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[2015] ZAGPPHC 127
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Absa Bank Limited v Bjorkman and Another (3332/13) [2015] ZAGPPHC 127 (13 February 2015)
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IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
CASE NUMBER: 3332/13
DATE: 13 February
2015
NOT REPORTABLE
ABSA BANK
LIMITED
................................................................................................................
Plaintiff
V
IVAN NEWELL
BJORKMAN
...........................................................................................
First
Defendant
HER MAJESTY’S
GUEST HOUSE
CC
........................................................................
Second
Defendant
JUDGMENT
MABUSE
J
:
[1] This is an
exception raised on five grounds, to which I will refer in the course
of the judgment, by the defendant against the
plaintiff’s
summons.
[2] The plaintiff is
a public company with limited liability duly registered as such in
accordance with the company statutes of
this country. In terms of the
provisions of the Banks Act 94 of 1990 and of the
National Credit Act
34 of 2005
the plaintiff is a registered commercial bank and a
registered credit provider respectively. It operates from its
registered offices
located at 15 Troye Street and conducts business
through its Corporate and Business Bank at 208 Jeppe Street, both in
Johannesburg.
[3]
The first defendant is an unmarried major businessman who has chosen
his
domiciHum
citandi et executandi
at
plot 259 Bridle Park, Midrand. He is the sole member of the second
defendant. The second defendant is a close corporation duly
registered as such in accordance with the provisions of the Close
Corporation Act 69 of 1984. Its chosen
domicilium
citandi et executandi
is
Plot 259 Bridle Park, Midrand and its registered office is located at
Suite 11 Fish Eagle Office Park, Kingfisher Crescent, Meyersdal.
[4] By summons
issued by the Registrar of this Court on 29 May 2013, the plaintiff
claims against the first and second defendants,
the one paying and
the other to be absolved, payment of a sum of R2,824,618.84 or as set
out in the certificate of balance attached
to the plaintiff’s
declaration as ‘ABL2’, plus interest and costs. In
addition the plaintiff claims against the
first defendant only an
order in terms of which two immovable properties belonging to the
first respondent are declared especially
executable. After the
defendants had delivered their notice to defend, the plaintiff,
seemingly, approached the Court with an application
for summary
judgment which the Court refused to grant. Instead the court granted
the defendants leave to defend the plaintiff’s
action. That
necessitated the plaintiff having to deliver its declaration which
the plaintiff it did.
[5] In the
aforementioned declaration, the plaintiff alleged that it entered
into a written loan agreement (“the agreement”)
with the
first defendant. As proof of such written loan agreement the
plaintiff had attached to it declaration, a document marked
Annexure
‘ABL1’, a money loan agreement property development. In
terms of the said loan agreement they had agreed,
among others, that:
5.1
the plaintiff had agreed to loan the first defendant who had agreed
to borrow from the plaintiff the sum of R720.000.00
{“the
principal debt’),
on
certain terms and conditions;
5.2 it was a term of
the said agreement that the first defendant would repay the principal
debt, and in addition certain named and
interest charged over a term
of 120 months in equal monthly instalments each of R10,890.23;
5.3 the plaintiff
was entitled to add to the outstanding balance of the principle debt
any unpaid interest;
5.4 the first
defendant would be in default of the said loan agreement if he failed
to pay on the due date any amount payable by
him to the plaintiff. In
addition the first defendant would be in default of the loan
agreement if he breached any provision of
the said agreement
including any provision of a security document;
5.5 in the event of
default by the first defendant the plaintiff would give him, the
first defendant, a written notice of such default
and may propose
that the first defendant refer the agreement to a debt counsellor,
alternatively a dispute resolution agent, consumer
court or ombud
with jurisdiction, with intent that the parties resolve any dispute
under the agreement or develop and agree on
a plan to bring the
payment up to date;
5.6
in the event of default the plaintiff would be entitled to commence
legal proceedings to enforce the agreement, including exercising
its
rights in terms of any of the securities and recover collection costs
and default administration charges (if the Plaintiff
has given the
first defendant notice referred to in paragraph 5.5
supra
and
the first defendant was and has been in default under the agreement
for at least 20 business days and at least 10 business days
have
elapsed since the plaintiff delivered the notice contemplated in
paragraph 5.5 and in the case of a notice sent as provided
for in
paragraph 5.5 that the first defendant has failed to respond to the
notice or has responded to the notice but rejected the
plaintiff’s
proposal.
