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[2015] ZAFSHC 168
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Wolfaard v Trytsman and Another (2923/2015) [2015] ZAFSHC 168 (4 September 2015)
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Case
number: 2923/2015
In
the matter between:
ISABELLA
JOHANNA
WOLFAARD
Applicant
and
JAN
JACOB PETRUS TRYTSMAN
1st
Respondent
MAGDALENA
PETRONELLA TRYTSMAN
2nd Respondent
CORAM:
RAMPAI, J
HEARD
ON:
27 AUGUST 2015
JUDGMENT
BY:
RAMPAI, J
DELIVERED
ON:
4 SEPTEMBER 2015
[1]
These were motion proceedings. The applicant applies for a
relief whereby the respondents are ordered to pay a capital
amount of
R779 913.23, plus interest thereon at the rate of 14,75% per
annum a tempore morae until the date of final payment;
the
respondents’ farm declared specially executable; the
special notarial bond perfected and the respondents directed
to pay
the costs of this application on the scale as between attorney and
client. Only the 2
nd
respondent resists the application.
[2]
The applicant and Mr. Albert George Sebastian Wolfaardt were husband
and wife. They were married in community of property.
On
11
th
October 2005 the couple entered into a written loan agreement with
the respondents at Hoopstad. The couple lent and advanced
an
amount of R750 000.00 to the respondents, also a married couple.
(vide anx np2)
[3]
The respondents owned an immovable property known as Farm Vergenoeg
491, District Viljoenskroon, Province Free State measuring
85,6532
hectares. As security for the repayment of the loan they
received from the Wolfaardts, the respondents, as the borrowers
caused a mortgage bond to be registered over their landed property in
favour of the applicant and her husband, as the lenders.
The
bond is currently held under title deed number 154/2006. The
mortgage bond was registered on 11
th
October 2005. (vide anx np3)
[4]
Furthermore, the respondents caused a special notarial bond to be
registered over certain of their immovable assets in favour
of the
applicant and her husband as additional security for the repayment of
the capital loan. (vide anx np4). The
special notarial
bond BN173/2006 was registered on 4
th
January 2006. Over and above those two types of securities, the
lenders also obtained a contractual cession from the borrowers
in
respect of the prospective harvest of certain agricultural
produce
.
[5]
The respondents were married to each other out of community of
property. On the 17 December 2014 the 2
nd
respondent filed for a divorce in the Gauteng Division of the High
Court, Pretoria. It would appear that those divorce proceedings
were acrimonious. (vide anx np6 summons read with anx np7
application for interim payment of maintenance in terms of rule
43).
[6]
The respondents have failed to repay the loan. They are
currently in arrears. The applicant instituted these
proceedings
on 23
rd
June 2015 to recover the balance of the debt. The 2
nd
respondent disputes the alleged balance of the debt (vide anx np5).
[7]
The applicant is now a widow. Her husband died on 25
th
July 2011. She is the universal heiress of his entire estate in
terms of the joint will. Moreover, she is the
executrix
of his deceased estate. She was issued with letters of
executorship by the master – (vide anx np1)
[8]
The terms of the loan agreement and those of the mortgage bond were
also undisputed. This concludes my summary of the
factual
background. The facts as summarised were common cause between
the parties.
[9]
The question in this application is whether the 2
nd
respondent has any defence, good in law, to successfully resist the
applicants claim.
[10]
Mr
Hefer,
counsel
for the 2
nd
respondent submitted that the 2
nd
respondent has done enough to have the question decided in her
favour. However,
Mr
Tsangarakis
,
counsel for the applicant differed. He submitted that none of
the various defences raised by the 2
nd
respondent had any substance.
[11]
It is tried that motion procedure has been designed to speed up
adjudication of disputes in order to avoid unnecessary delay
where no
really genuine and
bona
fide
dispute exists as regards the material fact(s). A party who
purports to delay the expeditious finalization of the civil wrangling
by claiming that action proceedings and not motion proceedings would
render the outcome of the hearing fair and just as would otherwise
be
the case has to seriously and unambiguously address and elucidate the
material fact said to be in dispute in order to demonstrate
that a
really genuine and honest dispute indeed exists.
