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[2016] ZAGPPHC 1051
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Changing Tides 17 (Pty) Ltd N.O. v Delport (44741/2014) [2016] ZAGPPHC 1051 (22 December 2016)
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
Case
Number: 44741/2014
22/12/2016
Reportable:
No
Of
interest to other judges: No
Revised.
CHANGING
TIDES 17 (PTY) LTD
N.O. APPLICANT
AND
PETRUS
JOHANNES
DELPORT RESPONDENT
JUDGMENT
MOLEFE
J
[1]
This is an opposed application in terms of which the applicant seeks
the following order:
1.1
Payment of the
sum of R590 893,
66;
1.2
Interest on the
sum of R590 893, 66 at the rate of 8,10% per annum compounded monthly
in
arrear
from 1 March 2014 to date of payment;
1.3
An order in
terms
whereof the immovable property described below Is declared
specially executable and, to this end, that
a
writ of
Execution be issued
as
envisaged in
terms
of Rule 46
(1) (a) of the Uniform Rules of Court:
Erf
2036 Crystal Park Extension 3 Township, Registration Division /.R.,
Province of Gauteng, Measuring: 863 Square
meters,
Held by Title Deed of
Transfer T1892712008, subject to the Conditions Therein Contained.
(the immovable property);
1.4
That the
Registrar of the above Honourable Court be authorized to issue
warrant of attachment in respect of the immovable property;
1.5
Costs
of
suit on attorney
and client
scale.
[2]
The applicant and respondent entered into a loan agreement on 16
October 2008. It was an express condition of the loan that
such loan
was to be guaranteed by an indemnity bond registered over the
immovable property on 28 January 2009. In terms of the
indemnity
bond, the respondent bound specifically as a mortgage the immovable
property as security for the respondent's obligations
in terms of the
loan agreement.
[3]
The respondent has failed to timeously and punctually perform his
obligations under the loan agreement by falling into arrears
with the
monthly instalments. The respondent is currently in arrears with his
monthly obligations towards the applicant in an amount
of R329 640,
46. The arrears equate to 56, 42 missed instalments (ie. 4.7 years
missed instalments) which arrears the respondent,
despite demand
fails and/or neglects to pay. The total balance outstanding is R729
577, 97.
[4]
The applicant complied with the provisions of the National Credit
Act, Act 34 of 2005 ("the NCA") by sending a written
notice
in terms of the provisions of section 129 (1) (a) of the NCA by a
pre-paid registered mail to the respondent's chosen
domicilium
citandi et executandi.
[5]
The respondent's attention was drawn to the provisions of section 26
(1) of the Constitution of the Republic of South Africa,
which
accords to everyone the right to have access to adequate housing. The
respondent was also forewarned that should judgment
be granted, the
Court shall be requested to order that the immovable property be
declared executable and this could lead to his
eviction.
[6]
The respondent was at all material times legally represented by
Blakes Maphanga Inc. Attorneys. Although the respondent's attorneys
served and filed the respondent's heads of argument on 14 June 2016,
they withdrew as attorneys of record on 7 November 2016. The
respondent at the hearing of this application appeared in person.
[7]
The respondent opposes the application and raised the following
defences:
7.1 The application is premature
(section 130(3)(c)(i) ) considering the fact that the respondent
referred the matter to an ombudsman
with jurisdiction during the
period provided for in the section 129 notice;
7.2 The authority of the applicant's
deponent to the founding affidavit is denied;
7.3 The respondent refusal to sign the
proposed settlement agreement. It was expected of the respondent to
inter a/ia
sign a consent to judgment in the event of the
respondent breaching the terms of the settlement agreement which the
respondent feels
is against public policy.
Premature
Application
[8]
The respondent submitted that the applicant approached the Court
during a time when the respondent had elected to refer the
matter to
an ombudsman with the necessary jurisdiction and the application is
therefore premature in terms of section 130(3)(c)(i).
