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[2015] ZAGPPHC 384
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Standard Bank of South Africa v Kunene and Another (1897/2011) [2015] ZAGPPHC 384 (5 June 2015)
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Certain
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REPUBLIC
OF SOUTH AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
CASE
NO: 1897/2011
DATE:
5/6/2015
In
the matter
between:
STANDARD
BANK OF SOUTH
AFRICA
Plaintiff
and
SIPHO
THIBA
KUNENE
First
Defendant
ATTOLINAH
NTOMBIFUTHI
KUNENE
Second
Defendant
J U D G M E N T
DEWRANCE
AJ
[1]
In
these proceedings, the plaintiff (hereinafter referred to as
“Standard Bank”) seeks a judgment against the defendants,
jointly and severally, in the amount of R229 268.72; interest at
the rate of 8.70% per annum, calculated daily and compounded
monthly
in arrears from 1 October 2010 to date of payment, both days
inclusive; payment of the monthly insurance premiums of R119.18
from
1 October 2010; and costs on an attorney own client scale as
provided for in paragraph 2.3.2 of the first mortgage bond
and
paragraph 2.4 of the second mortgage bond.
[2]
In
addition to the aforementioned orders, Standard Bank also seeks an
order declaring the following property executable:[……] Ebony
Park Township, Registration Division IR, Province of Gauteng, held by
title of transfer T3960/1996 (“the property”).
It is
common cause that this is the defendants’ primary residence.
[3]
At
the outset I must point out that compliance or otherwise with the
National Credit Act, Act 34 of 2005, is not an issue as this
has not
been raised during the trial.
[4]
Before
I proceed, it is important to restate the principles of the function
of pleadings. The function of pleadings is threefold:
[1]
[4.1]
they
must ensure that both parties know what the points of issue are
between them, so that each party knows what case he has to
meet.
He or she can thus prepare for trial knowing what evidence he or she
requires to support his own case and to meet that
of his opponent.
The object of pleading is to clarify the issues between the parties
and a pleader cannot be allowed to direct
the attention of the other
party to one issue, and then at the trial attempt to canvass
another;
[2]
[4.2]
pleadings
are to assist the court by defining the limits of the action.
In
Robinson
v Randfontein Estates GM Co Ltd
[3]
,
the court stated the following:
“
The
object of pleadings is to define the issue; and the parties will be
kept strictly to their pleas where any departure would cause
prejudice or would prevent full enquiry. But within these
limits the court has a wide discretion. For pleadings are
made
for the court, not the court for pleadings.
”
[4.3]
pleadings
place the issues raised in action on record so that when a judgment
is given such a judgment may be a bar to the parties
litigating again
on the same issues, enabling a party to raise a defence of
res
judicata
if the other party attempts to raise the same issues.
[5]
The
reasons for restating the principles on pleadings will become
apparent later.
[6]
A
proper interpretation of the issues in this matter requires an
examination of the facts that gave rise to the plaintiff’s
claim.
STANDARD BANK’S
CLAIM
[7]
It
is common cause that the parties entered into two written loan
agreements. I deal with the two loan agreements shortly.
To secure the defendants’ indebtedness to the plaintiff,
plaintiff registered two mortgage bonds over the defendants’
home.
[8]
The
loan agreements were entered into pursuant to an agreement entered
into between Standard Bank and the defendant’s erstwhile
employer, Nestle South Africa (Pty) Ltd (“Nestle”).
The details of the agreement between Nestle and Standard
Bank were
not discovered. However, nothing turns on this.
THE FIRST LOAN
AGREEMENT
[9]
The
first loan agreement was entered into on 15 October 1995 (“the
first loan agreement”). In terms of the
first loan
agreement, Standard Bank lent and advanced the defendants an
amount of R57 000.00, which was repayable over
240 months.
[10]
Standard
Bank required the defendants to acquire life assurance over the
property and it is common cause that the defendants arranged
“
life
cover”
.
