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[2014] ZAGPPHC 465
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Naidoo v Standard Bank of South Africa (A15/13) [2014] ZAGPPHC 465 (13 June 2014)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
CASE
NUMBER: A15/13
DATE:
13 JUNE 2014
In
the matter between
NAVIN
NAIDOO
........................................................................................................................
APPELLANT
(Defendant in
court a quo)
And
THE
STANDARD BANK OF SOUTH
AFRICA
.................................................................
RESPONDENT
(Plaintiff in
court a quo)
JUDGMENT
Masipa J
INTRODUCTION
[1] This is an
appeal against the whole of the judgment of JW Louw dated 6 March
2012. In terms of the judgment the learned judge
refused an
application by the appellant for a postponement and granted judgment
against the appellant in favour of the respondent
I shall refer to
the parties as they appeared in the court a quo.
THE BACKGROUND
[2] The plaintiff,
who is the present respondent, instituted action against the
defendant, who is the present appellant, in the
Court a quo in terms
of which it claimed, inter alia, payment of an amount of R3 412
946.69 together with interest at an agreed
rate from 20 January 2010,
in terms of a written agreement of loan secured by a continuing
covering mortgage bond registered in
favour of the respondent.
[3] The loan
agreement, the mortgage bond and the fact that monies were lent in
advance were not disputed. However the defendant
defended the action
and raised two special pleas:-
1. That the
plaintiff had failed to comply with the provisions of the
National
Credit Act 34 of 2005
.
2. That the loan
agreement was a reckless credit agreement as envisaged in the NCA.
[4] The matter was
set down for trial for the 6 March 2012 by way of the notice of set
down served on 26 January 2012.
[5] On 31 January
2013 the parties had a pre-trial meeting. At that meeting the
defendant informed the plaintiff that he was considering
applying for
a postponement. The defendant's substantive application for
postponement was served on 29 February 2012. The plaintiff
opposed
the application and served its answering affidavit on 5 March 2012.
[6] On 6 March 2012
the defendant was represented by his present attorneys of record and
counsel. The Court a quo considered the
application for a
postponement after which the application was refused. Counsel for the
defendant then informed the Court that
she had no instructions to
proceed on trial and withdrew from the matter. The defendant's
attorney remained on record.
[7] The trial
proceeded and, after considering the evidence of the legal manager
who gave evidence on behalf of the plaintiff, and
after submissions
by counsel for the plaintiff, the Court granted judgment against the
defendant.
[8] The Court a quo
refused to grant leave to appeal. On 23 October 2012 the Supreme
Court of Appeal granted the defendant leave
to appeal to the Full
Bench of this Division.
THE APPEAL
[9] The defendant
sought condonation for the late filing of the notice of appeal and
the record. In view of the fact that the Supreme
Court of Appeal
granted leave to appeal it would serve no purpose to debate the
merits and the demerits of the condonation application.
For that
reason the condonation application is granted.
ISSUES TO BE
DETERMINED ON APPEAL
[10] The following
are issues to be decided on appeal.
1. Whether the court
a quo exercised its discretion properly when it refused the
appellant’s application for a postponement.
2. Whether judgment
was correctly granted considering the appellant's defences.
3. Whether the
certificate of balance was valid.
I shall deal with
each in turn.
[11] Did the Court a
quo exercise its discretion properly when it refused an application
for a postponement brought by the appellant
who was then the
defendant?
[12] The grant or
refusal of an application is always a matter of discretion by the
court hearing the postponement and the court
sitting as a court of
appeal will not interfere with that discretion as long as the
discretion was exercised judicially.