The section
129(1)(a) notice dated 22 July 2013 was collected by the respondent
from the post office on 27 July 2013. On 4 August
2013 the respondent
notified the applicant of its election to refer the matter to an
ombudsman with the necessary jurisdiction
to adjudicate the matter.
The respondent contends that the aforesaid election was effected
within the 10 day period as provided
for in the section 129 (1) (a)
notice, as the 10 day period commenced on 24 July 2013 and expired on
7 August 2013.
[9]
Section 5 of the NCA provides as follows:
"(5) When
a
particular
number of business days is provided for between the happening of one
event and another, the number of days must be calculated
by –
(a)
excluding the day on which the first such event occurs;
(b)
including the day on or by which the second event is to
occur; and
(c)
excluding any public holiday, Saturday or Sunday that
falls on or between the days contemplated in paragraphs (a) and (b)
respectively".
Section
129 of the NCA provides that:
'(1) If the consumer is in default
under a credit agreement, the credit provider -
(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, alternative dispute
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
date; and
(b) subject to section 130 (2),
may not commence any legal proceedings to enforce the agreement
before –
(i) first providing notice to the
consumer, as contemplated in paragraph (a), or in section 86 (10), as
the case may be; and
(ii) meeting any further requirements
set out in section 130.
Section
130 (3) (c) of the NCA provides that:
(3) Despite any provision of law or
contract to the contrary, in any proceedings commenced in a court in
respect of a credit agreement
to which this Act applies, the court
may determine the matter only if the court is satisfied that -
(a) . . . .
(b) .. . .
(c) that the credit provider has not
approached the court -
(i) during the time that the matter
was before a debt counsellor, alternative dispute resolution agent,
consumer court or the ombud
with jurisdiction;
[10]
Delivery
[1]
of the section 129 notice entails that:
"[54] The Act prescribes
obligations that credit providers must discharge in order to bring
s129 notices to the attention of
consumers. When delivery occurs
through the postal service,
proof that these obligations have
been discharged entails proof that –
(a)
The 5129
notice was sent via registered mail and was sent to the correct
branch of the Post Office, in accordance with the postal
address
nominated by the consumer. This may be deduced from a track and trace
report and the terms of the relevant credit agreement;
(b)
The Post
Office issued a notification to the consumer that a registered item
was available for her collection;
(c)
The Post
Office's notification reached the consumer. This may be inferred from
the fact that the Post Office sent the notification
to the consumer's
correct postal address, which inference may be rebutted by an
indication to the contrary as set out in [52] above”.
[11]
It is common cause that the section 129 notice was sent by registered
post on 22 July 2013 and the first notification was issued
to the
respondent on 24 July 2013 as deduced from the track and trace
report. I agree with the submission made by the applicant's
counsel
[2]
that considering the definition ascribed to "delivery",
same occurred on 24 July 2013 and not 27 July 2013 when the
respondent collected the notice. I am therefore satisfied that the 10
day period provided for in section 130 (1) (a) lapsed on 1
August
2013. The respondent referred the settlement agreement to the
relevant ombud with jurisdiction on 4 August 2013, three (3)
days
after the expiry of the ten (10) day period. In my view, the
application was not premature in terms of section 130(3)(c) as
the
applicant approached the court before the respondent elected to refer
the matter to an ombud with jurisdiction.
Authority of Deponent
[12]
It is contended by the respondent that the deponent to the
applicant's founding affidavit lacks the necessary authority to
act
on behalf of the applicant.
[13]
In a case of a company or co-operative society, there is judicial
precedent for holding that objection may be taken if there
is nothing
before the court to show that
the
applicant has duly authorised the institution of notice of motion
proceedings
[3]
.
In addition, there is a considerable amount of authority for the
proposition that, where a company commences proceedings by way
of
petition, it must appear that the person
who
makes the petition on behalf of the company is duly authorised by the
company to do so
[4]
.
In Eskom v Soweto City Council
1992 (2) SA 703
(W), Flemming DJP
held:
"I
find the regularity of arguments about the authority of
a
deponent unnecessary
and wasteful".
