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[2013] ZAGPPHC 81
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Mnguni and Another v Absa Bank Ltd and Others (8294/2012) [2013] ZAGPPHC 81 (14 March 2013)
REPORTABLE
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTH
GAUTENG, PRETORIA)
CASE
NO: 8294/2012
DATE:14/03/2013
In
the matter between;
MNGUNI
JOHANNES
SELLO
.....................................................................
FIRST
APPLICANT
MNGUNI
LYDIA
MALUSI
...............................................................................
SECOND
APPLICANT
and
ABSA
BANK
LIMITED
...................................................................................
FIRST
RESPONDENT
SHERIFF
OF
WONDERBOOM
...................................................................
SECOND
RESPONDENT
NKOMO
K
M
…..............................................................................................
THIRD
RESPONDENT
REGISTRAR
OF
DEEDS
..............................................................................
FOURTH
RESPONDENT
JUDGMENT
KUBUSHI,
J
[1]
The applicants and the first respondent entered into a mortgage loan
agreement whereby the first respondent lent and advanced
to the
applicants an amount of R339 051 subject to interest thereon at the
rate of 9% per annum. As security for the said loan
the applicants
mortgaged their residential property which is the subject matter in
these proceedings.
[2]
In terms of the said agreement the applicants were to pay off the
amount lent in monthly instalments of R4 560-37. The applicants
fell
in arrears with their payments and the first respondent sued them for
the balance due and payable in terms of a mortgage loan
agreement.
[3]
At on e time or another, but before the first respondent issued
summons against the applicants, the applicants were placed under
debt
review in terms of section 86 of the National Credit Act (NCA). The
first respondent alleges that due to the supplicants’
default
under the credit agreement that was being reviewed it terminated the
debt review. This is denied by the applicants.
[4]
The first respondent issued summons which was served on the
applicants on 6 February 2012. According to the applicants when
they
were served with the summons, they were still under debt review. They
did not enter appearance to defend and judgment was
granted against
them in default on the 3 May 2012. In terms of the default judgment
the applicant’s residential property
was declared specially
executable. The property was attached by the sheriff on 24 May 2012
and sold in execution to the third respondent
on 27 July 2012. The
applicants only became aware of the judgment and the attachment on 25
May 2012 when they consulted with their
debt counsellor.
[5]
On 9 July 2012 the applicants launched an urgent application seeking
to interdict the sale in execution of their residential
property
scheduled for 27 July 2012. The urgent application was dismissed with
costs on 24 July 2012. The applicants have now approached
this court
for an order in terms of rules 31 (2) (b) and 42 (1) (a) of the
Uniform Rules of Court (the Rules) to rescind the judgment
granted on
3 May 2012.
[6]
I am of the view that the applicants make out a strong case for the
rescission of judgment by virtue of rule 42 (1) (a). Their
application is based on the ground that the first respondent was not
procedurally entitled to obtain judgment against them. It
has been
held that where the Rules prescribe a particular procedure, and that
procedure is not followed, then such procedural error
renders the
judgment sought and granted “erroneous” within the
meaning of rule 42 (1) (a). Effectively, what is being
rescinded is
the procedure in terms of which the judgment was granted, and
therefore, by necessary implication also the judgment.
I rule
therefore that rule 42 (1) (a) is the applicable rule in this
instance. See FRAIND v NOTHMANN
1991 (3) SA 837
(W) at 839H and LODHI
2 PROPERTIES INVESTMENTS CC AND ANOTHER V BONDEV DEVELOPMENTS
2007
(6) SA 87
(SCA) at para [24].
[7]
The first respondent contended in its papers that the application was
not launched within the 20 days period prescribed by the
rules and
that the applicants ought to have applied for condonation for such
late filing. However, the first respondent’s
counsel did not
canvass the issue at the hearing of the application. He was correct
not to have done so. There is no stipulated
time period within which
to bring an application in terms of rule 42 (1) (a) of the
Rules,
as long as it has been brought within a reasonable time. My view is
that the application in this instance was brought within
a reasonable
time and there was no need for the applicants to apply for
condonation.
