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
>>
2015
>>
[2015] ZAGPPHC 364
|
|
Absa Bank Limited v S and Others (4984/2010) [2015] ZAGPPHC 364; Rossouw AJ (29 May 2015)
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
Case number: 4984/2010
DATE: 29 MAY 2015
In the matter between:
ABSA BANK
LIMITED
..............................................................................................................
Plaintiff
And
J W
[S………….]
.............................................................................................................
First
Defendant
M
[S……..]
...................................................................................................................
Second
Defendant
JUDGMENT
(1) The plaintiff (Absa Bank Ltd)
instituted action against the defendants (Mr and Mrs S……..)
for payment of the sum
of R1 320 106.67, interest, costs and an order
declaring their immovable property executable, such property having
been mortgaged
by the defendants in favour of the plaintiff.
(2) The plaintiff alleges, in short,
that it concluded four written agreement with the defendants, that
each of these principal
obligations is secured by a registered
covering bond over the defendant’s property and that the
covering bonds, copies of
which are attached to the declaration,
contain all the terms and conditions of the said contracts. It
further alleges that, save
for the amounts, the four written
contracts contain similar terms. These terms are set out in paragraph
12 of the declaration.
The plaintiff further alleges that pursuant to
the contract (sic) certain advances were made to the defendants, that
the defendants
breached the terms of the contract (sic) in that they
failed to make the monthly instalments as agreed, as a result of
which the
full amount has in terms of the contract become due and
payable. A certificate of balance (indebtedness) setting out the
amount
due and payable in terms of the bonds is attached to the
declaration.
(3) The defendants admit the existence
of the covering bonds, but deny that any monies were advanced to them
as alleged and they
also allege a plea of reckless credit as
envisaged in the
National Credit Act 43 of 2005
in respect of the
fourth mortgage bond.
(4) The following is clear from the
covering bonds and the certificate of balance, the authenticity of
which was not in dispute:
(5) On 21 December 1990 a covering bond
was registered in favour of the plaintiff over the defendants'
property, ie Erf 7…..
D…… Ext ….. T……..
(the defendants' property) as security for payment by the defendants
of the
capital sum of R150 000, being the agreed amount the plaintiff
would lend and advance to the defendants after registration of the
bond ’and subject to the terms, conditions and provisions of
this [bond] and [Absa’s] letter to the Mortgagor(s) advising
the Mortgagor(s) of the terms and conditions of approval of the loan
application by the Mortgagor(s)’ and future debts arising
from
any cause whatsoever and interest thereon plus an additional amount
of R32 000 in respect of incidental costs. (The first
bond).
(6) In terms of clause 4 of the first
bond the loan amount would be repaid in consecutive equal monthly
instalments of R2 575.00,
the first payment to be made on the first
day of the month following the registration of the bond.
(7) In terms of clause 10 of the bond
’A certificate purporting to be signed by the General Manager
or Assistant General Manager
or a Branch Manager for the time being
whose authority and appointment need not to be proved or any person
acting in any such capacities
showing the amount owing to the Bank in
respect of the Capital, additional sum and interest and all other
amounts . . . shall be
sufficient and satisfactory proof for the
purpose of obtaining provisional sentence or summary judgment under
this Bond or for
any other purpose and it shall rest with the
Mortgagor(s) to prove that such amount is not owing to Bank.'
(8) On 21 March 1996 a second covering
bond was registered over the defendants' property in favour of the
plaintiff as security
for payment of the capital amount of R270 000,
interest thereon plus an additional amount of R67 000 in respect of
incidental costs
that may from time to time be owing arising from any
cause whatsoever. (The second bond).
(9) On 2 May 2002 a third covering bond
was registered over the defendants' property in favour of the
plaintiff as security for
payment of the capital amount of R420 000
and interest thereon plus an additional amount of R82 000 in respect
of incidental costs
that may from time to time be owing arising from
any cause whatsoever. (The third bond).
(10) On 21 June 2007 a fourth covering
bond was registered over the defendants' property in favour of the
plaintiff as security
for payment of the capital amount of R863 000,
interest thereon plus an additional amount of R157 100 in respect of
incidental
costs that may from time to time be owing arising from any
cause whatsoever. (The fourth bond).
(11) The second to fourth covering
bonds contain, inter alia, the following provisions:
’1. CAUSE OF INDEBTEDNESS - The
Appearer declared that the mortgagor has become indebted to and/or
will from time to time
become indebted to the Bank which indebtedness
arose and/or will arise from any cause whatsoever.’
’6. REPAYMENT - The mortgagor
shall repay all amounts owing by him to the Bank and which are
secured under this bond in accordance
with the provisions of such
written agreement or agreements as have been concluded or which may
be concluded from time to time
hereafter between the mortgagor and
the Bank.’
’7. INTEREST - Interest on all
amounts owing by the mortgager to the bank and secured under this
bond shall be calculated
in the manner or manners and at the rate or
rates determined or to be determined in terms of any written
agreement or agreements
concluded or to be concluded between the Bank
and the Mortgagor from time to time . . .’