[6]
The parties had agreed that a certificate signed by a manager of the
plaintiff in which he specified the amount owed by the
first
defendant to the plaintiff and in which he further stated that such
amount was due, owing and payable by the first defendant
to the
plaintiff would be
prima
facie
proof
of the amount thereof and of the fact that such amount was due, owing
and payable for the purpose of obtaining provisional
sentence or
other judgment in any competent court. It was a term of the
aforementioned loan agreement that it would not be necessary
for the
plaintiff to prove the appointment of the person signing the
certificate.
[7] The plaintiff
duly complied with all its obligations in terms of Annexure ‘ABL1’
in that it advanced the cash amount
of R720,000.00 to the defendant
and the first defendant withdrew the same amount. According to the
plaintiff the loan to the first
defendant was administered in the
plaintiff books and accords under account number [...].
[8] The first
defendant breached the aforementioned agreement in that he failed to
pay the monthly instalments duly and/or timeously
or at all as a
consequence whereof he failed to pay any amount payable by him to the
plaintiff on the due dates thereof in breach
of the provisions of the
agreement and of breach of his payment obligations under the loan
agreement. As a consequence of the first
defendant’s failure to
pay the monthly instalments timeously or at all the principal debt,
the plaintiff became entitled
to commence legal proceedings to
enforce the agreements, including its rights in terms of the mortgage
bonds and the full outstanding
amount of the first defendant’s
indebtedness to the plaintiff became due and payable.
[9] The plaintiff
alleged that it had complied with the provisions of clause 14.2 of
Annexure ‘B’ in that it gave written
notice to the first
defendant of such default and proposed in the same written notice
that the first defendant should refer the
loan agreement to a debt
counsellor, alternatively a dispute resolution agent, consumer court
or ombudsman with jurisdiction with
the intent that the parties
resolve their dispute under the credit agreement or develop and agree
on a plan to bring the payments
up to date. Notwithstanding the
delivery by the plaintiff of the said notice, the first defendant has
neither responded to the
said notice nor made payment of the loan
agreement after the effluxion of a period of 20 days after delivery
of such notice.
[10] In terms of
Annexure ‘ABL2’, which is a signed certificate by one of
the plaintiff’s managers, the total
amount due and payable by
the first defendant to the plaintiff in respect of the first
defendant’s entire indebtedness to
the plaintiff was as at 10
April 2013, R2,824,618.87 plus interest at 11.5% and became due from
11 April 2013.
[11] The first
defendant’s caused to be registered four mortgage bonds in
favour of the plaintiff:
11.1 Mortgage Bond
Number B62326/98, a copy of which was attached to the declaration as
Annexure ‘ABL3’ was to secure
the debt of R100,000.00;
11.2 Mortgage Bond
Number B110668/06 dated 18 July 2006 and a copy which was attached to
the declaration as Annexure ‘ABL4’
was to secure payment
of the sum of R1,300,000.00;
11.3 Mortgage Bond
Number B49566/07 dated 26 March 2007 and a copy of which was attached
to the declaration as Annexure ‘ABL5’
was security for
payment of the sum of R945,000.00;
11.4 Mortgage Bond
Number B38113/08 dated 15 April 2008 as contained in Annexure marked
‘ABL6’ was to secure payment
of the sum of R1,215,000.00
and Mortgage Bond Number B15661/08 registered on 19 February 2008, a
copy of which was attached to
the declaration as Annexure ‘ABL7’
was to secure payment of the sum of R720,000.00;
11.5 Mortgage Bonds
‘ABL2’ to ‘ABL6’ were all registered over the
first defendant’s immovable property
known as portion 258 (a
portion of portion 63) of the Farm Knopjeslaagte Number 365,
Registration Division JR in the province of
Gauteng, measuring 2830
hectares and held by Deed of Transfer Number T7241/98 and Mortgage
Bonds ‘ABL6’, and;
11.6 ‘ABL7’
was registered over the immovable property known as portion 259 (a
portion of portion 63) of the Farm Knopjeslaagte
Number 385,
Registration Division JR in the province of Gauteng, measuring 4,2829
hectares and held by virtue of Deed of Transfer
Number T12625/98.