[8]
The jurisdictional facts upon which the applicants rely in their
application are the following:
a.
that the first respondent failed to properly terminate the debt
review proceedings against them before issuing summons against
them;
b.
that the first respondent did not comply with the
requirements
of rule 17 (2) (b) and rule 18 (6) of the Rules;
c.
that the applicants5 constitutional right to housing will be
infringed if the judgment is not rescinded. This defence was not
canvassed by the applicants’ counsel at the hearing of the
application nor did the first respondent’s counsel refer
to it.
I shall therefore not deal with it in my judgment; and
d.
At the hearing of the application, the applicants’ counsel
raised another jurisdictional fact that the summons issued by
the
first respondent is premature.
[8]
The first respondent is resisting the application on the basis that
the applicants did not make out a case for relief in terms
of rule 42
(1)(a).
[9]
I shall deal in my judgment in seriatim with the defences as they
were argued before me at the hearing of the application.
NON-COMPLIANCE WITH SECTIONS 86 (10)
OF THE NATIONAL CREDIT ACT (NCA)
[10]
It is common cause, as per the track and trace report from the post
office, that the section 86 (10) notice was sent to erf
4864, The
Orchards Extension 30, Pretoria, 0200 which is the address chosen by
the applicants as their domicilium citandi et executandi.
The
applicants however, aver that they did not receive the notice. Their
explanation is that the domicilium was chosen by them
as an address
for the service of notices, communications or legal processes.
According to them the correct address for delivery
of letters,
statements and notices is 4864 Golden Pond Complex, Ignatius Street,
The Orchards Extension 30, 0200 which is the physical
street address
of the property which describes the erf number. Their counsel
referred me in this regard to the judgments in HILL
v INNESDALE
MUNICIPALITY
1927 TPD 975
; POCCOCK v DE OLIVIERA AND OTHERS
2007 (2)
SA 90
(W) at 92F - G; PHILANI-MA-AFRIKA AND OTHERS v MAILULA AND
OTHERS
2010 (2) SA 573
(SCA) at 574! -J; FIRSTRAND BANK LIMITED v
GAZU
2011 (1) SA 45
(KZP) 47G - I
[12]
The applicants aver that the first respondent did have due knowledge
of this street address because they have complied with
the
requirements in terms of the
Financial Intelligence Centre Act 38 of
2001
; and the address is also evident from the writ of attachment of
immovable property, which was issued by the first respondent’s
attorneys, attached as “MT10” in the papers. In this
respect, their counsel referred me to the judgment in SEBOLA AND
ANOTHER v STANDARD BANK OF SOUTH AFRICA LTD
2012 (5) SA 142
(CC) at
para [69], [87] p166E - F, p186G - H.
[13]
The applicants submit that it is clear that the notice would not have
reached them as it was forwarded to the wrong address
and that is
why, as reflected in the track and trace report, it was returned to
the first respondent. As a result of non-delivery
of this notice the
debt review was not properly terminated, they say. The applicants
also allege that since the delivery of the
notice is an essential
part of the first respondent’s cause of action, the effect of
failure to deliver the aforesaid notice
is that the first
respondent’s cause of action is lacking. Their counsel referred
me to the judgments in ROSSOUW AND ANOTHER
v FIRSTRAND BANK LTD
2010
(6) SA 439
(SCA); AFRICAN BANK LTD v MYAMBO NO AND OTHERS
2010 (6) SA
298
(GNP) at 310G - H and 311A - C; SEBOLA AND ANOTHER v STANDARD
BANK OF SOUTH AFRICA LTD above at paras [75], [76] and [153] p189F
-
H
[14]
The first respondent on the other hand allege that the
section 86
(10) notice was properly served on the applicants. According to the
first respondent the notice was sent to the address chosen
by the
applicants for service of notices, communications and legal processes
and that the distinction which the applicants seek
to draw in this
respect is artificial and of no assistance to them. In this regard,
the respondent’s counsel referred me
to the judgments
in LENCH AND ANOTHER v COHEN AND
ANOTHER
2006 (2) SA 99
(W) and LORYAN (PTY) LTD v SOLARSH TEA AND
COFFEE (PTY)LTD
1984 (3) SA 834
(W) at 847G - H.