In
Ganes and Another v Telcom Namibia Ltd
2004 (3)
SA 615
(SCA),
Streicher JA held:
"In
my view, it is irrelevant whether Hanke had been authorised to depose
to the founding affidavit. The deponent to an affidavit
in motion
proceedings need not be authorised by the party concerned to depose
to the affidavit. It is the institution of the proceedings
and the
prosecution thereof which must be authorised. . . It must, therefore,
be accepted that the institution of the proceedings
was duly
authorised. In any event, Rule 7 provides a procedure to be followed
by a respondent who wishes to challenge the authority
of an attorney
who instituted motion proceedings on behalf of the applicant. The
appellants did not avail themselves of the procedure
so provided.”
[14]
In my view, the respondent was ill-advised to raise the "lack of
authority" point in that, the deponent Mlamuli Duma,
was duly
authorised by a resolution dated 9
.
April 2013 to institute the legal proceedings
[5]
.
Furthermore, the respondent failed to avail himself of the Rule 7 (1)
remedy if he wished to raise the issue of authority of the
deponent.
This defence should therefore fail.
Proposed
Settlement Agreement
[15]
The dispute referred to the ombudsman relates to the settlement
agreement which the respondent was requested to sign, more
specifically, the fact that the respondent contends that the terms of
the agreement were against public policy. The clauses 3.2
and 3.3 in
the settlement agreement required the respondent to consent to
judgment for the outstanding amount on the bond, interest
and legal
fees and the property to be declared specifically executable and
warrant of attachment be granted without any notice
to the
respondent, should the respondent breach the terms of the settlement
agreement. The respondent in this regard, relied on
Eke
v Parsons
[6]
at paragraphs [44]:
"[44]
Our Courts have long recognised the detrimental effect of patties, by
way Of agreement, preventing each other from having
a dispute heard
by a court of law. The common law rightfully recognises that
agreements of that nature may offend public policy.
This was
expressed thus by the Appellant Division in Schierhout:
"If
the terms of an agreement are such as to deprive a party of his legal
rights generally, or to prevent him from seeking
redress at any time
in the Courts of Justice for any future injury or wrong committed
against him, there would be good ground for
holding such an
undertaking is against the public law of the land".
[16]
Respondent submitted that notwithstanding having referred the
aforesaid complaint to the ombudsman for adjudication, to date
the
ombudsman has failed to make a ruling in respect of the complaint.
[17]
According to the Parsons test
[7]
,
an agreement can be made an order of court if three requirements are
met, namely: (a) the agreement must relate to an issue in
dispute
between the parties; (b) the agreement must be in accordance with the
Constitution and the law; and (c) the agreement must
hold some
practical and legitimate advantage. This would be achieved if the
agreement can be brought into operation sensibly and
that the
agreement must be just and equitable.
[18]
In my view, the inclusion of a "consent
to judgment"
in
a settlement agreement is not contrary to the purposes of the NCA nor
does it offend the provisions of the Parson test. The purpose
of the
settlement agreement is to promote cost and time-effective collection
procedures that are fair and decreasing the costs
of debt collections
which consumers will ultimately have to pay. I am satisfied that
in
casu,
the terms of the settlement agreement were not against
public policy.
Leave
to file Further Affidavits
[19]
A substantive application seeking condonation for the filing of a
further set of affidavits to supplement the applicant's replying
affidavit and/or to the extent necessary to take precedence of the
contents of the applicant's replying affidavit was made by the
applicant. The respondent has filed an opposing affidavit in reply in
which he raised a point in
limine
that any reference to the
credit ombudsman by the applicant amounts to hearsay and should
accordingly be struck out.
[20]
The issue surrounding the ombudsman became relevant in the
respondent's answering affidavit when he raised the point that the
application is premature as the matter is currently serving before an
ombudsman.
[8]
In reply, the applicant referred to correspondence exchanged between
its attorneys of record and a case manager in the employ of
the
credit ombudsman in terms of which the applicant was informed that
the matter was closed on the ombudsman's system as far back
as 19
November 2012 and that the applicant may proceed with its application
for default judgment against the respondent
[9]
.
