About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: North Gauteng High Court, Pretoria
SAFLII
>>
Databases
>>
South Africa: North Gauteng High Court, Pretoria
>>
2016
>>
[2016] ZAGPPHC 659
|
|
Steenkamp v Facebook Properties CC and Another (16170/2016) [2016] ZAGPPHC 659 (26 July 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
IN
THE
HIGH
COURT
OF
SOUTH
AFRICA
(GAUTENG DIVISION,
PRETORIA)
NOT REPORTABLE
NOT OF INTEREST
TO OTHER JUDGES
REVISED
Case
number: 16170/2016
Date:
26
JULY 2016
In the matter between:
ALEXIS HENRY STEENKAMP
APPLICANT
And
FACEBOOK PROPERTIES
CC FIRST
RESPONDENT
RUDOLF ALBERTUS SMITH
SECOND
RESPONDENT
JUDGMENT
PRETORIUS
J
,
INTRODUCTION:
(1)
In
this
application for summary judgment the applicant seeks summary judgment
against the respondents, jointly and
severally, for the amount of
R500 000 plus interest, as well as an order declaring the immovable
property of the first respondent
specially executable. The applicant
holds a mortgage bond over the property of the first respondent
by reason of R500 000 lent and
advanced to the first respondent by
the applicant. The second
respondent bound himself as surety and co-principle debtor jointly
and severally with first respondent
for
the amount of money so
advanced. The court granted condonation for the late filing of the
opposing affidavit.
POINT
IN
LIMIN
E:
(2)
The respondents raised a
point
in limine
to
the effect that
the
respondents had not been placed in
mora
as stipulated by the
acknowledgement of debt. The court was referred to clause 8 of
the acknowledgement of debt
which
provides:
"In the event of
my failing to make any payment promptly on due date, the creditor
shall have the right to demand the
immediate payment of the total
amount owing to him. I further accept that in such circumstances I
shall be liable for the
payment of all legal fees on the attorney
and client scale of costs, including collection commission,
incurred by the creditor
in demanding and enforcing compliance
with my obligations in terms hereof."
It is abundantly clear that this clause grants the
applicant the right to demand immediate payment and not that a letter
of demand
must be issued.
(3) The provisions
of clause 9 provides:
"I further agree that in the event of my failing
to carry out the terms on this offer, the creditor shall be entitled,
without
notice to me, to apply for judgement for the full amount of
the debt outstanding, including costs and interest referred to in
paragraph
3, above."
It is thus clear that the
point
in limine
cannot succeed and is dismissed.
(4)
The second respondent
attempted to secure a bank guarantee to
the value of $150 000 in
Hong-Kong on behalf of the first respondent
for which he needed to pay
R500 000 as a once-off securing fee. As
a result of him needing the
R500 000 he entered into
the
acknowledgement of debt on behalf of the first respondent and
as surety.
AMOUNT
INCORRECT:
(5)
The respondents allege
that the full amount was not paid over to
them
as R22 000 was
deducted for the registration of the mortgage bond and an amount of
R100 000 paid to Mr Liebenberg as
"negotiating
co-
ordinator".
There is no supporting affidavit by Mr
Liebenberg and no proof that R22 000 had been deducted, apart from
the bold averments. In
any event clause 13 of the acknowledgement of
debt provides:
"I undertake to pay all costs relating to or
incidental to
the negotiating and drafting of this
agreement and the registration
of the aforesaid
Mortgage Bond and hereby authorise the
creditor to pay
KRUGER ATTORNEYS,
5
BOLERO PARK, KRUGER RAND GROVE, RICHARDS
BAY on presentation of their
Tax Invoice, directly from
the capital sum". It is clear that the second respondent bound
himself in his personal capacity
as
well
as
surety
and
co-principal
debtor
in
the
acknowledgement
of debt."
(6)
The respondents was
thus liable for the R22 000. The respondents acknowledged that R378
000 was paid to the first respondent and
the provisions of clause 13
make the respondents liable for the further R22 000. The only
remaining amount is the R100 000 paid
to
Mr Liebenberg. The respondents
are thus liable for at least R400
000.
(7)
The
respondents
seem to be remorseful for
securing
the
loan, as the further defence
is that the second respondent signed the acknowledgement of debt
under duress, as he was desperate
to
secure the bank
guarantee in Hong-Kong. The further submission is that the plaintiff
had unlawfully forced the second respondent
to sign the mortgage
bond on the first respondent's immovable property. There is no
evidence placed before the court as to how,
where and when the
second respondent was forced to sign the mortgage bond. There is no
evidence of duress at all and the court
cannot rely on these vague
and bald statements.
(8)
The
respondent must set out facts, which, if accepted as the
truth which
can be proved at trial with admissible evidence, disclose a defence.
See
Sumelar
Ontwikkelings (Pty) Ltd v HTF
Developers
(Pty) Ltd
[1]
:
"The question then arising is whether the
defence
so
put constitutes
a
bona fide defence within
the meaning of rule 32(3)(b) sufficient to resist the plaintiff's
claim for
summary judgment.
Will the facts
set out
by
the defendant, if proved at
trial, constitute
a
sufficient answer to the
plaintiff's
claim?"
(Court emphasis)
I cannot find in this
regard that the respondents have disclosed a
bona fide
defence
of duress and undue influence.
At
no stage does the second respondent aver that the respondents
do not owe the money.
SECTION 129 OF THE
NATIONAL CREDIT ACT ("NCA"):
(10)
It is common cause that
the applicant did not comply with
the provisions of the
NCA.