In terms of the first loan agreement “
premiums
in respect of life assurance policies”
could apply in repayment of the first loan. It appears that the
monthly premiums were included in the monthly instalments.
It
is not apparent what the monthly premiums were at that stage.
However, nothing turns on this point as Standard Bank is
claiming the
payment of the monthly insurance premiums from 1 October 2010.
THE SECOND LOAN
AGREEMENT
[11]
After
entering into the first loan agreement, the parties, on 8 May
2006, entered into the second loan agreement (“the
second loan
agreement”). In terms of the second loan agreement,
Standard Bank lent and advanced the defendants an amount
of
R170 000.00 on the same terms and conditions as the first loan
agreement.
[12]
In
Standard Bank’s letter, dated 20 April 2006, wherein it
informed the defendants that the second loan was successful, it
informed the defendants that:
“
To
protect your family against financial burdens that could follow
tragedies such as death or disability, we encourage you to ensure
that your home loan is adequately protected, for example, by taking
out Home Loan Protection Plan cover or sufficient life insurance
cover.
”
[13]
In
the same letter, the defendants were informed that the insurance
premium will be calculated “
on
the minimum replacement value of the improvements erected or to be
erected on the property for insurance purposes of R309 397.00
”.
The defendants were further informed that the “
values
represent the costs of replacing or reinstating on the same site,
property of the same kind or type, but not better or larger
than the
original insured property when it was first erected
”.
[14]
The
second loan agreement also required the defendants to insure the
property. Clause 5.1 of the second loan agreement deals with
homeowners’ insurance and life assurance and provides as
follows:
“
5.
Homeowners Insurance and Life
Assurance
5.1 The
Bank may at any time during the period of the loan, in the name of
the Bank and/or the Borrower, insure the
buildings with an insurance
company nominated by the Bank against loss of damage by fire and such
other risks (including political
riot or civil commotion) as the Bank
decides is necessary. The insured amount will not be for less
than the minimum replacement
value of the buildings from time to time
as determined by the Bank. The Borrower must ensure compliance
with the Borrower’s
responsibilities in the letter of grant and
will have no claim against the Bank for any loss suffered by the
Borrower if the replacement
value for insurance purposes is found to
be different to the actual replacement value. The value
determined by the Bank,
based on the assessment, will be taken to be
the reasonable replacement value for the purposes of the Act.
5.2 If the
Bank agrees that the Borrower can arrange his own Homeowners
Insurance cover with an insurer of his choice,
the Borrower agrees
that he will cede his insurance policy to the Bank.
5.3 The
Bank may, without reference to the Borrower, and without requiring
the Borrower’s consent, in the name
of the Bank and/or the
Borrower, adjust, settle, compromise and/or submit to arbitration any
claims, demands, disputes and other
matters arising from any policy
of insurance referred to in clause 5.1 above, and/or may institute or
defend legal proceedings
arising from the policy. The Borrower
will have no claim against the Bank and/or any of its employees
arising from an act
or omission of the Bank and/or any of its
employees in exercising or failing to make use of the authority
granted in terms of clause
5.3, unless in exercising this authority,
a claim arises as a result of wrongful or unlawful acts, or
intentional misconduct, on
the part of the Bank.
5.4 The
Bank may grant receipts for any monies received by it in respect of
any insurance claim, settlement or compromise
and may, at its
discretion, use the monies wholly or partially, either in reduction
or payment of any amount due under the loan
agreement and/or for the
restoration of the buildings which are damaged or destroyed, under
such conditions as the Bank may determine.
5.5
The Bank may pay any premium on any
policy of insurance referred to in clause 5.1 above or any life
assurance policy taken out by
the Borrower in connection with the
loan or on any life assurance or other policy referred to in the Act,
including any policy
which may be ceded or payable to the Bank as
additional security for the debt, and such payment will form part of
the amount due
under the loan agreement and the Bank may debit such
payment to any account of the Borrower with the Bank.
