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[2015] ZAFSHC 3
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Nedbank Ltd v Simcha Properties 12 CC and Others (341/2014) [2015] ZAFSHC 3 (5 February 2015)
IN THE HIGH
COURT OF SOUTH AFRICA
FREE STATE
DIVISION, BLOEMFONTEIN
Case
No: 341/2014
In
the matter between:-
NEDBANK
LTD
…........................................................................................................
Plaintiff
and
SIMCHA
PROPERTIES 12
CC
............................................................................
1
st
Defendant
ZAGEY:
STEPHAN
..............................................................................................
2
nd
Defendant
SCHNEIDER:
AUBREY
.......................................................................................
3
rd
Defendant
JUDGEMENT:
MOENG, AJ
HEARD
ON:
30 JANUARY 2015
DELIVERED
ON:
5 FEBRUARY 2015
[1]
This is an exception against the plaintiff's particulars of claim in
that same lacks the necessary averments to sustain an action.
The
exception is premised on the grounds that: (a) there was no,
alternatively defective compliance with the provisions of section
129
(1) of the National Credit Act (NCA), in that the s 129 notice was
not properly delivered to the first defendant and; (b) the
plaintiff
failed to plead the material terms of the suretyship agreement upon
which the cause of action against the second and
third defendants is
based. I will for ease of reference refer to the parties as they are
referred to in the main action.
[2]
On 29 January 2014 plaintiff issued summons against the defendants
for payment of the sum of R 3 210 841.68. Plaintiff alleges
that it
entered into a loan agreement with the first defendant and pursuant
to such agreement, a mortgage bond was registered in
its favour. The
second and third defendants bound themselves as sureties and
co-principal debtors with the first defendant in favour
of the
plaintiff for due payment of all amounts. It is further averred that
first defendant chose 384 Featherstone Estate Heilbron
as its
domicilium citandi et executandi
for all purposes arising out of the loan agreement as read with the
mortgage bond. Plaintiff asserts that it complied with all
its
obligations in terms of the agreement but first defendant fell into
arrears with its monthly repayments and by reason of such
default,
the full balance owing was due and payable.
[3]
Plaintiff further claims that the agreement is a credit agreement as
defined in the NCA and that it complied with the provisions
of
section 129(1)(a) of the Act in that on 2 December 2013, it delivered
a notice in terms of the Act by registered post to the
chosen
domicilium citandi et executandi
of the defendants. The notice
was delivered to the relevant post office responsible for the
delivering of post to the respective
addresses. Plaintiff asserts
that the post office would, in the normal course, have secured
delivery of the registered item by
way of a “notification slip”
informing the defendants that a registered article was available for
collection.
[4]
In its notice of exception, first defendant contends that clause 16
of the loan agreement provides that the
domicilium
selected by the mortgagor in the
mortgage bond would serve as the mortgagor’s selected
domicilium
for all purposes arising out of the loan agreement, whereas clause 11
of the Sectional Covering Mortgage Bond, provides that the
mortgagor
chooses the mortgaged section as its
domicilium.
The mortgaged section is described as “S2 being part of a
common property, comprising the land
and
the scheme known as FEATHERSTONE ESTATE indicated on Sectional Plan
no. SS 124/2003 in respect of the land and building or buildings
situated at the farm VAALDAM SETTLEMENT NO. 1777, DISTRICT HEILBRON,
PROVINCE FREE STATE …”
[5]
The notice of exception further states that the
“Domestic Item Tracking” sheet relating to the delivery
of the s 129
letter to the first defendant’s
domicilium
citandi et executandi
indicates that
the “…postal item has Returned Back to Sender”,
proof that same was not received by the first
defendant. In
conclusion, the notice provides that the plaintiff failed to plead
the material terms of the suretyship agreement
upon which the cause
of action against the second and third defendants is based.
Mr Els, counsel for defendants,
argued that the notice
was sent to 384 Featherstone Estate Heilbron which was not the first
defendant’s chosen
domicilium
citandi et executandi
and that the
track and trace report does not indicate that a notification was sent
to the first defendant.
[6]
An
Excipient has the duty to persuade the Court that upon every
interpretation which the particulars of claim can reasonably bear,
no
cause of action is disclosed. Compare
Theunissen
en Andere v Transvaalse Lewendehawe Koöp Bpk
1988
(2) SA 493 (A)
at
500E
.
A
charitable test is used on exception, especially in deciding whether
a cause of action is established, and the pleader is entitled
to a
generous interpretation.