[12] The defendants
have now raised five distinct exceptions against the plaintiff's
summons.
They are as follows:
12.1 That the
plaintiff has not attached the loan agreements in respect of the
mortgage bonds annexed to the declaration as Annexures
‘ABL3 to
ABL6’.
12.2 The summons
was, with regard to clauses 14.1 and 14.2 of Annexure ‘B’
to the loan agreement, premature.
THE
PLAINTIFF HAS NOT ANNEXED THE LOAN AGREEMENTS RELATING TO THE
MORGAGED
BONDS ANNEXED TO THE DECLARATION AS ANNEXURES ‘ABL3 TO ABL7
’
[13] The defendants’
first ground of exception is based on the provisions of Rule 18(6) of
the Uniform Rules of Court. This
Rule provides that:
“
A
party who in his pleading relies on a contract shall state whether
the contract is written or oral, and when, where and by whom
it was
concluded, and if the contract is written a true copy thereof or of
the part relied on the pleading shall be annexed to
the pleading."
In paragraph 4 of
its declaration the plaintiff stated that:
“
On
16 October 2007 the Plaintiff and the First Defendant entered into a
written loan agreement, a copy of which is attached hereto
marked
Annexure ABL1’ and which consist of the following...”
then
followed a list of documents all of which constituted Annexure
‘ABL1’. The plaintiff then continued with further
allegations in which it set out the conditions and terms on which the
parties to the said agreement agreed upon, how the first
defendant
flouted certain material terms of the loan agreement and how the
first defendant’s failure to comply with the terms
of the loan
agreement fundamentally affected certain primary obligations of the
defendant which were interwoven with, and linked
to, the Plaintiff’s
existing rights in terms of certain securities in the form of
mortgage bonds. Firstly it is as clear
as crystal that the further
allegations in the plaintiff’s declaration are predicated on
the loan agreement referred to as
‘ABL1’. Secondly it is
also clear that nowhere in the declaration does the plaintiff plead
that the defendants failed
to comply with the terms of the loan
agreement or agreements relating to the mortgage bonds marked
Annexures ‘ABL3 to ABL6’.
Thirdly nowhere in its
declaration does the plaintiff plead that the defendants failed to
comply with the terms of any of the four
mortgage bonds referred to
as ‘ABL3 to ABL6’. The second defendant though was not
party to the agreement constituting
the plaintiff’s cause of
action.
[14] The matter that
ignited the claim for payment of the amount of R2,824,618.84 is the
plaintiff’s claim for the sum of
R700,000.00. It is not in
dispute that in respect of the amount of R700,000.00 the plaintiff
has attached the loan agreement to
the combined summons as enjoined
by Rule 18(6) of the Uniform Rules of Court. The loan agreement
constitutes the source of the
claim against the defendants for
payment of the sum of R700,000.00 or, to put it in other words, the
loan agreement, Annexure ‘ABL1’,
constitutes the
plaintiff’s sole cause of action. The plaintiff’s claims
in respect of the other security the plaintiff
had only become
operative by reason of the defendant’s failure to comply with
the terms of the loan agreement ‘ABL1’.
The defendant’s
objection to the plaintiff’s summons is that the plaintiff has
not attached the relevant loan agreement
in respect of the mortgage
bonds attached to the summons as Annexures ‘ABL3 to ABL6’.
It was argued on behalf of the
defendants that it was trite that a
mortgage bond is not cause for a debt but merely security document
securing a debt as set out
in a loan agreement.
[15] It is as clear
as crystal from the pleadings that based on ‘ABL1’ the
plaintiff claimed from the defendants’
payment of the sum of
R720,000.00. It is also clear from the summons that a apart from
their liabilities arising from ‘ABL1’
the First Defendant
was also liable to the plaintiff for other amounts fully set out in
the Annexures ‘ABL3 to ABL7’.