5.6
Nothing in the loan agreement
will oblige the Bank to take out or pay any premiums on any insurance
on behalf of the Borrower.
If an insurer repudiates any
insurance policy for any reason, the Borrower will have no claim
against the Bank
.
5.7
The Bank reserves the right, at any stage, in the sole and absolute
discretion of the Bank, to terminate the existing
insurance or to
elect not to renew an insurance policy. If the Bank elects
either of these options, it will notify the Borrower
of its decision
in writing and it will furnish reasons for the decision.
”
(
emphasis
added
)
[15]
In
summary, clause 5 of the second loan agreement broadly provides that
homeowners insurance is necessary; the premium of the insurance
will
be included in the monthly instalment and, should the insurer
repudiate the insurance policy, the defendants would not have
recourse against Standard Bank.
LIFE ASSURANCE POLICY
[16]
A
major portion of the trial dealt with the status of the life
assurance cover acquired by the defendants over the property.
[17]
Shortly
after the first loan agreement was granted, during the course of
1995, the first defendant attended a workshop held at a
division of
Standard Bank, E Bank, in Johannesburg. The workshop was
conducted by one Thomas. The first defendant
does not know his
further particulars and/or his designation.
[18]
He
attended the workshop with other people. The purpose of the
workshop, according to the first defendant, was to inform the
audience of the rights and responsibilities under the loan
agreement. The first defendant alleged that Thomas informed the
workshop that the life assurance policy covered both death and
disability. As a result of this information, the defendants
did
not take any further action.
[19]
At
some point after the first loan was granted, an entity, Standard Bank
Insurance Brokers (“SBIB”) entered the fray.
SBIB
is a financial adviser as contemplated by the Financial Advisory and
Intermediary Services Act, Act 37 of 2002 (“FAIS”).
It further appears that SBIB arranged the insurance cover with
Liberty Life for and on behalf of the defendants. I return
to
this aspect later.
[20]
Ms
Linah Mabena testified that SBIB is a separate and distinct entity
from Standard Bank with its own legal personality.
[21]
The
first defendant testified that although the insurance cover was
acquired he never received a copy of the policy document.
DEFENDANT’S
BREACH OF THE AGREEMENTS
[22]
It
is common cause that the defendants breached the two loan
agreements. In paragraph 7 of the plaintiff’s declaration
it pleads the following:
“
7.1
The Defendants acted in breach of their obligations in terms of the
loan agreements, by failing
to pay the amounts due to the Plaintiff,
and has persisted with such breach, notwithstanding demand in terms
of the provisions
of the loan agreements.
7.2
In the premises all amounts secured by the mortgage bonds became due
and payable, and the
Plaintiff became entitled to institute
proceedings for an order declaring the mortgaged property
executable.
”
[23]
In
its amended plea the defendants admitted that: they breached the
agreements; all amounts in terms of the agreements became due
and
payable; that Standard Bank is entitled to institute these
proceedings and for an order declaring their home specifically
executable.
DEFENDANTS’
DEFENCES
[24]
The
plaintiff, in paragraph 8 of its declaration, pleaded that, as a
consequence of the breach by the defendants, an amount of R229 268.72
is outstanding on the agreements.
[25]
In
response to this allegation, the defendants, in their plea, pleaded
that:
[25.1]
they
deny the outstanding amount;
[25.2]
their
default was “
covered
by disability insurance/cover taken out by them at the time of the
taking of the loan when the Plaintiff at the specific
instance of the
Plaintiff
”;
[25.3]
in
the event that the “
disability
insurance defence
”
is not upheld, the plaintiff is “
estopped
from relying on the lack of disability cover in that during 1996 when
the first mortgage bond and loan agreement was approved
the
Plaintiff directly or alternatively indirectly orally and in writing
indicated to the First and Second Defendant that the insurance
cover
extended to disability cover
”
.
(
emphasis
added
)
[26]
In
its replication, Standard Bank took issue with all the defences
raised by the defendants. In its replication it pleaded
that:
“
1.1
...