[13]
In the matter of
National
Coalition for Gay and Lesbian Equity and Others v Minister of Home
Affairs and Others 2002 (2) SA1 (CC) at par. 11, p 14A-F
the
Constitutional Court set out the relevant principles when considering
an appeal against the refusal of an application for a
postponement,
as follows:
"[11]
A Court of Appeal is not entitled to set aside the decision of a
lower court granting or refusing a postponement in the
exercise of
its discretion merely because the Court of appeal would itself on the
facts of the matter, before the lower court
,
have come to a
different conclusion; it may interfere only when it appears that the
lower court had not exercised its discretion
judicially
;
or that it had
been influenced by wrong principles or a misdirection on the facts,
or that it had reached a decision which in the
result could not
reasonably have been made by a court properly directing itself to all
the relevant facts and principles
[14] In the present
case the main ground for the application for postponement was that
the defendant had not been given adequate
time to prepare for trial.
It was submitted that since the plaintiff’s notice of set down
had been served on the defendant
on 26 January 2012 the defendant
only had a mere six in which to prepare for trial. That time was not
adequate considering that
the defendant spent nine months of his time
in Australia where he practiced as a medical doctor. It was further
submitted that
the plaintiff had failed to comply with the
aforementioned
Rule 7(5)
and/or the Gauteng North Practice Manual in
that it had failed to timeously give notice in writing to the
defendant of the date
which has been allocated by the Registrar for
hearing. There was a suggestion that such failure was partly the
cause of the defendant's
unreadiness to proceed with the trial. This
suggestion has no foundation as is clear from correspondence between
the parties that
the plaintiff was not to blame for the delay. On the
contrary there is evidence that the plaintiff ensured that the
defendant was
continually apprised of the status of the matter.
[15] Courts are
hesitant to refuse a postponement where the reasons for the
postponement have been fully explained and where the
applicant for
the postponement needs time to properly prepare for the case. In the
present case the learned judge in the court
a quo found the reasons
placed before him unconvincing. Inter alia, he accepted that the
defendant worked outside South Africa.
He, however, noted that the
defendant had been in the country since 21 February 2012 and that he
had had ample time to prepare
for his case. He stated that time used
preparing the application for a postponement could have been used to
prepare for trial.
The learned judge stated, further, that having
regard to the technical nature of the disputes that the defendant
relied upon, the
matter could be disposed of quickly. I cannot find
fault with this conclusion.
[16]
It
was obvious that the application for the postponement was only a ploy
to buy time for the defendant. There really was no reason
why the
defendant was not ready to proceed with the trial. From the papers
before the court a quo it was clear that the plaintiff
had done all
it could in its power to make ensure that although there were
problems in the office of the Registrar with typing
an official
notification of the trial date, the defendant was informed regularly
of the progress regarding the trial date. More
importantly on the 6
July 2011the plaintiff's attorneys addressed a letter to the
defendant's attorneys, marked Annexure "SB2
”
The
relevant portion of the letter reads as follows:
"Please
note that the date has not formally been allocated by way of
notification from the Registrar
,
although we have
ascertained that the matter will be heard on the 6th of March 2012".
[17] It is clear
that the defendant knew nine months in advance when the trial was
going to proceed. In addition when the plaintiff
received formal
notification from the Registrar of the trial date on 26 January 2012
it ensured that the same day it served a notice
of set down on the
defendant’s attorneys. There was, therefore, no merit in the
submission that the defendant had very little
time to prepare for
trial as it was only apprised of the trial date six weeks before the
trial. In my view this submission was
correctly rejected by the court
a quo. The learned judge also correctly considered the prejudice that
the respondent would suffer
if the postponement was granted.
[18]
In
Bookworks (Pty) Ltd
v Greater Johannesburg TM Council 1999(4) SA 799 (WLD) at page 805
para G - H
the
following was said:
"It
is difficult to discern a general principle underlying all cases in
which a discretion conferred on a court of first instance
has been
categorized as narrow. What does seem clear is that where the court
of first instance is in a better position than an
appeal Court to
decide a question which involves the exercise of a value judgment
,
especially a
question of procedure (I use the word in a fairly loose sense), an
appeal Court will be reluctant to interfere. A decision
to grant an
amendment of pleadings or a postponement falls into this category:
R
v Zackey
1945 AD 505
at 510
-
11”
[19]
In the same case on page 806 F-G the court went on to explain the
importance of not needlessly interfering in the discretion
of a court
a quo. " ..
different
judicial officers
,
acting reasonably
;
could legitimately
come to different conclusions on the same facts,. .. if an appeal
were to be allowed in such cases
,
appeal Courts
would be overburdened by unsuccessful litigants hoping that the
majority might differ from the conclusion of the court
below."