Wightman
t/a JW Construction v Headfour (Pty) Ltd & Another
[2008] ZASCA 6
;
2008 (3) SA 371
(SCA)
[12]
It has been held on a number of occasions that a certificate clause
in a written agreement is designed to facilitate proof
of the amount
of liability. Therefore, a certificate of balance is often
merely accepted by the courts as an evidentiary
tool provided for in
terms of an agreement by one contracting party to the other for the
purpose of facilitating proof of the amount
of the borrower’s
indebtedness to the lender
Thrupp
Investments Holdings (Pty) Ltd v Goldreef
[2007] ZAGPHC 23
;
2008 (2) SA 253
(W) at 256 (A-B).
[13]
In
Bank
of Lisbon International Ltd v Venter & Another
1990 (4) SA 463
(AD) at 478 (F-G) the court said the following about
the great significance and the wide import of the certificate of
balance:
“
Wat
wel seker is, is dat die appellant, om mee te begin, niks meer hoef
te doen as om net staat te maak op die sertifikaat ten einde
die
bedrag van eis te bewys nie, en dat, as daar geen verdere getuies
vorendag kom met betrekking tot die inhoud van die sertifikaat
nie,
die appellant geregtig sou wees op vonnis teen die eerste respondent
ooreenkomstig die sertifikaat.”
I
am in respectful agreement.
[14]
The salient principle of motion proceedings is that an applicant must
make out his/her case in his/her founding affidavit.
It is
impermissible to make out a new case, for the first time, in the
replying affidavit.
Pountas
Trustee v Lahanas
1924 WLD 67
on page 68. In the replying affidavit the applicant
is only allowed to elaborate or develop his or her case, already made
out in the founding affidavit, by addressing the challenge mounted by
the respondent against such case in the answering affidavit.
[15]
The 2
nd
respondent raised several defences in her answering affidavit.
Among others, she alleged that the certificate of balance,
“anx
np5”, on which the applicant relied was defective, that the
applicant lacked
locus
standi
to prosecute the application; that the court has no
jurisdiction to entertain the matter; that there were sinister
dealings afoot between the 1
st
respondent’s legal representatives and the applicant’s
legal representatives which were calculated to prejudice her
by
undermining her
accrual
rights; and that the applicants approbates and reprobates with
regards to the provisions of the notice in terms of section
129
National Credit Act 34/2005.
[16]
The 2
nd
respondent contended that her aforesaid defences, singularly and
collectively considered, indicated that an enormous factual dispute
existed which rendered the application procedure not suitable in this
matter. In view of all the facts disputed by the 2
nd
respondent, it was submitted on her behalf that the applicant should
not have brought the matter to court by way of motion procedure
but
rather by way of action procedure. On behalf of the applicant
it was contended that there was no substance in all the
facts said to
be in dispute to justify the finding that a really genuine dispute
existed, in these circumstances, which rendered
the application
procedure unsuitable.
[17]
Now I proceed to examine the factual allegations to determine whether
or not a really genuine and
bona
fide
dispute existed.
[18]
As regards the question of the certificate of balance, the 2
nd
respondent queried the applicant’s “anx np5” on the
grounds that it was not a proper balance certificate; that
the
alleged outstanding capital balance was inflated by the addition of
all sorts of other things; that it was not drawn up by
a qualified
person; that she had never seen it prior to the institution of
the current application and that it was not signed
– vide para
19 answering affidavit.
[19]
At para 7.11 of the founding affidavit the applicant declared:
“
Klousule
10 van die ooreenkoms vermeld verder dat die sekuriteite wat ek hou
voortdurende dekking sekuriteite is en bevestig die
ooreenkoms verder
in klousule 26 van die lenningsooreekoms dat ‘n sertifikaat
gegee en geteken deur ‘n lid, ‘n
prokureur of ‘n
boekhoudster van die firma Maree & Bernard Prokureurs te
Hoopstad,
prima
facie
bewys
sal wees vir doeleindes van vonnis van die uitstaande bedrag
verskuldig.”
[20]
I deem it necessary to quote the relevant certificate clause, clause
26 “anx np1” which is the loan agreement:
“’
n
Skriftelike Sertifikaat gegee en geteken deur lid, ‘n Prokureur
of boekhouer van die Prokureurs firma Maree en Barnard Hoopstad,
Verbandhouer of sy gemagtigdes of agent, wie se hoedanigheid of
bevoegdheid dit nie nodig sal wees om te bewys nie en sal
prima
facie
bewys wees vir doeleindes van voorlopige of summiere vonnis of enige
ander regsmiddel, van enige bedrag hetsy die kapitaalsom,
finansieringskoste,
mora
finansieringskoste, voorskotte, koste, hervoorskotte en uitgawes so
in berekening gebring asook van die finansieringskoers soos
van tyd
tot tyd deur die Verbandhouer vasgestel en die bedrag onder hierdie
verband verskuldig en/of betaalbaar.”