1.2
…, the Plaintiff specifically states that clause 5.6 of the
terms and conditions
of loans secured by mortgage bonds, applicable
to the loan agreements, specifically excludes any liability of the
plaintiff and
provides as follows:
‘
5.6
Nothing in the loan agreement will oblige the Bank to take out or pay
any premiums for any
insurance on behalf of the Borrower. If
any insurer repudiates any insurance policy for any reason, the
Borrower will have
no claim against the Bank.
’”
ADMISSIONS SOUGHT AND
PROVIDED BY THE PARTIES
[27]
Before
the trial, the parties held several pre-trial conferences as
contemplated by Rule 37 of the Uniform Rules of Court (“the
Rules”).
[28]
The
defendants admitted that the insurance cover was taken out with
Liberty Life under Policy No. [………] and
that the
insured amount was for R300 000.00. The defendants alleged
that the plaintiff was in possession of the policy
document.
[29]
On
20 January 2015, the plaintiff sought further admissions. It
handed the defendants a copy of the bank statements under
account
number [……] dated 20 January 1998 to 2 October
2014. The defendants were required to indicate:
each of the
debits on the bank statements that they admit; each of the debits on
the bank statements that they deny; each of the
credits on the bank
statements that they admit; and each of the credits on the bank
statements that they deny.
[30]
The
defendants only admitted the entries up to 2 December 2009 but
disputed the rest of the entries. I will return to
this aspect
later.
[31]
The
defendants stated that they rely on the policy discovered as item 3
of the plaintiff’s supplementary discovery affidavit
dated
19 September 2014 and attached a copy of the policy wording.
[4]
[32]
I
now turn to deal with the defences raised by the defendants.
For convenience, I will deal with the defendants’ defences
in
the following order:
[32.1]
the
“
insurance
disability cover
”
defence;
[32.2]
estoppel;
and
[32.3]
the
quantum.
INSURANCE DISABILITY
COVER DEFENCE
[33]
The
defendants contend that they entered into an insurance agreement
which indemnified them from liability should the defendants
become
disabled.
[34]
It
is common cause that the first defendant was declared permanently
disabled with effect from 27 July 2007
[35]
I
have already indicated that, as a condition of the loan agreements,
Standard Bank required the defendants to acquire life insurance.
[36]
As
indicated earlier, the defendants conceded that the policy was
entered into between them and Liberty Life.
[37]
A
letter dated 16 March 2004, from Standard Bank Insurance Centre,
informed the addressees that their “
home
loan insurance policy with Standard Bank
”
had been upgraded to a “
DreamStart
Protection Plan
”
with effect from 1 May 2004. The letter is not addressed to a
specific person. Ms Linah Mabena testified that
this is a
generic letter sent out to DreamStart policyholders. The letter
provides as follows:
“
Re:
The DreamStart Protection Plan upgrade
At Standard Bank, we
are constantly looking for ways of improving our products to meet our
customers’ changing needs.
We are pleased to inform you
that your home loan insurance policy with Standard Bank has been
upgraded to a DreamStart Protection
Plan with effect from 1 May
2004.
This has resulted in
your policy paying out a total outstanding balance on your home loan
in the event of your death. Now,
you will have peace of mind
knowing that your bond repayments will not burden your family should
something unexpected happen to
you.
Previously your policy
would only have paid out an amount proportionate to your income
contribution leaving your family with unwanted
debt.
Below is a summary
of your new DreamStart Protection Plan Policy Schedule reflecting
your new premium due.
Account number
:
Insured Life/s
:
Type of cover
: Death Only
Current premium
: R27.1111
Total premium due
from 1 May 2005: R61.88
…
A copy of the
statutory notice and obligatory disclosure, which you are entitled to
as a long term insurance policy holder are (sic)
attached. The
obligatory disclosure explains the terms and conditions of your
policy.