[20] In the present
case I can find no reason to interfere with the decision of the court
a quo. I am of the view at that the court
a quo exercised its
discretion judiciously.
DEFENCES
[21] The court a quo
had to deal with two special pleas namely, that there was
non-compliance with
section 129
of the NCA, that the loan granted by
the plaintiff to the defendant amounted to reckless credit and
thirdly that the certificate
which certifies the outstanding balance
owing to the plaintiff was not a proper certificate.
The court a quo
found that the special pleas as well as the issue of the Certificate
of Balance were crisp points that could be
disposed very quickly.
Insofar as the Certificate of Balance was concerned the judge stated
that issue could be remedied by handing
up further certificate during
the trial. I shall deal with each in turn.
NON COMPLIANCE WITH
SECTION 129 OF THE NATIONAL CREDIT ACT 34 OF 2005 ("NCA")
[22] The defendant
contended that the plaintiff had not complied with the prescripts of
the NCA and was, therefore, not entitled
to the relief asked for in
the pleadings.
[23]
In the defendant's First and Second Special Pleas the defendant
specifically denied that the plaintiff had complied with the
provisions of the NCA or that a notice in terms of section 129 (1) of
the NCA was delivered to the defendant. The defendant seemed
to place
emphasis on the word 'delivered' and relied on the matter of
Rossouw
and Another v First Rand Bank Ltd t/a FNB Homeloans (Formerly First
Rand Bank of South Africa Ltd (640/2009)
[2010] ZASCA 130
;
2010 (6)
SA 439
(SCA);
[2011] 2 All SA 56
(5CA) (30 September 2010).
[24]
It is so that
Section
129 of the National Credit Act, 34 of 2005 ("NCA")
places
an obligation on a credit provider, such as the plaintiff in this
matter, to ensure that a notice in terms of this section
is delivered
to the consumer, the defendant in this matter. The purpose of the
notice is to draw the default to the attention of
the consumer and to
inform him of a variety of options open to him to remedy the default.
[25]
The meaning of "deliver" was discussed in two recent
Constitutional Court matters namely,
Sebola
and Another v Standard Bank of South Africa Limited and Another
2012
(5) SA 142
(CC)
and
Kubyana v Standard
Bank of South Africa Limited [2014] ZAC l(decided on 20 February
2014).
In
both these matters the Court stated what a credit provider must do to
ensure effective delivery and to prove to the satisfaction
of the
Court that there has been due compliance with the provisions of the
NCA.
[26] In Sebola supra
the Constitutional Court held that the real question to be decided
was whether the credit provider did draw
the default to the notice of
the consumer and made certain proposals to the credit provider to
resolve the dispute. If the answer
was yes there had been compliance.
If the answer was no then there had been no compliance.
[27] It was argued,
on behalf of the defendant that ex facie the notice in accordance
with section 129 and if regard is had to the
issues raised in the
pleadings the Court had erred in finding that there had been
compliance with the provisions of the NCA. It
was submitted that the
issues raised on the pleadings justified an order in terms whereof
the proceedings ought to have been adjourned
in accordance with
section 130(4).
That the present
case is not one of those cases which warrant an adjournment in terms
of section 130(4) is clear from the facts
of the matter, the
correspondence between the parties as well as the pleadings.
[28] The defence, by
the defendant, is hard to understand as his version shows clearly
that he had sight of the section 129 notice.