[21]
The respondent then brought it to the attention of the applicant
after the filing of the replying affidavit that the contents
of the
aforesaid paragraph is in fact incorrect as the matter was still
pending
[10]
.
The applicant then immediately suspended further actions pending
finalization of the
"settlement
dispute"
by the
ombudsman.
[22]
The final outcome from the credit ombudsman dated 13 July 2015 was
that the file in the matter of the respondent was closed
as the
respondent
"has proven
to be quite difficult and his attorney has now advised that he has
reserved his rights herein, and will not be
providing any further
documentation".
[11]
[23]
The Court has a discretion to admit further affidavits if there is a
proper and satisfactory explanation as to why the information
contained in the affidavit was not
put
up earlier and that no prejudice is caused to the opposite party
[12]
.
I am satisfied that the applicant's explanation for additional
affidavits negatives mala
fides
and that the respondent
stands to suffer no prejudice. In the circumstances, condonation for
the filing of further affidavits is
granted.
[24]
It is evident that the high watermark for the respondent's case is
his contention that both applications were issued prematurely
at the
time when the matter served before the credit ombudsman. In my view,
this contention is without any merit, considering that
after a
protracted delay of more than 2 years, nothing stand to be gained
from the referral to the ombudsman as the issue has now
become
academic. I have also noted that the respondent is willing to sign a
settlement agreement and has acceded to a consent judgment
if he
receives a notice of such application prior to the applicant applying
for judgment, should he fail to honour the provisions
of the
settlement agreement
[13]
.
[25]
The respondent
in casu
is currently in arrears equate to 56,
42 missed instalments, which arrears the respondent despite demand,
fails and/or neglects
to pay. The immovable property is not the
respondent's primary residence and is being occupied by a tenant. The
applicant has complied
with the National Credit Act and the
defendant's defences are all without any merit.
[26]
In the circumstances, I make the following order:
1.1
Payment of the
sum of R590 893,
66;
1.2
Interest on the
sum of R590 893, 66 at the rate of 8,10% per annum compounded monthly
in arrear from 1 March 2014 to date of payment;
1.3
An order in terms
whereof the immovable property described below is declared specially
executable and, to this end, that
a
writ of Execution be
issued as envisaged in terms of Rule 46 (1) (a) of the Uniform Rules
of Court:
Erf 2036 Crystal Park Extension 3
Township, Registration Division l.R., Province of Gauteng, Measuring:
863 Square meters, Held
by Title Deed of Transfer T1892712008,
subject to the Conditions Therein Contained. (the immovable
property);
1.4
That the
Registrar of the above Honourable Court be authorized to issue
warrant of attachment in respect of the immovable property;
1.5
Costs of suit on
attorney and client scale.
_________________
D
S MOLEFE
JUDGE
OF THE HIGH COURT
APPEARANCES
:
Counsel
on behalf of Applicant
:
Adv. P
Oosthulzen
Instructed
by
: Velile
Tinto and Associates Inc.
Counsel
on behalf of Respondent
:
In
person
Instructed
by
:
________
Date
Heard
: 23
November 2016
Date
Delivered
: 22
December 2016
[1]
Kubyana v Standard Bank of South Africa Ltd
2014 (3) SA 56
CC
[2]
Advocate P I Oosthuizen
[3]
Langeberg Ko-operasie Beperk v Folsher and Another 1950 (2) SA 618
(C)
[4]
Lurie Brothers Ltd v Arcache 1927 NPD 139
[5]
See record pages 18 and 19
[6]
2015 JOR 2064 (CC) at par
[7]
Eke v Parsons supra
[8]
Answering affidavit, page 96 par 4
[9]
Replying affidavit pages 158 and 159 "Annexure D"
[10]
Further affidavit page 7 par 4
[11]
Further affidavit page 22 "Annexure F"
[12]
See Standard Bank of South Africa v Sewpersadh and Another
200S (4)
SA 148
CPD at par 10
[13]
See Answer to further affidavit page 33 par 5.10