…”
[38]
Ms
Linah Mabena, on behalf of SBIB, testified that the policy document
would be reviewed from time to time. Several versions
of the
statutory notice and obligatory disclosures (“statutory
notice”) were placed before me. A version dated
April
2010 provided for death cover only. However, paragraph 8 of the
April 2010 statutory notice, which contained important
conditions and
exclusions applicable to death benefits, provided as follows:
“
8.
Important conditions and
exclusions applicable to death benefit
The
insured must provide any reasonable medical evidence of death,
total
and permanent disability
,
or impairment and should at his/her own expense undergo any medical
examination required by Liberty Active.
In
addition to the pre-existing condition exclusion specified above,
Liberty Active will not be liable if a claim arises directly
or
indirectly from the Insured Persons:
a
Wilful or material violation of any criminal law; or
b
Deliberate involvement in any riot, uprising, civil commotion,
seizing of power, martial law, war, the
overthrowing or influencing
of any government or ruling body by force, terrorism or violence; or
c
Exposure to atomic energy, nuclear fission or reaction, biological or
chemical hazards and warfare
agents; or
d
Refusal to seek and follow medical advice; or
e
Attempted suicide or deliberate self-infliction of injury; or
f
Regular participation in any hazardous sport or pursuit.
Regular participation is defined
as participating in an activity more
than once a year.
g
If the cause of death/impairment/
disability
is
as a result of any criminal and/or illegal actions on the part of the
insured, all benefits will be forfeited and Liberty Active
reserves
the right…
”
(
emphasis
added
)
[39]
The
2010 statutory notice differs from the 2004 statutory notice in that
the exclusions in paragraph 8 contained in the 2010 statutory
notice
is not contained in the 2004 statutory notice. A further
statutory notice and obligatory disclosure, dated January
2011,
provides that the insured is only covered for death. The
conditions and exclusions are similar to the 2010 statutory
notice.
[40]
A
reading of the statutory notice documents is clear. The
insured, and in this case, the defendants, were only covered for
death, not disability.
[41]
The
evidence points clearly to the fact that the defendants were only
covered for death and not disability by Liberty Life.
The
statutory notices cannot be understood in another way.
[42]
Accordingly,
this defence cannot be upheld.
ESTOPPEL
[43]
The
defendants contend that should their aforementioned defence not be
upheld, that the plaintiff be “
estopped
from relying on the lack of disability cover in that during 1996 when
the first mortgage bond and loan agreement was approved
the Plaintiff
alternatively indirectly orally and in writing indicated to the First
and Second Defendants that their insurance
cover extended to
disability cover
”.
[44]
The
essence of the doctrine of estoppel by representation is that the
person is precluded or estopped from denying the truth of
a
representation previously made by her or him to another person if the
latter, believing in the truth of the representation, acted
thereon
to her or his detriment.
[5]
[45]
Estoppel
usually operates between the actual (or deemed) representor and the
actual (or deemed) representee. Estoppel should,
in principle,
not be confused with vicarious liability.
[6]
The requirement that, to found estoppel there must have been a
representation, made by the representor to the representee,
does not
mean that the representor (the person against whom the estoppel is
raised) necessarily made the representation himself.
A person
can be estopped from denying the truth of a representation made by
someone who was entitled in law to do so on his behalf,
for example,
his agent.
[7]
[46]
Sonnekus
[8]
explains that a person can be held bound by a representation not made
by himself or by someone representing him, but by another
person,
when the other person made a representation regarding him (the person
estopped), or his property and he neglected to speak
or act in
circumstances where he should have spoken or acted in order to avoid
prejudice being caused to the person or acted on
the faith of the
representation. An example can be found in
TW Beckett
& Co v B Gundelfinger.
[9]
The plaintiff claimed the ejectment of the defendant from
certain fixed property which he had bought at a public auction.
The defendant resisted the claim on the ground that he had a lease
over the property which still had a few years to run.