[29] The defendant
made the following admissions in his pleading in his first special
plea para 4c, para 4d and para 5 on p. 54:
"4c The
Defendant has responded to the Plaintiffs section 129 Notice. The
Defendant’s reply to the Plaintiff was within
20 days of having
been made aware of the Plaintiff's section 129 Notice. The Plaintiff
has failed to acknowledge the Defendants
response to its section 129
Notice;
4d The Defendants
response was sent to the Plaintiff, and/or its legai representatives
prior to the service of the Summons commencing
this Action;
5.
The Defendant has put a proposal forward to the Plaintiff that is
believed will allow for the ultimate settlement of the outstanding
debt, inclusive of all arrears
;
albeit over a
longer time period than was initially contracted for. The defendants
proposal is what is envisaged by the Act as debt-reorganization
in
the case of over-indebtedness as defined by section 79(1) of the Act
[30] In his judgment
the learned judge noted that although there was an allegation that
the notice in terms of section 129 was sent
to the wrong address, it
was not denied in the plea that the notice did come to the
defendant's notice. There can, therefore, be
no question of the
defendant having been deprived of an opportunity to remedy his
breach. The defendant was granted such an opportunity
and, on his own
version, even responded to such notice. Counsel for the defendant
sought to argue that the defendant was denied
an opportunity to
defend the matter and perhaps withdraw the admission when the learned
judge determined the merits and granted
a default judgment There is
no merit in this argument. The defendant made his choice when he
limited his instructions to counsel
to argue only a postponement.
With a legal background he knew exactly what would happen if the
postponement application was dismissed.
This defence was, therefore,
correctly rejected, in my view.
RECKLESS CREDIT
[31] The second
special plea raised was that the loan granted by the plaintiff to the
defendant amounted to reckless credit in terms
of the NCA and that
for that reason the plaintiff was not entitled to the order which it
sought in the summons.
[32] The first
question is whether the NCA is applicable to the agreement in the
present case..
Sections 80, 81, 82,
83 and 84 of the NCA form part of Part D of Chapter 4 of the Act. In
terms of section 4(2) of Schedule 3 to
the Act it is provided that
Part D of Chapter 4 of the Act applies to a pre-existing credit
agreement only to the extent that it
does not concern reckless
credit.
[33] The effective
date of Part D of Chapter 4 of the Act is 1 June 2007. It is common
cause that the loan agreement was concluded
on 31 January 2007 while
the relevant mortgage bond was registered in the offices of the
Registrar of Deeds on 22 February 2007.
The loan agreement was
therefore concluded prior to 1 June 2007 which is the effective date
of Part D. It is therefore clear that
the NCA is not applicable as
the criteria for determining reckless credit are those which applied
at the time the agreement was
concluded. (See section 80(2)). This
defence also lacks merit and was correctly dismissed by the court a
quo.
THE CERTIFICATE OF
BALANCE
[34] Although there
was a dispute in respect of the certificate of balance the defendant
made no submissions either in the Heads
of Argument or orally. The
plaintiff's claim is for a liquidated amount being the outstanding
balance due in terms of the loan
agreement. The loan agreement and
mortgage bond provide that a certificate of balance signed by any of
the plaintiff's managers,
whose appointment need not be proved, will,
on its mere production be proof, unless the contrary is proved, of
the amount due.
The court a quo found that no case had been made out
in respect of the contention that the balance of certificate could
not be
relied on. I can find no fault with this finding for reasons
already set out. For that reason this ground of appeal also cannot
succeed.
[35] In the result I
would grant the following order:
1. The appeal is
dismissed
2. The appellant is
ordered to pay the costs
TM MASIPA
JUDGE OF THE HIGH
COURT
I agree
AJ BAM
JUDGE OF THE HIGH
COURT
I agree
S STRAUSS
ACTING JUDGE OF THE
HIGH COURT
Counsel for the
appellant: U Loitering
Instructed by Spies
Bester Potgieter Attorneys
Counsel for the
respondent: MT Shepherd
Instructed by Hack
Stupel & Ross Attorneys
Date of Hearing: 11
June 2014
Date of Judgment: 13
June 2014