It is the First Defendant’s
default in complying with the terms of the loan agreement that
triggered the demand for the payment
of the amount referred to in the
mortgage bonds. This is quite clear from paragraph 10 of the summons
in which the plaintiff pleaded
that:
“
In
consequence of the first defendant’s default, the plaintiff
became entitled to commence legal proceedings to enforce the
agreement, including its rights in terms of the mortgage bonds infra
and the full outstanding amount of the first defendant’s
indebtedness to the Plaintiff became due and payable. ”
Accordingly the
plaintiff’s cause of action is not based on any document but
the loan agreement attached to the summons as
Annexure ‘ABL1’.
This ground of the Defendants’ exception therefore lacks merit.
THE PLAINTIFF’S
CLAIM IS PREMATURE
[16] Referring to
clauses 14.1 and 14.2 of Annexure ‘ABL1’, the defendants
contend that the summons was premature in
as much as the plaintiff
did not draw the first defendant’s default to his notice or
allow the first defendant to remedy
his default. In this regard the
first defendant relies on Standard Bank of South Africa Ltd v Hand
2012(3) SA 319 (GSJ) and Other
Authorities. Secondly, it is contended
that the plaintiff’s summons did not set the amounts that
constituted the arrears
in the declaration but instead stated that
the full outstanding amount of the first defendant’s
indebtedness to the plaintiff
became due and payable under
circumstances when it did not so become due and payable. It was
argued that the loan agreement contained
no stipulation that the full
amount in terms of the loan agreement would become due and payable
upon an event of default.
[17] It is only
apposite at this stage to set out clauses 14.1 and 14.2 of Annexure
‘A’ of ‘ABL1’. Clause
14.1 thereof provides
as follows:
“
Should
the consumer
14.1.1 fail to
pay any amount payable by him to the Bank on the due date thereof; or
14.1.2 breach any
provision of this Agreement including any provision in a Security
Document; or
14.1.3 being a
natural person surrender his estate, be sequestrated or die; or
14.1.4 not being
a natural person be wound-up, liquidated, deregistered or placed
under judicial management or pass a resolution
providing for any such
event; or
14.1.5 have any
application or other proceedings brought against or in respect of him
in terms of which is sought to be sequestrated
or placed under
curatorship if a natural person or, if not a natural person,
deregistered, wound-up, liquidated or placed under
judicial
management, in any such event whether provisional or finally;
then, the
consumer will be default of this Agreement. ”
Clause 14.2 of the
same agreement provides as follows:
“
14.2
In the event of the Consumer committing or allowing an event of
default as referred to in clause 14.1 or in clause 9 of Annexure
C;
14.2.1 give the
Consumer written notice of such default and may propose that the
Consumer refer this Agreement to a debt councillor,
alternative
dispute resolution agent, consumer court or ombud with jurisdiction,
with the intent that the parties resolve any dispute
under this
Credit Agreement or develop and agree on a plan to bring repayments
up to date; and
14.2.2 commence
legal proceedings to enforce this Agreement including exercising its
rights in terms of any of the securities and
recover collection costs
and default administration charges (if the default is in respect of a
payment obligation); if
14.2.2.1 it has
given the Consumer notice as referred to in paragraph 14.2.1 above or
it has given notice to terminate any debt
review processunder
section
86
of the
National Credit Act which
may then be under way in respect
of this Agreement; and
14.2.2.2 the
Consumer has been in default under the Agreement for at least twenty
(20) Business Days; and
14.2.2.3 at least
ten (10) Business Days have elapsed since the Bank delivered the
notice contemplated in paragraph 14.2.2.1; and
14.2.2.4 in the
case of notice in terms of paragraph 14.2.1 the Consumer;
14.2.2.4.1 has
not responded to the notice or
14.2.2.4.2
responded to the notice by rejecting the Bank’s proposal. ”
[18] In the first
place clause 14.2.1 only provides that if the consumer, meaning the
first defendant, is in default, the credit
provider, meaning the
plaintiff, must give him notice of such default. This clause does not
prescribe what such notice must contain.
One cannot read into a
clause of agreement what is not contained in it.