’8. DEFAULT - Unless otherwise
agreed in writing, if the Mortgagor fails to observe or perform any
of the terms or conditions
of any written agreement or agreements
between the Mortgagor and the Bank in respect of any amounts which
are secured under this
bond. . . or if the Mortgagor upon demand by
the Bank fails to pay the Bank any amount which is legally claimable
by the Bank or
if the Mortgagor fails to discharge any obligation or
liability to the bank on the due date thereof then all the amounts
which
are secured under this bond shall . . . immediately become
payable in full, . . . '
’9. PROOF OF INDEBTEDNESS - 9.1 -
The amounts at any time owing by the Mortgagor to the Bank which are
secured under this
bond (including any interest at the rate or rates
at which and the period or periods for which interest is calculable)
and the
fact that such indebtedness is due and payable may be
determined and proved by a certificate signed by any manager of the
Bank
whose appointment and authority to sign such certificate need
not to be proved. 9.2 - Such certificate shall be accepted as proof
of the facts stated therein, unless the Mortgagor is able to prove
the facts incorrect.'
(Own italics).
(12) On 1 December 2009 a certificate
was signed by one of the managers of the plaintiff, that reads as
follows:
'CERTIFICATE OF BALANCE
01 DECEMBER 2009
CLIENT NAME: MR JW & MRS M
[S……………..]
ACCOUNT NUMBER:[5……….……]
I, the undersigned SUNAY DU PLESSIS, in
my capacity as Manager:
DEBT RECOVERY SERVICES of ABSA Bank
Limited, and duly authorised thereto, do hereby certify that the
above-mentioned client is indebted
to ABSA Bank Limited, registration
number 86/004794/06 in respect of a MORTGAGE BOND NO B 60……….
[The first
bond], B 1……….. [The second bond], B
1……….. [The third bond], B4 8912/07 [the fourth
bond].
The total amount due and payable on 1
December 2009 is R1 320 106.67 [amount in words] together with
interest at the rate of 8,7%
per annum, capitalised monthly, from 2
DECEMBER 2009 to date of payment.
[Signed] S DU PLESSIS
MANAGER: PRACTITIONER MANAGEMENT
HOME LOANS
(13) The plaintiff called three
witnesses, namely Mr Prinsloo, Ms Dittloff and Ms Khan. Suffice to
say that none of the witnesses
had any personal knowledge of the
defendants' contractual obligations secured by the covering bonds nor
was any document pertaining
to the alleged agreements discovered or
placed before the court.
(14) The only evidence relating to an
outstanding balance in respect of whatever agreement was concluded
between the parties, was
that of the plaintiff's expert witness, Mr
Prinsloo. He testified that, based on the information obtained from
the plaintiff's
main computer frame, the defendants had a flexible
home loan account with number [5……..] In respect of
which he recalculated
the outstanding amount. (The bank statements of
the home loan account from September 1998 onwards formed part of the
court bundle,
which was handed in by agreement between the parties.
The authenticity of the bank statements was not in dispute). Mr
Prinsloo
was cross-examined about a few items appearing on the bank
statements. He further testified that his evidence relating to the
account
was solely based on information obtained from the plaintiff's
main computer frame and that he did not verify any of the figures
with any source documents. He further testified that he did not take
any movements between the opening of the account in 1990 and
September 1998 into consideration because the defendant's account
showed a credit balance of R12.88 on the latter date. He was
further
uncertain as to the meaning of some of the acronyms used for certain
items on the account. He also testified that, subject
to two minor
adjustments that had to be made, his calculations corresponded with
the outstanding amount contained in the certificate
of balance.
(15) The defendants closed their case
without calling any witnesses.
(16) It is trite law that a covering
bond is always accessory to a principal obligation: its existence and
its continued existence
is dependent upon the existence of a future
or a present and future debt which it secures and it can only be
foreclosed on default
of the debtor of one or other of the terms of
the bond.
(17) It follows that the plaintiff
must, first of all, prove that the defendants were in default of the
terms of one or more of
the bonds.
(18) The agreements and their terms as
alleged in the declaration are simply nowhere to be found in any of
the bonds attached to
the declaration: The first covering bond
clearly stipulates that the plaintiff would send a letter to the
defendants advising them
of the terms and conditions upon which the
defendants’ application for a loan would be approved. No such
letter was placed
before the court.
(19) The second to fourth agreements
and their terms as alleged in the declaration are likewise nowhere to
be found in any of these
bonds.
(20) The agreements referred to in the
second to fourth covering bonds were also not placed before the
court.
(21) Furthermore, the declaration does
not allege in terms of which or what 'contract' the alleged advances
were made.
(22) Lastly, although all the bonds
contain a certificate clause it is unclear in terms of which bond(s)
the certificate was issued.
Be that as it may, apart from an account
number, the certificate also tells us nothing about the principal
obligation(s).
(23) Without proof of the terms of the
principal obligation(s), I cannot make any finding as to whether the
defendants were in default
of the terms of the bonds entitling the
plaintiff to foreclose same.
(24) The next question is whether the
bank statements and the certificate of balance could be of any
assistance in proving plaintiff’s
claim.