[21]
From the certificate clause the following emerge:
·
There
were no formalities, agreed upon by the parties prior to the signing
of the loan agreement, concerning the form or appearance
of the
envisaged certificate of balance;
·
The
qualifications, expertise or capacity of an individual authorized to
issue such a certificate would not be necessary to aver
and prove in
order to establish the lender’s cause of action;
·
The
certificate could be issued and signed by the mortgagee, the
mortgagee’s authorized agent, a bookkeeper, attorney or any
member of the law-firm Maree & Barnard, Hoopstad;
·
The
calculation of the certified outstanding balance of the debt would
include a range of specific constituent components other
than a
balance of a purely capital nature (for instance disbursements);
·
The
compliant certificate of balance would, upon its mere
production,
be
prima
facie
proof of the extent of the borrower’s (or the mortgage givers)
indebtedness to the lender, in other words the mortgage holder,
for
the purpose of provisional sentence, summary judgment or any other
relief of a judicial nature.
[22]
It
would also be readily appreciated that the mortgage-holder is not
obliged in terms of clause 26 “anx np1” to ensure
that
the certificate of balance does not, by appearance, resemble a
statement of account. Moreover, the mortgage-holder is
not
obliged in terms of the clause to furnish the 2
nd
respondent as the borrower with a copy of the certificate at any
stage prior to the institution of legal proceedings for the recovery
of the money lent and advanced.
[23]
There is no hard and fast rule that the arithmetic calculations a
certificate reflects must, in all cases, have been performed
or
worked out by a qualified person in the employ of a financial
institution. The decision in
Rossauw
v Firstrand Bank
2010 (6) (SA) 439 (ECA) is no authority for such a
preposition. Where, as in the Rossauw’s case, a financial
institution is a lender, then “such calculations
are
better performed
by a qualified person in the employ of the financial institution.”
Even in such cases, the rule is not rigidly cast
in stone as the
highlighted three words show.
[24]
The certificate complained of appears on page 93 of the record.
Upon my painstaking perusal of “anx np5”
I could find
nothing inconsistent with clause 26 other than the author’s
omission to append his signature. The omission
appeared to have
been occasioned by an inadvertent oversight. The applicant
introduced the certificate at para 7.12 of the
founding affidavit by
averring:
“
Ek
heg as
Aanhangsel
“NP5”
‘n saldosertifikaat aan van gemelde prokureurs
onderteken
deur Mnr Nicolas Petrus Maree.”
The
impression I got was that, until she read the answering affidavit the
applicant was unaware that the document was unsigned.
It can hardly
be seriously contended that the mere failure of Mr. Maree to sign the
certificate irredeemably invalidated that document.
[25]
As a result of the 2
nd
respondent objection, concerning the form and omission to sign “anx
np5” the applicant caused the certificate to be
redrafted,
reshaped and signed. The certificate so freshly redesigned was
then labelled “anx iw4”, attached to
the replying
affidavit served and filed together with the confirmatory affidavit
“anx iw3” by Ms. Mia Viljoen, the
bookkeeper of the
law-firm Maree & Barnard of Hoopstad. The question was
whether “anx iw4” constituted a
new case made out, for
the very first time, in the replying affidavit? I am not so
persuaded.
[26]
There were a few dissimilarities between the two annexures.
Firstly, the one “anx np5” was not singed but
the other
“anx iw4” was. Secondly, the former was drawn up by
the attorney, Mr Maree but the latter by the bookkeeper,
Ms Viljoen.
The former was annexed to the founding affidavit but the latter to
the replying affidavit. All those dissimilar
features were, in
my view, cosmetic. However, there was a striking similarity
between the 2 annexures. The amount of
the balance alleged to
be still outstanding was precisely the same. About that
material fact, which is the core of the matter,
there was virtually
nothing new in “anx iw4” in particular or the replying
affidavit in general. It was common
cause that the author of
the unsigned certificate was indeed Mr. Maree, an attorney of the
law-firm mentioned in clause 26 of the
loan agreement, as the
applicant alleged in the founding affidavit. Ms. Viljoen
averred in her confirmatory affidavit
that she is a bookkeeper of the
same law-firm as Mr. Maree. Both were qualified to issue and
sign the certificate of balance
in terms of clause 26.