[19]
Secondly,
s. 129
of the NCA which deals with the procedures before
the enforcements of debts. It prescribes that if a consumer, in the
instant matter
the first defendant, is in default under a credit
agreement, the credit provider may, and not must, draw the default to
the notice
of the consumer in writing. If the credit provider should
choose to give the consumer such notice the section does not provide
what must be contained in such a notice. The plaintiff has pleaded
compliance not only with the terms of clause 14.2.1 supra but
also
with the provisions of
s. 129
of the NCA. This it did in paragraphs
25 and 27 of its declaration. Over and above the plaintiff has
attached copies of the relevant
notices which were sent to the
consumer, the first defendant, by prepaid registered post. These
notices which are all dated 8 May
2013, are marked ‘ABL12’.
In his heads of argument Mr. Reineke had referred the Court on this
aspect to the case of
Standard Bank of South Africa Limited v Hand
2012(3) SA 319 (GSJ). The case dealt with the terms of the agreement
in terms of which
the credit provider was obliged to give “
the
due demand'
before
it could cancel the agreement. In paragraph 23 it had this to say:
“
(23)
The parties clearly intended that due demand and dear, unequivocal
and unambiguous notice of cancellation should occur prior
to the
institution of judicial proceedings; or, at the very least, that “due
demand’’ ought to have occurred
prior to the institution
of judicial proceedings and, if the applicant thereafter intended
this application to have institutions,
dear, unequivocal and
unambiguous notice of cancellation "it ought to have alleged
that’’."
The
problem of the applicant in that matter was that, although in a
demand it had stated that:
“
The
applicant in terms of the agreement has elected to cancel the
agreement, take repossession of the vehicle and claim damages.
The
applicant seeks confirmation of the cancellation of the agreement and
the return on the vehicle in the present application,
the applicant
had neither as a fact alleged that it had cancelled the agreement nor
had it alleged how it had cancelled the agreement.
”
[20] It is quite
clear that clause 4.2.1 was crafted along the terms of
s. 129
of the
NCA. The first defendant had agreed to such terms. I am satisfied
that contrary to the first defendant’s contention,
the
plaintiff gave notices in compliance with clauses 14.2.1 and the
provisions of
s. 129
of the fact. The fact that
s. 129
was mentioned
in all the notices does not necessarily imply that notice that was
given was also not in terms of the provisions
of clause 14.2.1.
Accordingly the contention that the plaintiff did not draw the first
defendant’s default to his notice
is without merit. I already
have pointed out that neither clause 14.2.1 nor
s. 129
of the NCA has
set out what the relevant notice must contain or to read in
particular as no expressly or otherwise prescribe that
the first
defendant should be granted an opportunity to remedy his default. It
is also not the defendant’s case that he tried
to remedy his
default. In simple terms the notice that was given by the plaintiff
to the first defendant served dual purpose. It
served the purposes of
clause 14.2.1 of the loan agreement and
s.129
of the NCA. In view of
the identical similarities in the wording of both clause 14.2.1 and
s.129
of the NCA, it was not necessary for the plaintiff to issue two
separate notices. The first defendant had been duly warned.
[21] At any rate it
is not correct that the first defendant was not given an opportunity
to remedy his default. In my view that
opportunity to remedy his
default was given to him in the manner expressly set out in the
following paragraph:
“
In
terms of
section
129(1)
of the
National Credit Act, 2005
we proposed(sic) that you
refer the Credit Agreement to a Debt Counsellor, alternative Dispute
Resolution Agent, Consumer Council
or the Ombudsman for the financial
services so that resolve the dispute arising pursuant to the default
/ agree on a plan to bring
payments under the agreement to date. ”
[22] The fact that
the plaintiff did not specify on the notice that it was not given in
terms of clause 14.2.1 of the agreement
or to put it in another
manner, the fact that the notice indicated that it was given under
s.
129
of the NCA does not mean that it was not a notice in compliance
with clause 14.2.1. I have already pointed out that clause 14.2.1
was
framed along the lines of
s.129
of the NCA. In the result this point
has no merit.
THE AMOUNT OF
R2,824,618.84 WAS NOT EVIDENCED BY THE LOAN AGREEMENT WAS NOT
SUPPORTED:T HE AMOUNT CLAIMED IS MORE THAN DOUBLE THE
TOTAL AMOUNT
REPAYABLE
[23] In the third
ground of exception, it is contended that the amount claimed was not
supported by the loan agreement and furthermore
that it was more than
double the total amount repayable in terms of the loan agreement.