(See
First
National Bank Southern Africa v Perry NO and Others
2001
(3) SA 960
(SCA). The court should not look at a pleading “
with
a magnifying glass of too high power”
(See
Kahn
v Stuart and Others
1942 CPD 386
at 391) and the pleadings must be read as a whole and no
paragraph should be read in isolation. (
Southernport
Developments (Pty) Ltd v Transnet Ltd
2003 (5) SA 665
(W) at 669)
[7]
In
McKenzie v Farmers' Co-operative
Meat Industries Ltd
1922 AD 16
at
23 the following definition of 'cause of action' was accepted by the
Appellate Division:
“
.
. . every fact which it would be necessary for the plaintiff to
prove, if traversed, in order to support his right to judgment
of the
court. It does not comprise every piece of evidence which is
necessary to prove each fact, but every fact which is necessary
to be
proved.”
[8]
In order to ensure that a summons is not
excipiable on the ground that it does not disclose a cause of action,
the plaintiff must
allege the
facta
probanda
, (the facts which must be
proved in order to disclose a cause of action) and not the
facta
probantia,
(the facts or evidence which
proves the
facta probanda
).
[9]
In
Beets v Swanepoel
[2010] JOL 26422
(NC), Majiedt AJP (as he then was) upheld an
exception where the plaintiff failed to allege compliance with the
provisions of section
129 of the NCA. He concluded at para 19 that:
“
A
plaintiff must, in my view,
aver
compliance
with these sections in the
summons or particulars of claim to disclose a cause of action where
the suit is based on a credit agreement
to which the Act applies. It
is a material averment, the absence whereof would render the pleading
excipiable. Without the requisite
notice, a claim cannot be enforced.
Section 129(1)(b) is clear and unambiguous that proceedings cannot be
commenced unless the
requisite notice has been given.” (My
emphasis)
In
Rossouw and Another v FirstRand Bank
Ltd
2010 (6) SA 439
(SCA), Maya JA
held that a summons must contain allegations of the manner in which
the s 129(1)
(a)
notice was delivered, so as to place the court in a position to
determine whether there was delivery in terms of the NCA, i.e.
that
the alleged delivery was amongst the alternatives specified in s
56(2)
(a)
of the Act.
[10]
The NCA further provides for specific orders that a court considering
a credit agreement in respect of which
non-compliance with
certain provisions of the Act is alleged, must in some instances
make. These powers are contained in s 130(4)
(b)
, which
provides as follows:
“
[I]n
any proceedings contemplated in this section, if the court determines
that
(a)
. . .
(b)
the
credit provider has not complied with the relevant provisions of this
Act, as contemplated in subsection 130
(a)
, or has approached
the court in circumstances contemplated in subsection (3)
(c)
the court
must
-
(i) adjourn the
matter before it; and
(ii)make an
appropriate order setting out the steps the credit provider must
complete before the matter may be resumed.”
It
therefore appears that in case of non-compliance with s 129(1)
(a)
,
the matter will have to be dealt with in accordance with s 130(4)
(b)
and that the court has no discretion to deal with it in a manner
other than that provided for in the that section.
[11]
Plaintiff alleges that
first defendant chose 384
Featherstone Estate Heilbron as its
domicilium
citandi et executandi
for all purposes
arising out of the loan agreement as read with the mortgage bond,
whereas first defendant in turn alleges, in
its notice of exception,
that the chosen
domicilium
is
S2 Featherstone Estate as indicated on
Sectional Plan no. SS 124/2003 situated at the farm Vaaldam
settlement no. 1777, district
Heilbron. The mortgage bond evidently
does not contain a physical or postal address for purposes of postage
but contains the description
of the property as required for the
Deeds Registry. Clause 1.1.6 of the loan agreement between the
parties conversely describes
the same property as 384 Featherstone
Estate Heilbron. There can therefore be no doubt that the s 129
notice was addressed to the
correct address and any argument to the
contrary is misplaced.
[12]
It is trite that
from the
nature of exception proceedings,
the
court must assume that the facts alleged in the relevant pleading are
correct. The excipient should therefore satisfy the court
that even
with such an assumption, the pleading does not disclose a cause of
action. One will therefore have to accept, as pleaded
in the
particulars of claim, that: (a) plaintiff delivered a notice in terms
of the Act by registered post to the chosen
domicilium
citandi et executandi
of the
defendants; (b) The notice was delivered to the relevant post office
responsible for the delivering of post to the respective
addresses
and; (c) The post office would, in the normal course, have secured
delivery of the registered item by way of a “notification
slip”
informing the defendants that a registered article was available for
collection. It will then be for the defendant
to disprove such
allegations by way of acceptable evidence. No evidence is presented
in exception proceedings.
[13]
All that is required of a pleader where the NCA is applicable, is to
allege compliance with the provisions of section 129 of
the Act and
the manner in which the s 129(1)
(a)
notice was delivered. Such allegations would suffice as the
facta
probanda
to sustain a cause of action.