He was
held to be estopped from raising the defence because he had, by
remaining silent and failing to object when he heard the
auctioneer
say, in reply to a question by the plaintiff’s representatives,
that there was no lease on the property, led the
plaintiff to believe
that the property was free of any lease. An estoppel which
arises in this way is usually referred to
as “
estoppel
by silence
”,
the person still being regarded as having by silence made the
representation which he is estopped from denying.
[47]
In
casu
the
insurer was Liberty Life, as conceded by the defendants. I find
it difficult to draw the line back to Standard Bank.
It is
clear that SBIB was at all relevant times the intermediary between
Liberty and the defendants.
[48]
For
the defendants to succeed, the defendants must show that an official
from Standard Bank had the necessary authority to bind
Liberty Life.
No such evidence was led during the course of this trial.
Accordingly, this defence can also not be upheld.
QUANTUM DEFENCE
[49]
The
defendants deny that they owe the applicant the amount of
R229 268.72. The essence of the defendant’s defence
is that they dispute that they made the deposit of R66 243.64 on
2 December 2009. This defence is confusing because
if the
aforementioned amount is disregarded the defendants’
indebtedness to Standard Bank is more than that claimed by Standard
Bank in these proceedings. I nevertheless deal with this
point. I now turn to deal with the deposit made.
[50]
During
the first defendant’s presentation of his evidence, he was
adamant that he did not make the deposit on 2 December
2009.
In fact, the evidence shows that the first defendant queried this
amount with Standard Bank on several occasions.
[51]
I
am faced with two different versions of which a deposit of R66 243.64
was made on 2 December 2009 into the defendants’
home loan
account. The first defendant disputes that he made the
deposit. Standard Bank disputes that it, out of its
own accord,
made the deposit.
[52]
The
technique generally employed by courts in resolving factual disputes
was summarised in
Stellenbosch
Farmers’ Winery Group Ltd and Another v Martell Et Cie and
Others
.
[10]
In this case, the court said the following:
“
To
come to a conclusion on the disputed issues a court must make
findings on (a) the credibility of the various factual witnesses;
(b)
their reliability; and (c) the probabilities. As to (a), the
court’s finding on the credibility of a particular
witness will
depend on its impression about the veracity of the witness.
That in turn will depend on a variety of subsidiary
factors, not
necessarily in order of importance, such as (i) the witness’s
candour and demeanour in the witness-box, (ii)
his bias, latent and
blatant, (iii) internal contradictions in his evidence, (iv) external
contradictions with what was pleaded
or put on his behalf, or with
established fact or with his own extra-curial statements or actions,
(v) the probability or improbability
of particular aspects of his
version, (vi) the calibre and cogency of his performance compared to
that of other witnesses testifying
about the same incident or events.
As to (b), a witness’s reliability will depend, apart from the
factors mentioned under
(a)(ii), (iv) and (v) above, on (i) the
opportunities he had to experience or observe the event in question
and (ii) the quality,
integrity and independence of his recall
thereof. As to (c), this necessitates an analysis and
evaluation of the probability
or improbability of each party’s
version on each of the disputed issues. In the light of its
assessment of (a), (b)
and (c) the court will then, as a final step,
determine whether the party burdened with the onus of proof has
succeeded in discharging
it. The hard case, which will
doubtless be the rare one, occurs when a court’s credibility
findings compel it in one
direction and its evaluation of the general
probabilities in another. The more convincing the former, the
less convincing
will be the latter. But when all factors are
equipoised probabilities prevail.
”
[53]
Both
Ms Sohini Rubykisoon (“Rubykisoon”) and the
first defendant’s evidence was credible, but the probabilities
are in favour of Standard Bank. Accordingly, I find that, based
on the test in the SFW Group matter
supra
that Standard Bank’s version of events is to be accepted.
[54]
In
any case, as I have earlier indicated, should the defendant’s
version of events be accepted, their indebtedness to Standard
Bank
would be more than what Standard Bank claims in these proceedings.
[55]
The
defence must fail.
