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[2014] ZAGPPHC 58
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Nedbank Limited v Maredi and Another (25205/2013) [2014] ZAGPPHC 58 (28 February 2014)
REPUBLIC OF SOUTH
AFRICA
IN THE HIGH COURT
OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
CASE
NO:25205/2013
DATE:
28 FEBRUARY 2014
In the matter
between:
NEDBANK
LIMITED
......................................................................................
Plaintiff
And
MMATADI
HENDRIETTA
MAREDI
..................................................
First
Defendant
MMATADI
HENDRIETTA MAREDI
(In her capacity
as duly appointed executrix
in the estate of
the late Mr Taote Israel Maredi)
..............................
Second
Defendant
J U
D G M E N T
MAKGOKA, J:
[1] This is an
opposed application for summary judgment. In its combined summons,
the plaintiff alleges that the defendant, both
in her personal and in
her capacity as the executrix in the estate of her late husband (the
deceased) has breached the terms of
a loan agreement entered into
between herself and the deceased, on the one hand, and the plaintiff,
on the other, by failing to
make regular instalments as they fell
due.
[2] The loan
agreement was secured by a mortgage bond in favour of the plaintiff
over the property of the defendant and the deceased,
whom, for the
sake of convenience, I shall refer to as ‘the consumer
parties’. The plaintiff claims payment of a sum
of R147
085.34, together with finance charges, interest and costs. The
plaintiff further seeks an order declaring the defendant’s
property executable for the amount claimed and further that the
issuing of a warrant of execution in respect of the property, be
authorised. For the sake of convenience, I shall refer to the
defendant in her two capacities simply as ‘the defendant.
[3] Before I
consider the contentions on behalf of the parties, I deem it
pertinent to set out the jurisprudential framework within
which an
application for summary judgment should be considered, which is trite
and established. In order to stave off summary
judgment, the
defendant has to disclose a bona fide defence, which means a defence
set up bona fide or honestly, which if proved
at the trial, would
constitute a defence to the plaintiff’s claim (Bentley
Maudesley & Co. Ltd v “Carburol”(
Pty) Ltd and
Another
1949 (4) SA 873
(C); Lombard v Van der Westhuizen
1953 (4) SA
84
(C) at 88). The defendant must satisfy the court that he has a
bona fide defence to the plaintiff’s claim and the full nature
and grounds thereof.
[4] In Oos-Raandse
Bantoesake Administrasieraad v Santam Versekeringsmaatskappy Bpk
1978
(1) SA 164
(W) at 171 it was stated that not a great deal is required
of a defendant but that he or she must lay enough before the court to
persuade it that he or she has a genuine desire and intention of
adducing at the trial, evidence of facts which, if true, would
constitute a valid defence. All that the court enquires into is
whether the defendant has ‘fully’ disclosed the nature
and grounds of his defence and the material facts upon which it is
founded and whether, on the facts disclosed so disclosed the
defendant appears to have a defence which is bona fide and good in
law. See also, Maharaj v Barclays National Bank 1976 (1) 418
(A) at
426.
[5] In the present
matter, the defendant raised three points in her affidavit resisting
summary judgment. First, that the plaintiff
was statutorily obliged,
to inform her and the deceased, as the consumer parties, of an option
to take out a life cover insurance
policy to secure the loan, or cede
a policy of their choice to the plaintiff for that purpose. The
defendant avers that the plaintiff
failed to comply with the alleged
duty and therefore, disputes liability to repay the loan, and insists
that the plaintiff should
settle the bond account. Second, and
flowing from the first, is that the alleged failure by the plaintiff
to advise the defendant
and the deceased of a need to take out life
insurance, had been referred to the banking ombudsman, and that a
decision in that
regard is pending. Third, although not seriously
pressed during argument, it seems that the defendant alleges that the
plaintiff’s
balance of certificate is unreliable, and so is the
amount reflected in it. I deal with these points, in turn.