This ground of exception, in my view, cannot
be sustained. Firstly it
must be recalled that, in terms of Rule 23(1) of the Uniform Rules of
Court only two grounds of exception
can be lawfully raised against a
summons. Those grounds are that a summons is vague and embarrassing
or secondly that a summons
lacks averments which are necessary to
sustain an action or a defence.
[24] The purpose of
an exception is to weed out cases which lack merit. This ultimate
goal is to set aside the pleading objected
to in its entirety or in
part.
“
An
exception goes to the root of the entire claim or defence, as the
case may be. The excipient alleges that the pleading objected
to,
taken as it stands, is legally invalid for its purpose. ”
Per
Innes JA in Salzman vs Holmes
1914 AD 152
at 156. It is not the
purpose of the first defendant’s exception to set aside the
plaintiff’s summons by alleging that
the amount claimed is more
than double the amount due and payable. Evidence can be led which can
disclose the plaintiff’s
cause of action. Where it is such a
case, in other words, where evidence can be led to establish a cause
of action the summons
cannot be excepiable.
[25] In the instant
matter, exception is based, among others, on the contention that the
amount claimed is more than double the
amount refundable in terms of
the loan agreement and that there are no clauses or allegations
pleaded to substantiate the abovementioned
increase. It cannot be
correct that where it is contended that the amount claimed is more
than the amount due and payable a summons
can be attacked by means of
an exception because this objection relates only to part of the
claim. In his heads of argument Mr.
Meintjies referred the Court to
Santos and Others vs Standard Gen Insurance Company Ltd and Another
1971(3) SA 434 (O) at 437 B-E
in which De Villiers CJ had the
following to say:
“
It
is trite law that an exception that a particular claim discloses no
cause of action, cannot succeed unless it goes to the root
thereof,
that is to say unless the upholding of exception would have the
effect of destroying it altogether. (See Dharumpai Transport
(Pty)
Ltd v. Dhurampai,
1956 (1) S.A. 700
(A.D.) at p. 706). in the present
case the third plaintiff refers to two distinct claims against the
second defendant, one on her
own behalf and the other one on behalf
of the minor daughters. Even if the construction plays upon s. 11 (1)
(ii) (aa) by Mr. Lichtenburg
is correct, that will not have the
effect of destroying either of these claims. Both will still remain,
but each for a lessor amount.
The main function of the exception will
not have been attained, namely the elimination of unnecessary
evidence. The legal issue
involved can just as effectively be argued
and determined at the trial and the second defendant will in no way
be prejudiced: it
is at liberty to tender the amount it considered
legally due. (Cf. Thornton v. Royal Insurance Co. Ltd and Another,
1958 (4) S.A. 171
(C) at p. 174). Moreover, second defendant’s
real complaint is that the third plaintiff’s claims contained a
plus petetio
and a complaint of this nature can never be a good
ground for an exception that the pleading does not disclose the cause
of action.
’’
This ground of
objection presupposes the existence of a good cause. It can be viewed
as an admission that the plaintiff has established
a cause of action.
In my view the exception cannot be sustained on this ground of
objection.
THE
STANDARD MORTGAGE CONDITIONS AS REGISTERED UNDER REFERENCE
BC2/2006
AND REFERREDD TO IN CLAUSE 14 OF ANNEXURES “ABL3”-“ABL7"
ARE NOT
SUPPORTED
OR EVIDENCED BY THE ANNEXURES
[26] The gist of the
first defendant’s forth ground of exception is that:
“
The
relevant Standard Mortgage Conditions are thus not annexed to the
declaration as required by inter alia Rule 18(6). It is trite
that
when a party relies on an agreement the agreement must be annexed to
the particulars of claim. ”
This
ground of exception was sparked by what appears in clause 14.1 of
Annexures ‘ABL3 to ABL7’. Save for the differences
in the
reference numbers of the boards, the wording of the clauses are the
same in all material respects. This clause provides
that:
“
The
Standard Mortgage Conditions of the Bank which have been filed in the
Deeds Registry in which this bond is registered with reference
number.... are applicable to and form part of this bond except in so
far as any written agreement between the mortgage bond and
the Bank
may provide otherwise. ”
[27] In paragraph 18
of the declaration, the plaintiff pleaded that:
“
The
plaintiff attaches hereto marked Annexure ABL8’, a copy of the
Standard Mortgage Conditions as registered with reference
number
BC2/2006 and referred to in clause 14 of annexures ABL3 to ABL7’
and which is applicable by virtue of clause 5 of
Annexure ‘C’
to Annexure ABL1’. In paragraphs 19 of its declaration the
plaintiff set out the relevant terms
and condition of Annexure
ABL8’."