(25) Bank statements in themselves
cannot be used to prove the drawings and deposits on an account.
(Nedbank Ltd v Van Zyl
1990 (2) SA 478
(AD) 478 D), neither does it
throw any light, without reference to the terms of the agreement to
which it relates, as to whether
the bank’s cause of action is
complete. It does not even establish a prima facie case. It can, at
most, create a suspicion
that money is owing. (Narlis v South African
Bank of Athens
1976 (2) SA 573
(AD) 577D-579H).
(26) The plaintiff also relied on a
certificate that was issued in terms of s 15(4) of the Electronic
Communication and Transactions
Act 25 of 2005 (ETC) in order to give
the bank statements evidential weight. The authenticity of the
certificate was not in dispute.
The certificate was issued by Mr
Seedat, an officer in the employ of the plaintiff. The certificate
reads as follows:
I am a male manager and do hereby
certify as an officer in the employ of ABSA Bank Limited that
annexure “A” [the bank
statements], hereto is a copy and
printout of a data message in respect of account number 5918-9247
made by ABSA Bank Limited in
the ordinary course of business.
I certify this in terms of Section
15(4) of Act 25 of 2002.
(27) Section 15(4) of ETC reads as
follows:
’A data message made by a person
in the ordinary course of business, or a copy or printout of or an
extract from such data
message certified to be correct by an officer
in the service of such person, is on its mere production in any
civil, criminal,
administrative or disciplinary proceedings under any
law, the rules of a self regulatory organisation or any other law or
common
law, admissible in evidence against any person and rebuttable
proof of the facts contained in such record, copy, printout or
extract.’
(Own emphasis).
(28) Because Mr Seedat did not certify
the bank statements as correct, I am of the view that the certificate
is of no value. Even
if it was certified as correct, it would not
have availed the plaintiff without proof of the terms of the
principal obligation(s).
(29) Regarding the probative value of
the certificate of balance, the following:
(30) The certificate in question is
merely an evidentiary tool to facilitate proof of the quantum of the
amount claimed (Senekal
v Trust Bank of Africa Ltd
1978 (3) SA 375
(A) 880H-383F) and of the facts underlying defendant's liability to
pay the said amount.
(31) A certificate issued pursuant to a
certificate clause does not constitute part of a cause of action. It
is not necessary to
allege it and it does not have to be in existence
when the summons was issued. It is not a fact which must be proved
before a plaintiff
is entitled to judgment. If it is alleged,
plaintiff's cause of action will not undergo any change. Its only
function is to serve
as proof and nothing more. (Trust Bank of Africa
Ltd v Senekal 1977 (2) SA (WLD) 592A-B, Trust Bank of Africa Ltd v
Hansa and another
1988 (4) SA 102
(WLD) 104H-105D).
(32) The certificate relied upon by the
plaintiff does not qualify as a certificate in terms of clause 10 of
the first mortgage
bond: It was not signed by a General Manager or
Assistant General Manager or a Branch Manager of the plaintiff as
required by the
said clause.
(33) If the certificate was issued in
terms of clause 9 of the second to the fourth mortgage bonds, then
the following: Clause 9.1
stipulates that the certificate may be used
to determine the outstanding amount and whether the outstanding
amount is due and payable.
Clause 9.2 deals with the information the
certificate should contain in order to make such a determination: It
provides that the
facts contained in the certificate shall be
accepted as proof thereof, unless the mortgagor is able to prove the
facts incorrect.
(34) Therefore, if it was the
plaintiff’s intention to utilise the full potential of the
certificate it should not only have
specified the outstanding amount
but also the facts pertaining to the principal obligation from which
one could determine that
the specified amount is due and payable.
Facts not contained in the certificate can, of course, be proved in
the usual manner.
(35) The certificate only certifies the
specified amount, but it contains no facts from which one can draw an
inference that the
amount is due and payable. The statement that the
specified amount is ’due and payable’ does not avail the
plaintiff
because it is not a fact but a legal conclusion, the
correctness of which cannot be determined ex facie the certificate.
(36) If the certificate had contained
sufficient facts in connection with the principal obligation from
which one could determine
that the specified amount is due and
payable, a prima facie case would have been made out. I am not
suggesting that an otherwise
defective summons can be cured by the
facts contained in a certificate attached to the summons, because it
cannot.
(37) In the premises I find that the
plaintiff has failed to prove its case.
(38) In view of my finding I find it
unnecessary deal with the defence of reckless credit.
(39) In the result, I make an order in
the following terms:
1. An order of absolution from the
instance is given in favour of the defendants.
2. The plaintiff is ordered to pay the
defendants’ costs, including all reserved costs.
A B ROSSOUW A J
DATE: 29 MAY 2015
DATE OF HEARING: 18 AND 19 MAY 2015
DATE OF JUDGMENT: 29 MAY 2015
FOR THE PLAINTIFF
ADVOCATE: J MINNAAR
ATTORNEYS: OLTMAN ATTORNEYS
FOR THE DEFENDANT
ADVOCATE: M SILVER
ATTORNEYS: JACOBSON & LEVY
ATTORNEYS