4
[5]
See
first
Defendant's
opposing affidavit page 42
para
4.3
[6]
See opposing affidavit by First Defendant page 42 paragraph 4.3