[28] This contention
by the first defendant that the plaintiff has not complied with the
provisions of Rule 86 is, in my view, misguided
and unsustainable.
The plaintiff has annexed the relevant Standard Mortgage Bond
Conditions and has furthermore explained their
relevance to the
essential parts of its declaration. There can be no confusion, in my
view, about these conditions.
THE
PLAINTIFF HAS FAILED TO SET OUT FACTORS THAT A COURT SHOULD TAKE INTO
ACCOUNT
IN DECIDING WHETHER OR NOT TO AUTHORISE THE ISSUING OF A WRIT OF
EXECUTION
[29] This ground
constitutes the first defendant’s fifth ground of exception. In
the summons the plaintiff seeks, among others,
an order in terms of
which certain immovable properties belonging to the first defendant
are declared specially executable. The
first defendant contends that,
although it has claimed that the first defendant’s immovable
properties be declared executable,
the plaintiff has failed to allege
the factors that the court may need to take into account in
determining whether or not it should
authorise the issuing of a writ
of execution. In support of his argument or this ground the counsel
for the first defendant has
referred this court to First Bank Ltd v.
Folscher and Another and similar matters in which the Full Court of
this Division stated
at paragraph [56] that:
“
The
creditor instituting action may include a paragraph for a writ of
execution in the summons provided that the relevant circumstances
identified above are recorded therein. This information is to be
verified by an affidavit where application is made for judgment
by
default, which must be made to the High Court if the granting of the
writ is sought at the same time. ”
Counsel for the
first defendant has taken the pains to set out some of the most
important factors in his heads of argument. I did
not deem it
necessary to repeat them in this judgment as they are irrelevant, in
my view, for the purposes of this judgment.
[30] The weakness in
the first defendant’s contention and his counsel’s
argument lies in the following. In its summons
the plaintiff has not
asked for any authority to issue a writ of execution. Therefore it
was not necessary for the plaintiff to
set out any factors that the
Court would need to take into consideration. An application for an
order to declare certain immovable
property especially executable,
does not, by any stretch of imagination amount to, nor is it equal
to, an application to authorise
the issuing of a writ of execution.
Nowhere in its summons does the plaintiff seek an order for the Court
to authorise the issue
of a writ of execution. Both the contention
and accompanying argument that where a party claims against the other
that certain
properties be declared especially executable such party
must set forth certain factors that a Court need to take into
consideration
before authorising the issue of a writ of execution
are, in my view, invalid. A party need only do so at the stage when
it applies
for the issue of a writ of execution, the exception fails
on this ground too. It is the amended Rule 46 of the Uniform Rules of
Court which provides that where property sought to be attached as the
primary residence of the judgment debtor, no writ of execution
shall
be issued unless the Court, having considered all the relevant
circumstances, orders execution against such property. The
judgment
debtor must apply to the Court for an order in terms of which a writ
of execution must be issued. In the absence of such
an application,
which may sometimes be embodied in the instrument by which payment is
claimed, no Court may authorise the issuing
of a writ of execution.
In this particular case there is no such application and therefore
not necessary to set out any such factors.
[31] In the result I
make the following order:
(1) The defendant's
exception to the plaintiff’s summons is hereby dismissed with
costs.
P.M. MABUSE
JUDGE OF THE HIGH
COURT
Appearances
:
Counsel for the
plaintiff: Adv. Meintjies
Instructed by:
Rorich, Wolmarans & Luderitz Inc
Counsel for the
defendants: Adv. Rein eke
Instructed by:
Deon Rens A ttorneys
Date Heard: 19 A
ugust 2014
Date of Judgment:
13 February 2015