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[2016] ZAGPPHC 895
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Absa Bank Limited v Coetzee and Another (33910/2009) [2016] ZAGPPHC 895 (29 September 2016)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
CASE
NO: 33910/2009
29/9/2016
Reportable:
No
Of
interest to other judges: No
Revised.
In
the matter between:
ABSA
BANK
LIMITED PLAINTIFF
And
COETZEE,
CHRISTOFFEL
FRANS
1
st
DEFENDANT
COETZEE,
ESTHER
2
nd
DEFENDANT
JUDGMENT
RAULINGA
J
[1]
In this matter, the defendant was declared over indebted and through
the process as envisaged by the
National Credit Act 34 of 2005
was
placed under debt review in terms of
Section 87
on 18 March 2008.
[2]
The plaintiff subsequently applied for a rescission of that order and
that application is still pending as it was (postponed
sine die).
[3]
The defendants are indebted to the plaintiff in terms of four
mortgage loans advanced by the plaintiff to the defendants. The
defendants failed to comply with their obligations in terms of the
mortgage loan agreements and/or mortgage bonds and to attend
to
payment of the agreed monthly instalment payments.
[4]
Accordingly and as a result of the aforesaid breach as well as the
defendants' failure to remedy the said breach, the plaintiff
caused
for legal action to have been instituted against the defendants for
payment of the monies lent and advanced as well as seeking
to have
the immovable property declared specially executable.
[5]
In essence the defendants in defence alleged that:
[5.1]
The estate of the first defendant at the stage when the plaintiff
enforced the debt was subjected to a debt review order as
provided
for in terms of
section 86(7)(c)(ii)
of the Act;
[5.2]
The first defendant applied for debt review on 28 February 2008 and
notice to this extent was provided to the plaintiff on
28 February
2008;
[5.3]
The first defendant's debt counsellor concluded an assessment and
found the first defendant to be over indebted and consequently
proceeded to in terms of
section 86(7)(c)(ii)
of the Act to issue a
proposal to restructure the first defendant debt repayments which was
provided to the plaintiff on 12 March
2008;
[5.4]
The plaintiff was notified of the first defendant's over indebtedness
on 12 March 2008. The plaintiff purportedly elected
not to oppose the
first defendant's debt review application and such an order
restructuring the first defendants debt was made
on 18 March 2008
("the debt review order");
[5.5]
The plaintiff in response to the debt restructuring order granted in
its absence, launched an application on 3 June 2008 to
have the said
order set aside;
[5.6]
The rescission application was postponed sine die in order to
facilitate settlement discussions between the parties. ABSA
never
proceeded with the rescission application due to the judgment in
Firstrand Bank Ltd v Fillis and Another
2010 (6) SA 565
(ECP) which
renders it superfluous;
[5.7]
The defendants admitted at all stages that they are in arrears with
the debt review order, but submitted that until the Court
Order for
Debt Review is set aside, the debt is not due and payable or
enforceable.
[5.8]
On 22 December 2008 the plaintiff caused for a notice in terms of
section 129 of the Act to have been forwarded to the applicants
which
notice according to the defendants was without force or effect by
virtue of the debt restructuring order;
[5.9]
A subsequent notice in terms of section 86(10) was delivered by the
plaintiff on 22 September 2008 was irregular and without
any legal
basis on the grounds that:
(a) The circumstances described in
section 88(3) of the Act had not been in existence at that stage and
as such the attempt to terminate
the debt review was without any
effect; and
(b) The first defendant had been
making payments in terms of the debt restructuring order;
[5.10]
The summons was instituted in the total disregard of the debt
restructuring.
[6]
At the commencement of the trial it was common cause;
6.1. The conclusion of the various
loan agreements as well as the registration of the subsequent
mortgage bonds;
6.2. That the monies provided for in
terms of the lending instruments referred to had indeed been advanced
to the defendants;
6.3. That the defendants were in
breach of their obligations as far as the loan agreements were
concerned more specifically the
payments terms provided; and
6.4. The defendants had failed to
remedy the aforesaid breach.
[7]
The action proceeded to adjudication by trial on 31 July 2012 and by
virtue of the limited issues raised by the defendants,
the plaintiff
closed its case after having led evidence in respect of the
certificate of balance only.
[8]
On behalf of the defendants Mr Francois Greeff the attorney of record
acting on behalf of the defendants and who is also the
debt
counsellor of the defendants, testified and, inter alia, under cross
examination conceded that;
8.1. a notice in terms of section 129
of the Act had been received by the first defendant prior to the
first defendant having approached
the debt counsellor;
8.2. in a letter dated 25 July 2008
marked as
Annexure "A1"
Mr Greeff confirmed that
notwithstanding the debt restructuring order having been granted on
18 March 2008, that no payments had
been received from the
defendants;
8.3. Mr Greeff on 11 August 2008 had
received the notice in terms of section 86(10) in terms whereof the
debt review of the first
defendant had been, terminated.
[9]
The history of this matter is that it was heard on the 31st of July
2013, and request for reasons in terms of rule 49(1) (c)
was done on
the 14th August 2013. Application for leave to appeal was filed on
the 22nd of July 2014 which is a year after the
trial of the matter.
All these only landed on my desk on 05 September 2016.
[10]
Be that as it may, this is now water under the bridge and I will
therefore proceed with the reasons for judgment.
[11]
The plaintiff's course of action as indicated is contained in the
declaration. The issue pertaining to pleadings was dealt
with in the
matter of
Du Toit obo Dikeni v Road Accident Fund
2016 (1) SA
367
(FB) and more especially the quotation on page 381, thus:
"The following principles
enunciated by
Far/am et al Erasmus Superior Court Practice
at
81/129 - 130 with reference to several authorities are instructive.