The respondents claim that
the provisions
of
the
NCA
applies
to the credit agreement between the parties, as principal lender as
well the second respondent due to the fact that
the
NCA
applies in his case as
surety.
(11)
In
Firstrand
Bank Ltd v Carl Beck
[2]
,
Satchwell
J
dealt
with this question in depth. I do not intend repeating her analysis
of the
NCA,
but
align myself fully with her findings in respect to the
NCA.
(12)
The
NCA
applies to every credit
agreement between parties made within the Republic of South Africa,
except for the exceptions
created by section 4 of the
NCA.
Section
4(1)(a)(i) and (b) provides:
"(1) Subject to
sections
5
and 6, this Act applies to every
credit
agreement between parties dealing at arm's length and
made
within, or
having an effect within, the Republic,
except-
(a)
a
credit
agreement in terms of which the consumer is-
(I)
a
juristic person
whose
asset
value or annual
turnover, together with the combined
asset
value or annual turnover of all related juristic persons,
at
the time the
a
greement is made, equals or exceeds the
threshold value determined by the Minister in terms of section 7 (1);
(ii)...
(iii)...
(b)
a
large
agreement,
as
described
in section
9
(4),
in
terms
of
which the consumer
is
a
juristic
person whose
asset
value
or annual turnover is, at the time the agreement
is made, below
the threshold value determined by
the Minister in
terms of section 7 (1);"
(Court
emphasis)
(13)
There is no doubt that
the first respondent is a juristic person and that a mortgage
agreement is both a credit transaction and
a
large agreement. In this
instance section 4(1)(b) applies. The court does not know the asset
value or annual turnover of the first
respondent
as it was not placed before the
court. Therefor section 4(1) (b) read
with section 9(4) of the
NCA
applies and exempts the applicant
from complying with the Act.
(14)
The surety, the second respondent, relies on the fact that
section 129 of the
NCA
should apply to him and that the applicant failed to send
the section 129 notification of the
NCA
notification to him.
(15) In the
acknowledgement of debt the second respondent set out that:
"/,
the
undersigned, RUDOLPH
ALBERTUS
SMIT
[IDENTITY NUMBER: 79…]
herein together with
my heirs, executors, administrators, or assigns in my personal
capacity
as surety and co-principal debtor
and
my successors in title in my capacity as
sole member
of FACEBOOK PROPERTIES
CC
REGISTRATION NUMBER:
2009/090602/23
together with
its order, successors in title and
assigns
(herein after
referred to
as the "debtor'?
hereby acknowledge myself and FACEBOOK PROPERTIES
CC
to be truly and lawfully indebted to:
ALEXIS HENRY STEENKAMP"
(Court emphasis)
(16)
Section
8(5) of the
NCA
provides:
"An agreement, irrespective of its form but not
including
an agreement contemplated in subsection (2),
constitutes
a
credit guarantee if, in terms of that agreement,
a
person undertakes
or promises to satisfy upon
demand any obligation of
another
consumer
in terms of
a
credit
facility or
a
credit
transaction to
which
this Act applies."
(17)
Due to the finding that the NCA does not
apply to the first
respondent,
there can be no doubt that it subsequently cannot apply to the
second respondent. The right to enforce the
acknowledgement of debt from the
second
respondent
arises
from the
contract
of suretyship, which relates to the
acknowledgement of debt. There was no credit
granted to the second respondent. In
Maasdorp
v Graaff-Reinet Board
of
Executors
[3]
,
De
Villiers
CJ
stated:
"It
has been said that she is
a
maker, because by her contract
on the
back of the note she has undertaken the liability of
a
co-principle
debtor
as
well
as
of surety, but,
as
was clearly
pointed out by the
Judge-President,
the use of the words "co- principle debtor'' does
not
transform her contract into any other
than surety."
(18)
Due to the second
respondent being the guarantor or surety, he is being sued as such
and not as a debtor and in this instance the
NCA
does
not apply to him as the principle debtor is exempt from the
NCA.
(19)
I
find
that the facts and
defences submitted by the respondents are not
bona
fide
defences, as the
respondents concede that at least an amount of R378 000 is owed by
them.
(20)
I have perused the
clauses setting out the interest payable by the respondents, but
find that in the present circumstances I am
not inclined to grant
the interest and will grant leave to defend the
amount
of interest.
(21)
Having considered all
the facts, decisions and arguments placed before me I make the
following order:
1.
The respondents are ordered to
pay, jointly and severally, to the applicant the sum of R400
000;
2.
The respondents are granted
leave to defend the amount of interest applicable on the aforesaid
sum;
3.
The
immovable property situated at[ ERF 5…], POLLACK
PARK TOWNSHIP, SPRINGS,
JOHANNESBURG, is declared
specially executable;
4.
The respondents are granted
leave to defend the balance of
the claim set out in the
notice of application, namely R100
000;
5.
The respondents are to pay the
applicant's cost of suit on
attorney and client scale, one
to pay the other to be
absolved.
Judge C Pretorius
Case
number
:
16170/2016
Matter heard
on
:
19
July
2016
For
the
Applicant : Adv JF Van der
Merwe
Instructed
by
:
Kruger
Attorneys
For the
Respondent :
Adv
Instructed
by
: De Meyer Serfontein Attorneys
Date of
Judgment
: 26 July
2016
[1]
2008(6) SA 650 (T) at 653A
[2]
2009(3) SA 384
(T)
[3]
(1906 -
1909) 3 Buch AC 482
at 490