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[2015] ZAGPPHC 392
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Absa Bank Limited v Silver and Another (4984/2010) [2015] ZAGPPHC 392 (29 May 2015)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
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IN THE HIGH COURT OF
SOUTH AFRICA
GAUTENG DIVISION,
PRETORIA
Case number: 4984/2010
In the matter between:
ABSA BANK
LIMITED
Plaintiff
and
J W
SILVER
First Defendant
M SILVER
Second
Defendant
JUDGMENT
(1)
The
plaintiff (Absa Bank Ltd) instituted action against the defendants
(Mr and Mrs Silver) 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 [.......] Township
(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 SILVER
ACCOUNT NUMBER:
[....]
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
60722/90 [the first bond], B 15713/96
[the second bond], B 18363/02
[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
obligation
s
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 [
……
]
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 i
nto
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 [
……
]
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