'the object of pleading is to define
the issues so as to enable the other party to know what case he has
to meet. The parties are,
therefore, limited to their pleadings: a
pleader cannot be allowed to direct the attention of the other party
to one issue, and
then at the trial attempt to canvas another.
However, since pleadings are made for the court it is the duty of the
court to determine
what are the real issues between the parties and,
provided no possible prejudice can be caused to either party, to
decide the case
on these real issues. The general principle is that
the parties will be held to the issues pleaded unless there has been
·
a full investigation of the matter falling outside the
pleadings.....'
See
also the decision in
Minister of Safety and Security v Slabbert
2010
(2) All SA 475
(SCA) where it was stated that a party
has a duty to allege in pleadings the material facts upon which it
relies. It is impermissible
for a plaintiff to plead a particular
case and seek to establish a different case at the trial.
[12]
In my view the plaintiff has transversed the issues as raised in its
pleadings, and therefore that is in compliance with the
reasoning in
the two matters above. It seems to me that the defendants seek
reliance on
Absa Bank Ltd v Wilkie
(1201/2013) [2013] ZAECPEHC
55 (judgment handed down on 3 September 2013) wherein Goosen J
concluded that:
"[11] In order to establish its
cause of action the plaintiff must allege the jurisdictional facts
necessary to establish its
entitlement to proceed to enforce the
terms of the credit agreements which are subject to the provisions of
the NCA.
[12] ...
[13] In this instance the plaintiff s
entitlement to prosecute its claim against the defendant is not
clearly established. On the
contrary the plaintiff has failed to make
any averments regarding its entitlements to proceed in terms of
section 88(3) of the
NCA."
[13]
The findings of Goosen J were followed in the same division (Eastern
Cape Division) in the matter of
First Rand Bank Ltd v Gonzales
2014 JDR 0464 (ECP).
[14]
In
Ferris and Another v FirstRand Bank Ltd
2014 (3) SA 39
(CC)
the Constitutional Court confirmed the findings in
FirstRand Bank
Ltd v Fil/is and Another
2010 (6) SA 565
(ECP) and held that:
"It seems to me that the original
agreement is enforceable without further notice of the relevant
debt-restructuring order
is breached. In Fillis the Eastern Cape
Division of the high court correctly stated:
'it
follows, in my view, as a matter of interruption, that once [the
debtor is in default of the relevant credit agreement and is
in
default of the relevant debt restructuring order] the credit
provider is at liberty to proceed and to exercise and enforce,
by
litigation or other judicial process, any right or security under
credit without further notice."
[15]
The findings of Goosen J were overturned in Ferris
supra when the
following is stated:
'It follows that Mr and Mrs Ferris'
breach of the debt - restructuring order entitled FirstRand to
enforce the loan without further
notice. However, even if further
notice were required, its absence is a purely dilatory defence - a
defence that suspends proceedings
rather that precludes a cause of
action - and is not an irregularity that established that a judgment
has been 'erroneously granted'
justifying rescission under rule
42(1)(a)."
[16]
It therefore follows that both the Wilkie supra and Gonzales supra
decisions are of no assistance to the present case for the
reasons
that:
16.1. Both matters concerned
applications for summary judgment and the conclusions reached were
relevant only in respect of the
question whether the defendants in
the respective matters had established a
bona fide
defence.
16.2. The objection raised by the
defendants to the Bank's pleadings constitutes an issue that should
rightfully be determined by
way of an exception - a step which the
defendants failed to take in the present matter.
16.3. Wilkie supra did not concern a
termination of a debt review in terms of section 86(10) but instead
related to the enforcement
of a credit agreement in terms of section
129 of the Act. Although Gonzales supra did concern itself with a
termination in terms
of section 86(10) it did so on the principles
established in Wilkie supra.
[17]
Even in the event where Wilkie and Gonzales are found to be in favour
of the defendants, their case is plagued by the fact
that Mr Greeff
under cross examination conceded that:
17.1. A notice of section 129 of the
Act had been received by the first defendant prior to the first
defendant having approached
the debt counsellor.
17.2. In a letter dated 25 July 2008
marked as Annexure "A1" Mr Greeff confirmed that
notwithstanding the debt restructuring
order having been granted on
18 March 2008, that no payments had been received from the
applicants;
17.3. Mr Greeff on 11 August 2008 had
received the notice in terms of section 86(10) in terms whereof the
debt review of the first
applicant had been, terminated.
[18]
Further to this, the debt counsellor concluded that the first
defendant was over · indebted and issued a proposal containing
a re-arrangement of the first defendant's financial obligations and
over-indebtedness of the second defendant and therefore her
position
remains unaltered. This is also in view of the fact that the two
defendants are married out of community of property.
[18]
It is therefore my considered view that the submissions by the
plaintiff be dismissed with costs.
[19]
In the circumstances, I make an order granting plaintiff's relief in
terms of prayers 1; 2 and 3 and I make no order on prayer
4. The
defendants are ordered to pay the costs.
____________________
Raulinga
J
APPEARANCES:
1.
For the Plaintiff
:
Mr Aucamp
Instructed
by
:
Tim Du Toit & Co Inc
2.
For the defendants
:
Mr Du Plessis
Instructed
by
:
Greeff & Van Wyk Attorneys
3.
Date of hearing
:
31 July 2013
4.
Date handed down
:
29 September 2016