[27]
The applicant and her husband, now deceased, lent and advanced
substantial amount of money to the respondents way back in 2005.
The terms of that loan agreement concluded between the parties as
well as the terms of the mortgage bond whereby the repayment
of the
loan was secured, were undisputed. By means of “anx np5”,
whose immaterial defect was remedied by way
of “anx iw4”,
the applicant made out a
prima
facie
case that the respondents were still indebted to her in the sum of
money as specified in the certificate(s). The applicant
has, in
my view, substantially complied with the provisions of the
certificate clause, notwithstanding her failure to have “anx
np5” signed by its author, Mr. Maree. Our law would be
imperfect if such an insignificant defect in the certificate
of
balance could be upheld as constituting a new case in the replying
affidavit.
[28]
The
prima
facie
proof
of indebtedness placed the ball in the 2
nd
respondent’s court to rebut the applicant’s case which
showed,
prima
facie,
the respondents’ indebtedness. Her challenge to the
applicant’s
prima
facie
case can be found in para 19 of the answering affidavit. She
said:
“
19.1
Die inhoud van hierdie paragrawe word ontken asof spesifiek
teengespreek en word die Applikant tot
die bewys daarvan geplaas.
Ek bevestig spesifiek verder dat Aanhangsel “NP5” nie ‘n
saldosertifikaat is
nie en ook nie onderteken is soos wat die
Applikant daarop steun nie. Ek het ook nog nooit hierdie
document gesien voor die
aansoek nie en blyk dit duidelik dat dit
gedateer is op 12 Junie 2015. Geen bewys is aangeheg dat
hierdie document aan my
gestuur is nie. Dit is ook verder
duidelik dat hierdie nie ‘n saldosertifikaat is nie, maar blyk
dit meer soos ‘n
rekening.
19.2
Dit is my respekvolle submissive dat hierdie nie ‘n
gelikwideerde bedrag is nie en
betwis ek alles wat in hierdie
aanhangsel bevestig is. Hier is dus ‘n groot feitedispuut
wat nie op aansoekstukke kan
slag nie.”
[29]
I have already dealt with all the aforesaid objections and found no
substance in any of them. There was substance in
Mr.
Tsangarakis
submission that the 2
nd
respondent seriously and honestly failed to address the applicant’s
claim. There are no reasonable prospects that she
would be able
to if the matter were to be referred to trial. The crux of the
applicant’s case was that the respondents
were in default, an
averment which the 2
nd
respondent expressly admitted in para 13.1 of the answering
affidavit. The breach of the material terms of the loan
agreement
had been going on for a year at least before the applicant
decided to sue them for a loan they received a decade ago. At
para 13.3 of the answering affidavit the 2
nd
respondent stressed that she disagreed with the amount of the
applicant’s claim, but made no attempt to state, let alone
to
calculate, the correct balance in order to demonstrate where Mr.
Maree got it all wrong. What we have here was a classic
example
of a bare denial.
[30]
It can be seen, therefore, that the 2
nd
respondent merely disputes the extent of her indebtedness but
dismally
fails
to specify why the sum as specifically calculated and claimed, was
incorrect. Apart from that the 2
nd
respondent also failed to give details as to how much the sum of the
correct outstanding balance is or should be. Her’s
was
not the case of a debtor who contended that the certificate of
balance was inaccurate in that payments she made were not taken
into
account. There is no averment in her answering affidavit that
the applicant did not give her due credit for all her
payments or
some of them.
[31]
It is well to remember that Mr. Strydom, the applicant’s
attorney,
ex
abundanti cautela
sent
notice in terms of sec 129 National Credit Act 34/2005 directly to
the second respondent’s
domicilium
citandi
et executandi
by mail – vide para 7.17.12 founding affidavit. The
notice dated 10 February 2014 stipulated the outstanding balance.
The document or statement of account dated 1 February 2014 reflecting
the arithmetic calculations thereof was attached –
vide anx
np9. Moreover, a copy of the notice was later served on the
second respondent’s attorneys Mrs. Couzym Hertzog
& Horak
by the sheriff for the Bronkkerspruit district. Mr. Bruyns, the 2
nd
respondent’s attorney, subsequently acknowledged receipt
thereof.
[32]
I pause to make an important comment. Neither the 2
nd
respondent nor her attorney ever queried the balance of the debt as
specified in the notice in terms of sec 129
supra
.