The plaintiff’s
obligation to advise the defendant and the deceased of a life cover
[6] As stated
earlier, the defendant contends that the plaintiff had a statutory
obligation to inform the consumer parties of an
option to take out
life cover. For this contention, the defendant relies on
s 44
of the
Long Term Insurance Act 52 of 1998
, of which
s 44(1)
reads:
‘If a party to
a contract in terms of which money is loaned, goods are leased or
credit is granted, requires, whether as a
condition thereof or
otherwise, that a long term policy or its benefits be made available
and used for the purpose of protecting
the interests of a creditor,
the person who is so required to make that policy or those policy
benefits available shall be entitled,
and shall be given prior
written notification of that entitlement, to a free choice-
(a) as to whether he
or she wishes to enter into a new policy and make it available for
that purpose, or wishes to make available
an existing policy of the
appropriate value for that purpose, or wishes to utilise a
combination of those options…’
(my
underlining)
[7] It is clear on a
plain reading of the section that the construction that the defendant
places on it, is misconceived. The section,
as is clear from the
underlined portion, is for the benefit of the credit provider to
protect its own interest, and it arises only
at the instance of the
credit provider if it elects to make it a condition of a contract
that an insurance policy be taken out,
to secure its interests.
Simply put, the section only applies if a credit provider, such as
the plaintiff, imposes a condition
or otherwise on a consumer, that
an insurance policy or its benefits be made available, to protect the
interests of the credit
provider. In the present case, the home loan
agreement did not contain any condition or terms otherwise, that the
consumer parties
had to take out any life cover insurance policy to
secure the loan. It is therefore clear that the defendant’s
reliance
on
s 44
is misplaced.
Dispute pending
before the banking ombudsman
[8] The defendant
alleges that the ‘dispute’ concerning the plaintiff’s
alleged failure to comply with its supposed
statutory duty as
discussed earlier, had been referred to the banking ombudsman. The
contention is therefore that these proceedings
are premature. In this
regard, the provisions of
s 129
of the
National Credit Act 34 of 2005
are relevant, in terms of which a credit provider informs the
consumer of its breach, the options available to a consumer
1
in the event it disputes any issue, and of the credit provider’s
intention to proceed with legal proceedings should the
breach not be
remedied, or the options available to the consumer, not be exercised,
within 20 business days of the notice.
[9] In the present
case, the plaintiff sent to the defendant a notice in terms of
s 129
by registered mail on 4 March 2013, in which the defendant’s
right to refer the matter to, among others, the ombudsman for
banking
services, was explained. No issue is taken in respect of the
s129.
The defendant obliquely states that the matter has been referred to
the banking ombudsman. No further details are furnished as
to the
date on which the matter was sent. What is more, it is instructive
that the defendant does not claim to have exercised the
option open
to her, that is, of referring any dispute to the banking ombudsman,
within the 20-day period stated in the
s 129
notice. The defendant’s
only written complaint, on the papers, is dated 31 July 2013, and it
is not to the banking ombudsman,
but to the plaintiff, which itself
would be of no consequence, as it was made after summons had been
issued (on 26 April 2013).
[10] If the
defendant was able to attach a complaint sent to the plaintiff, there
should not be any difficulty in doing the same
with a complaint to
the banking ombudsman, if any. The upshot of this is that even
accepting that the defendant has laid a complaint
with the banking
ombudsman, if it was done during the same period as the complaint to
the plaintiff, it would similarly be of no
consequence for the same
reason that by then, summons had been issued already. That is so
because the banking ombudsman has no
jurisdiction to consider a
dispute once legal proceedings, concerning the same issue, are
instituted. Therefore, on the papers
as they stand, either there has
not been any referral at all, or such referral is of no consequence
because it was made after summons
had been issued. It is for the
defendant to set out fully all the factual averment on which her
defence is based, and she has not
done so. There is therefore no
merit in this point.
Balance of
certificate
[11] In this regard,
the defendant simply makes valiant, bald and unsubstantiated denial
of the correctness of the full outstanding
balance as set out in the
plaintiff’s certificate of balance. It is to be borne in mind
that the certificate of balance constitutes
prima facie proof of the
amount owing, and in the absence of any evidence to the contrary, the
amount reflected in it should be
accepted by the court as correct.