As correctly pointed out by Mr Louw, counsel for plaintiff, whether
the notice was dispatched to
the defendants by the relevant post
office and whether it came to the attention of the recipients would
require evidence to substantiate
same. Evidence of effective notice
will consequently be part of the
facta
probantia
and not the
facta
probanda.
[14]
As stated in
Beets v Swanepoel
supra
, the lack
of an averment of compliance with s 129(1)
(a)
renders the
particulars of claim excipiable. However, where compliance with s
129(1)
(a)
is alleged but it is disputed by the defendant
because the notice was sent to an incorrect address, or it was not
sent to the addressee
by the post office as averred in
casu,
the exception procedure is not the appropriate remedy to address such
non-compliance as the pleading itself is not defective. (See
Van
Heerden & Boraine
2011 SA Merc LJ 59 – ‘The
conundrum of the non-compulsory compulsory notice in terms of section
129(1)
(a)
of the National Credit Act’).
[15]
Mr Els argued that an order as contemplated in s 130(4)
(b)
should be made and the plaintiff be
ordered to complete the necessary steps before the matter may be
resumed
. It is of importance to note that, in its
particulars of claim, plaintiff alleges that the notice was delivered
to the relevant
post office responsible for the delivering of post to
the respective addresses and that the post office would, in the
normal course,
have secured delivery of the registered item by way of
a “notification slip” to the recipient. First defendant
in turn
states in its notice of exception that the Domestic Item
Tracking sheet indicates that the postal item has returned back to
sender,
proof that same was not received.
[16]
As was stated in
Sebola
and Another v Standard Bank of South Africa Ltd and Another
2012 (5) SA 142
(CC) and
Kubyana
v Standard Bank of South Africa Ltd
2014 (3) SA 56
(CC)
,
there is no general requirement that the notice be brought to the
consumer's subjective attention by the credit provider, or that
personal service on the consumer is necessary for valid delivery
under the Act. It is however required of the credit provider to
provide proof that the notice was delivered to the correct post
office. As indicated in
Sebola
supra
, “it
may reasonably be assumed . . . that notification of the arrival of
the section 129 notice at the Post
Office reached the consumer and
that a reasonable consumer would have ensured retrieval of the item”.
If the credit provider
has complied with the requirements set
out above, it will be up to the consumer to show that the notice did
not come to his
attention and the reasons why it did not.
Mhlantla AJ stated in
Kubyana
supra
at 72 A-B that:
“
The
ultimate question is whether delivery as envisaged in the Act has
been effected. In each case, this must be determined by evidence.”
[17]
From the facts in
casu,
plaintiff
has made the necessary averments in the summons in compliance with s
129. First defendant will therefore have to lead
evidence for the
court to determine whether the notice came to his attention or not
and it is only after such evidence, should
the court be satisfied
that the provisions of s 129 has not been complied with, that an
order in terms of s 130(4)
(b)
will be made. I will therefore, in the absence of evidence to the
contrary, not be able to conclude that
the credit provider has
not complied with the relevant provisions of the Act, as envisaged by
s 130(4)
(b).
The first ground of exception is therefore
without merit.
[18]
The second ground that
the plaintiff failed to
plead the material terms of the suretyship agreement upon which the
cause of action against the second and
third defendants is based, is
likewise not well taken. Plaintiff pleaded that the second and third
defendants bound themselves
as sureties and co-principal debtors with
the first defendant in favour of the plaintiff on 24/07/2006 at
Midrand for due payment
of all amounts. The said suretyship agreement
was attached to the particulars of claim with its contents
incorporated therein.
[19]
The attached agreement at first glance complies with the provisions
of the General Law Amendment Act 50 of 1956 and sets out
a valid
contract of suretyship in that it is embodied in a written document
signed by the sureties. The document sets out the identity
of the
creditor, the sureties, and the principal debtor. It further contains
the nature and amount of the principal debt and the
indebtedness of
the principal debtor. The
causa
of
their indebtedness can be gleaned from the agreement as well as the
amount that is due. Mr Els was at pains to explain in what
respect
this ground of exception should succeed. These averments disclose a
cause of action.
[20]
In the result I make
the following order:
1.
The exception is
dismissed with costs.
_________________
L.B.J.
MOENG, AJ
On
behalf of Excipient/Defendant: Adv. J. Els
Instructed
by:
Lovius
Block
BLOEMFONTEIN
On
behalf of Respondent /Plaintiff: Adv. M.C. Louw
Instructed
by:
Hill
McHardy & Herbst
BLOEMFONTEIN