Instead the 2
nd
respondent made fruitless attempts to privately sell the encumbered
farm in order to pay her debt, then undisputed. In my
view all
those actions of the 2
nd
respondent strongly militated against her allegation that an enormous
factual dispute exists and that the amount of the applicant’s
claim was in dispute. The lady struck me as very untruthful,
ungrateful and inconsiderate person. She failed to impress
me
at all.
[33]
It is clearly evident that the loan agreement, the mortgage bond, the
breach of the loan agreement and the inability of the
respondents to
remedy the breach by at least paying the areas are common cause.
All these are material facts. The 2
nd
respondent has no defence to the applicants claim. In the
circumstances the 2
nd
respondent’s resistance is hard to comprehend.
[34]
I would, therefore, dismiss the 2
nd
respondent’s contention that an enormous dispute of fact exists
as regards the material facts on which the applicant’s
cause of
action is based. On the papers no really genuine an unambiguous
dispute of fact which renders the application incapable
of fair and
just adjudication was shown to exist.
[35]
It is appropriate to conclude the matter by quoting the following
apposite passage from Wightman
supra
at paragraph 13:
“
A
real genuine and
bona
fide
dispute of fact can exist only where the court is satisfied that the
party who purports to raise the dispute has in his affidavit
seriously and unambiguously addressed that fact said to be disputed.
There will of course be instances where a bare denial
meets the
requirement because there is no other way open to the disputing party
and nothing more can therefore be expected of him.
But even
that may not be sufficient if the fact averred lies purely within the
knowledge of the averring party and no basis is
laid for disputing
the veracity or accuracy of the averment. When the facts
averred are such that the disputing party must
necessarily possess
knowledge of them and be able to provide an answer (or countervailing
evidence) if they be not true or accurate
but, instead of doing so,
rests his case on a bare or ambiguous denial the court will generally
have difficulty in finding that
the test is satisfied. I say
generally because factual averments seldom stand apart from a broader
matrix of circumstances
all of which needs to be borne in mind when
arriving at a decision. A litigant may not necessarily
recognise or understand
the nuances of a care or general denial as
against a real attempt to grapple with all relevant factual
allegations made by another
party. But when he signs the
answering affidavit, he commits himself to its contents, inadequate
as they may be, and will
only in exceptional circumstances be
permitted to disavow them. There is thus a serious duty imposed
upon a legal adviser
who settles and answering affidavit to ascertain
and engage with facts which his client disputes and to reflect such
disputes fully
and accurately in the answering affidavit. If
that does not happen it should come as no surprise that the courts
takes a
robust view of the matter.”
[36]
As regards the rest of the fanciful defences raised by the 2
nd
respondent, I deem it unnecessary to deal with them. It is
sufficient to say I considered each one of them but I could find
no
genuine substance in anyone of them.
In
doing so I am fortified by the stance adopted by counsel for the 2
nd
respondent. He hardly mentioned, let alone deal with, the rest
of the 2
nd
respondents various defences in his written heads of argument or oral
argument. That alone said a lot as to what he thought
about
such defences. There was simply no substance in anyone of them.
I
am inclined to dismiss all of them.
[37]
Accordingly I make the following order:
37.1
The respondents are jointly and severally directed to pay an amount
of R779 913.23 to the applicant.
37.2
The respondents are directed to pay interest on the aforesaid capital
amount
a tempore morae
at the rate of 14,75% per annum until
the date of final payment.
37.3
The respondents’ property known as portion of the Farm
Vergenoeg 491, District Viljoenskroon, Province
Free State size
85,6532 hectares held in terms of title deed number 154/2006 is
hereby declared to be specially executable.
37.4
The applicant is authorized to perfect the special notorial bond
number BN 173/2006 by taking all the moveable
assets specified
therein and to liquidate them.
37.5
The costs of this application shall be paid by the respondents, on
the scale as between attorney and client,
jointly and severally the
one paying the other to be absolved.
_____________
M.H.
RAMPAI, J
On
behalf of applicant:
Adv. S. Tsangarakis
Instructed
by:
EG
Cooper Majiedt Inc.
BLOEMFONTEIN
On
behalf of 1
st
respondent:
No appearance
On
behalf of 2
nd
respondent:
Adv. J.J.F. Hefer
Instructed
by:
Etienne
Visser Attorneys
BLOEMFONTEIN
/PC