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[2016] ZAGPPHC 1209
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Absa Bank Limited v De Beer and Others (26749/2011) [2016] ZAGPPHC 1209 (11 November 2016)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
CASE
NO: 26749/2011
DATE:
11/11/2016
NOT
REPORTABLE
NOT
OF INTEREST TO OTHER JUDGES
REVISED
In
the matter between:
ABSA
BANK
LIMITED
PLAINTIFF / APPLICANT
And
HERMANUS
DE BEER
FIRST DEFENDANT / FIRST RESPONDENT
JACOBA
JOHANNA DE BEER
SECOND DEFENDANT/ SECOND RESPONDENT
JUANI
LABUSCHAGNE
THIRD
DEFENDANT / THIRD RESPONDENT
Heard:
22 July 2016
Delivered:
11 November 2016
JUDGMENT:
LEAVE TO APPEAL
A.A.
LOUW J
1.
This is an application to obtain leave to appeal my judgment handed
down on 18 December 2015.
2.
The first aspect to address is that of condonation for the late
delivery of the notice of application for leave to appeal. This
notice was delivered as late as 31 March 2016.
3.
I have read the application for condonation from which it appears
that there was a miscommunication in the offices of the then
attorneys of record of ASSA, VZLR, which led thereto that ABSA only
became aware of the judgment on 6 January. ABSA did not immediately
instruct its attorneys to deliver an application for leave but
ordered a transcript of the proceedings. It further then instructed
its trial counsel as well as a senior counsel to provide an opinion
on the prospects of success on appeal. The earliest date for
a
meeting with these counsel was 20 January 2016.
4.
In the meantime ASSA also requested the preliminary views of attorney
FerrazCardoso of ENS attorneys on the matter. It is
stated that
on 14 January Ferraz-Cardoso requested copies of the pleadings for
the purposes of furnishing her preliminary views.
These were provided
to her on 15 January 2016.
5.
On 19 January VZLR obtained a transcript of the trial proceedings and
forwarded it to ABSA. On the next day, 20 January, the
meeting with
VZLR attorneys and the two Pretoria counsel proceeded as scheduled.
ABSA requested a written opinion. This was made
available to VZLR and
transmitted to ABSA on 26 January. ABSA again forwarded it to
Ferraz-Cardoso "who again advised (still
on an informal basis)
that an opinion from another senior counsel should be sought."
It was decided to brief Mr Loxton SC
as he is regarded by the bank as
the
expert on the National Credit Act.
6.
With reference to the passage quoted in the previous paragraph I am
at a loss to understand what "the informal basis"
means. If
ASSA at any stage during January delivered a notice of application
for leave it could still have been seen as reasonable
delay. If one
only counts the days from 6 January the 15 court days still would
have expired on 27 January.
7.
A party who seeks leave to appeal and has a written judgment in its
possession surely is in a position to draft a notice of application
for leave to appeal. This is especially so where the litigant is
ASSA, one of the leading banks in South Africa with many legal
advisors and ready access to top firms of attorneys and counsel.
8.
Instead what ABSA did after the opinion received during January was
to brief Loxton SC for an opinion. The first contact with
Loxton was
a telephone call on 29 January when his availability was ascertained.
It seems that he was not readily available.
9.
The founding affidavit for condonation further states that in the
period that expired before Loxton was seen there were many
meetings
and discussions in ABSA's legal department. It is stated in paragraph
42 of this affidavit that:
"Internally, we decided that
an appeal was indeed necessary, but that the opinion of Advocate
Loxton
SC
would have to be obtained before further steps were
taken."
This luxury is by no means afforded to
a litigating party and was done in deliberate breach of the rules of
court.
10.
The opinion by Loxton was produced on 29 February. Thereafter it took
further internal deliberations by ABSA before the notice
was
delivered on 31 March.
11.
I regard the delay as serious and find that the whole period of delay
has not been explained adequately.
12.
As regards the application for condonation I accept that it also took
time to draft but there is no requirement that it has
to be filed
simultaneously with the application for leave. In my view the
applicant should at the latest during January 2016 have
filed the
application for leave, and if for any reason the application for
condonation was not ready by that date, have filed such
afterwards.
The procedure that should have been followed then was that, after all
opinions have been obtained, to supplement the
application for leave,
if necessary.
13.
Turning to the merits, I firstly wish to point out that the crux of
my judgment is not being attacked i.e. that it is totally
unacceptable, indeed reckless, to add the income of the surety to
that of the lenders to determine whether the lenders qualify
for the
loan. This is a self-evident proposal and was at the trial conceded
by the bank's employee who further stated that after
the 2008 banking
and financial crisis this was no longer done. From this finding I
reasoned that such an "assessment"
is no assessment at all
because it is irrational. That brought section 83(1)(a) into play in
terms whereof I set aside the consumers'
obligations.
14.
I could have set aside all or part of the obligations but for the
reasons I state in paragraph 65 of the judgement I set aside
the
obligations in total.
15.
In written argument Mr Loxton SC makes the point that the setting
aside of the entire loan together with the bonds have an anomalous
effect, namely that consumers are then in a better position than they
would have been had the loans not been extended to them at
all. It is
no doubt so that they are in a better position but I do not regard it
as anomalous. I have been at pains to point out
in my judgment that
this is the "penalty" that befalls a bank when it provides
reckless credit especially "one of
the worst examples of
reckless credit" as stated by the respondents' expert witness
and which passage I have quoted in paragraph
46 of my judgment. To
this I may add that credit was only sought for R300 000 but that R500
000 was lent and advanced.
16.
It is further stated in paragraph 13.19 of the written argument that
I should not have made the finding of recklessness in respect
of the
entire loan but only the further R500 000 of 2008. This argument
leaves out of account what I have stated in the first paragraph
of my
judgment namely that in terms of clause 32 of the 2008 loan any
previous loan agreement was replaced. Thus it was the "totale
hoofskuld" in the amount of R1 151 430 that had to be
scrutinised.
17.
Lastly I may mention that the following statement in paragraph 13.3
of the written argument finds no support in the evidence:
"The difficulty of course is
that although the third defendant was
a
surety in
respect
of her parents' debts since 2006, she was also an adult person within
the first and second respondent's
immediate family or
household
who, it was common cause, assisted them
financially."
(my emphasis)
The
evidence was that she lives in Pretoria-North and has her own
household. She also does not have it broad it financially and
just
manages to break even. When she is able to give money to her parents
she does so as do other members of the family.
18.
I do not believe that there are reasonable prospects of success on
appeal.
Order
1. The application for condonation is
dismissed with costs.
___________________
A.A.
LOUW
Judge
of the High Court