ORDER TO DECLARE
PROPERTY EXECUTABLE
[56]
Standard
Bank seeks an order that the property be declared executable.
In
Firstrand
Bank v Folscher
,
[11]
the full court of this court stated that absent any extraordinary
circumstances a judgment creditor will normally be entitled to
enforce his judgment by executing against the immovable property that
is bonded as security. The special hypothec registered
in
favour of the creditor, as security for the monies advanced for the
purchase of the home and capital loans, is entered into
between
borrower and lender consciously, deliberately and for mutual
benefit.
[57]
The
full court further stated that it is impossible to provide a list of
circumstances that might be regarded as extraordinary,
which would
persuade a court to decline a writ of execution. They would
usually consist of factors that would render enforcement
of the
judgment debt an abuse of the process, which a court is obliged to
prevent. The creditor’s conduct needs to
be wilfully
dishonest or vexatious to constitute an abuse. The consequences
of intended writs against hypothecated properties,
although
bona
fide
,
may be iniquitous because the debtor will lose his home, while
alternative modes of satisfying the creditor’s demands might
exist, that would not cause any significant prejudice to the
creditor.
[58]
The
full court identified some of the factors that need to be taken into
consideration by a court when deciding whether a writ should
be
issued or not. They are:
·
whether
the mortgaged property is the debtor’s primary residence;
·
the
circumstances under which the debt was incurred;
·
the
arrears outstanding on the bond when the latter was called up;
·
the
arrears on the date default judgment is sought;
·
the
total amount owing in respect of which execution is sought;
·
the
debtor’s payment history;
·
the
relevant financial strengths of the creditor and the debtor;
·
whether
any possibility exists that the debtor’s liability to the
creditor may be liquidated within a reasonable period, without
having
to execute against the debtor’s residence;
·
the
proportionality of prejudice the creditor might suffer if execution
were to be refused, compared to the prejudice the debtor
would suffer
if execution went ahead and he lost his home;
·
whether
any notice in terms of section 129 of the National Credit Act was
sent to the debtor prior to the institution of the action;
·
the
debtor’s reaction to such notice, if any;
·
the
period of time that elapsed between the delivery of such notice and
the institution of the action;
·
whether
the property sought to be declared executable was acquired by means
of, or with the aid of, a state subsidy;
·
whether
the property is occupied or not;
·
whether
the property is in fact occupied by the debtor;
·
whether
the immovable property was acquired with monies advanced by the
creditor or not;
·
whether
the debtor will lose access to housing as a result of execution being
levied against his home;
·
whether
there is any indication that the creditor has instituted action with
an ulterior motive or not;
·
the
position of the debtor’s dependants and other occupants of the
house, although in each case these facts will have to be
established
as being legally relevant.
[59]
Standard
Bank showed that when the first defendant was declared permanently
disabled he received a lump sum in the amount of R829 329.10.
The first defendant’s bank statements show that the lump sum
was deposited into the first defendant’s account on 1
September
2009. On the same day, he withdrew an amount of R274 000.00
to buy a BMW motor vehicle. His bank records
indicate that he
made regular large withdrawals from his bank account, to such an
extent that his account reflected a negative
balance during the
course of March 2010. The reason for the withdrawal, according
to the first defendant, was that he purchased
a motor vehicle and
lent money to his brother and that he generally withdrew all his
money in the Standard Bank account in order
to deposit these amounts
into his other account because at that stage he was angry with
Standard Bank for not honouring “
their
policy
”.
[60]
When
summons was issued on 14 January 2011, the first defendant had
already withdrawn all the monies from his Standard Bank account.
[61]
The
first defendant testified that he is unemployed and only receives a
disability grant of R1 300.00 per month. He occupies
the
property with his wife, his two children and two grandchildren.
They are all unemployed. The defendant’s
wife is ill and
is in no position to find employment.
[62]
This
is indeed a sorry state of affairs. The first defendant stopped
making payments towards the two loan agreements.