There is nothing to displace this position. Similarly, therefore,
there is no merit in this
contention.
[12] I am keenly
aware of the drastic nature of the remedy of summary judgment. At
the same time, the court would be remiss in
its duties if
unmeritorious defences, clearly devoid of any bona fides, stand in
the way of a plaintiff who is clearly entitled
to relief. The
ever-increasing perception that any defence, whatever its merits, is
sufficient to stave off summary judgment,
is misplaced and not
supported by the trite general principles developed over many
decades. See for example the well-known decision
of the then
Appellate Division in Maharaj v Barclays National Bank Ltd (supra).
See also generally, Herb Dyers (Pty) Ltd v Mohamed
and Another 1965
(1) 31 (T) at 31H-32A-B; Caltex Oil (SA) Ltd v Webb and Another
1965
(2) SA 914
(N) AT 916D-H; Arend and Another v Astra Furnishers (Pty)
Ltd 1974 (1) SA (C) at 303F-H; Shepstone v Shepstone 1974 (2) 462 (N)
at 467A-H and Breytenbach v Fiat SA (Edms) Bpk 1976 (2) 226 (T).
[13] Recently the
Supreme Court of Appeal (the SCA) restated the purpose of summary
judgment procedure in Joob Joob Investments
(Pty) Ltd v Stocks
Mavundla Zek Joint Venture
2009 (5) SA 1
(SCA). At paras 31 and 33
the following is stated:
“... It was
intended to prevent sham defences from defeating the rights of
parties by delay, and at the same time causing
great loss to
plaintiffs who were endeavouring to enforce their rights”
“Having regard
to its purpose and its proper application, summary judgment
proceedings do not hold terrors and are ‘drastic’
for a
defendant who has no defence. Perhaps the time has come to discard
these labels and to concentrate rather on the proper
application of
the rule, as set out with customary clarity and elegance by Corbett
JA in the Maharaj case at 425G-426E.”
[14] A bona fide
defence means a defence set up bona fide or honestly, which if proved
at the trial, would constitute a defence
to the plaintiff’s
claim: See Bentley Maudesley & Co. Ltd v “Carburol”(
Pty) Ltd and Another
1949 (4) SA 873
(C); Lombard v Van der
Westhuizen
1953 (4) SA 84
(C) at 88. In the present case, the
defendant has not placed in dispute the indebtedness of the
deceased’s estate and her
towards the plaintiff or that they
are in default of their obligations in terms of the agreement. She
has contented herself with
three defences, none of which is worthy of
reference to a trial.
[15] In the result I
conclude that the defendant discloses no bona fide defence to the
plaintiff’s claim. The plaintiff is
therefore entitled to
summary judgment. Given the defendant’s assertion that there
are sufficient funds in the estate to
meet the plaintiff’s
claim, I am disinclined to authorise the issuing of a warrant of
execution, at this stage.
[16] In the result I
make the following order:
1. Summary judgment
is granted against the first and second defendants, jointly and
severally, the one paying the other to be absolved,
for:
(a) Payment of the
sum of R147 085,34;
(b) Interest on the
above amount at the rate of 6% per annum calculated and capitalised
monthly in arrears from 28 February 2013
until date of final payment,
both dates inclusive;
(c) Costs of the
action on the scale as between attorney and client scale.
TM MAKGOKA
JUDGE OF THE HIGH
COURT
DATE OF HEARING
: 26 NOVEMBER 2013
JUDGMENT
DELIVERED : 28 FEBRUARY 2014
FOR THE
PLAINTIFF : ADV LW DE BEER
INSTRUCTED BY
: VEZI & DE BEER INC., PRETORIA
DEFENDANT’S
ATTORNEYS : MACHABA ATTORNEYS, JOHANNESBURG
1
he
consumer may refer any dispute to the following institutions:
(a)
A
debt counsellor
(b)
An
alternate dispute resolution agent
(c)
The
consumer court
(d)
The ombudsman for banking services