On the day
that the lump sum amount for the disability was paid into his
account, on 1 September 2009, the defendants’
outstanding
amount in respect of the home loan amounted to R267 045.66.
He had more than enough money to settle the
bond. Instead, he chose
to purchase a BMW motor vehicle in the amount of R274 000.00 on
the same day he obtained the lump
sum amount. This was clearly
a poor choice. He continued to squander the disability lump
sum, to such an extent that
today he is destitute.
[63]
The
first defendant testified that he is not in a position to satisfy the
judgment debt.
[64]
Having
said that, I have to weigh the prejudice Standard Bank may suffer if
execution was to be refused. As indicated, the
first defendant
testified that he is in no position to pay the judgment debt and his
wife and children are unemployed.
[65]
Should
an order not be granted to declare the property executable, the
judgment cannot be enforced, which means that Standard Bank
will not
be able to recover any money from the defendants in the foreseeable
future.
[66]
In
this case, there are no extraordinary circumstances which will
prevent Standard Bank from enforcing its judgment by executing
against the property. Accordingly, I am satisfied that Standard
Bank has made out a case for an order that the property be
declared
specifically executable.
ORDER
[67]
Accordingly,
judgment is granted against the defendants, jointly and severally, in
the following terms:
(a)
payment
in the sum of R229 268.72;
(b)
interest
thereon at the rate of 8.70% per annum, calculated daily and
compounded monthly in arrears from 1 October 2010 to date
of payment,
both dates inclusive;
(c)
payment
of the monthly insurance premiums of R119.18 from 1 October
2010;
(d)
an
order declaring the following property specifically executable:
Erf [….],
Ebony Park Township
Registration Division
I.R., Province of Gauteng
Measuring 298 (two
hundred and ninety-eight) square metres
Held by Deed of Transfer
No T3960/96;
(e)
an
order in terms of Rule 46 to authorise the Registrar to issue a
warrant of execution against the immovable property to obtain
an
attachment over the property and an ultimate sale in execution;
(f)
costs
on an attorney and own client scale as provided for in paragraphs
2.3.2 and 2.4 of the respective mortgage bonds.
___________________________
DEWRANCE,
AJ
Representation
for the plaintiffs
:
Counsel
Adv M T Shepherd
Instructed by
Attorneys:
Findlay and Niemeyer
1027
Francis Baard Street
Hatfield,
Pretoria
Ref: M
Ludik/meg/F3582
Representation for
respondent
Counsel
Adv M Steenekamp
Instructed
by
[1]
Daniels
Beck’s
Theory
and Principles on Pleadings and Civil Actions
(6
th
ed) Butterworths, p 43
[2]
See
Rule 18:
Nyandeni
v Natal Motor Industries Ltd
1974 (2) SA 274
(D);
Kali
v Incorporated General Insurance Ltd
1976 (2) SA 179
(D) at 182;
Imprefed
(Pty) Ltd v National Transport Commission
1996 (3) SA 94 (A).
[3]
1925
AD 173
at 198
[4]
The
policy is also listed as item 36 of the defendants’
supplementary discovery affidavit dated 15 July 2013
[5]
See
Aris
Enterprise (Finance) (Pty) Ltd v Protea Assurance Co Limited
[1981] 4 All SA 238
(A),
1981 (3) SA 272
(A) at 291; see
SA
Broadcasting Corp v Coop
[2006] 1 All SA 333 (SCA), 2006 (2) SA 217 (SCA)
[6]
See
Sonnekus,
The
Law of Estoppel in South Africa
,
49
[7]
Harriram
v Kahn
1950 (2) SA 200
(N) at 202;
Union
Government (Minister of Railways and Harbours) v Landau & Co
1918 AD 2388
at 402
[8]
Sonnekus
supra
at p 50
[9]
(1897)
4 OR77
[10]
2003
(1) SA 11
(SCA) at para [5]
[11]
2011
(4) SA 314
(GNP)