[15]
The first respondent avers also that since the SEBOLA - judgment it
is settled that the mere production of a track and trace
report from
the post office which proves that the notice reached the correct post
office suffices as proof of delivery. The first
respondent’s
counsel referred me to the judgment in SEBOLA AND ANOTHER v STANDARD
BANK OF SOUTH AFRICA LTD AND ANOTHER above
at paras [74], [75], [76]
and [79].
[16]
According to the first respondent’s counsel it is apparent from
the track and trace report attached to the papers that
the notice
reached the correct post office, a notification for collection was
sent to the applicants and that the notice was kept
at the post
office from 20 January 2012 until 27 February 2012 when the return
process was commenced. He further submitted that
the applicants do
not allege that they did not receive the notification nor do they
assert that the notice went astray or was not
collected or not
attended to once collected; it cannot therefore, according to him, be
found that the notice did not come to their
attention. The notice was
available for collection and the applicants purposely neglected to
collect the item. Therefore it is
submitted that the
section 86
(10)
notice was properly served. He also submitted that the applicants
became aware of this defence only after the default judgment
was
granted and can therefore not rely on it. He referred me to the
judgment in MORKEL v ABSA BANK BPK EN ‘n ANDER 1996(1
ISA 899
(C).
[17]
The issue which this court must determine is whether the first
respondent complied with the provisions of
section 86
(10) read with
section 129 (1) and 130 (1) of the National Credit Act. The
applicants’ assertion is that they did not receive
the notice
because it was returned unclaimed to the first respondent. The first
respondent on the other hand, contents that, even
though the notice
was returned to the sender, it was however delivered to the
applicants because it was forwarded to the domicilium
address chosen
by them.
[18]
I was referred to two judgments wherein the issue of whether a track
and trace report which indicate that the postal item sent
per
registered mail was despatched to and did in fact reach the correct
post office, but was subsequently returned unclaimed to
the sender,
suffices as adequate proof of delivery. ABSA BANK LTD v MKIZE AND
ANOTHER AND TWO SIMILAR CASES
2012 (5) SA 574
(KZD) and NEDBANK
LIMITED v BINNEMAN AND THIRTEEN SIMILAR CASES
2012 (5) SA 569
(WCC).
[19]
At the time of granting judgment the court in those two cases
accepted the track and trace report as proof of adequate delivery
even though the notice was returned to the sender This was also the
case in this instance. However what distinguishes those two
cases
from the current case is the fact that the applicants are now
contesting the matter and are asserting that they did not receive
the
notice. It is clear from the SEBOLA - judgment that contested and
uncontested matters are not dealt with in the same manner.
See SEBOLA
& ANOTHER v STANDARD BANK OF SOUTH AFRICA LTD & ANOTHER above
at papas [78] and [79].
[20]
The issue of the delivery of notices in terms of the National Credit
Act, in my view, was finally laid to rest by the Constitutional
Court
in the now famous SEBOLA - judgment, from which both counsel
copiously quoted and to which I have also been referred. In
that case
it was held that although the NCA, does not give a clear meaning of
‘deliver’, it is however, required that
the credit
provider seeking to enforce a credit agreement aver and prove that
the notice was delivered to the consumer. Where the
credit provider
posts a notice, per registered mail, proof of a registered despatch
to the address of the consumer together with
proof that the notice
reached the appropriate post office for delivery to the consumer will
in the absence of contrary indications
constitute sufficient proof of
delivery. In practical terms this means that the credit provider must
obtain a post-despatch ‘track
and trace’ print-out from
the website of the South African Post Office as proof that the notice
reached the correct post
office. Coupled with proof that the notice
was delivered at the correct post office, it may reasonably be
assumed in the absence
of contrary indication, and the credit
provider may credibly aver, that the notification of its arrival at
the post office reached
the consumer and that a reasonable consumer
would have ensured retrieval of the item from the post office.
However, if, in contested
proceedings, as is the case in this
instance, the consumer avers that the notice did not reach him or
her, the court must establish
the truth of the claim. If, the
consumer asserts that the notice went astray after reaching the post
office, or was not collected,
or not attended to once collected, the
court must make a finding whether, despite the credit provider’s
proven efforts, the
consumer’s allegations are true. See SEBOLA
AND ANOTHER v STANDARD BANK OF SOUTH AFRICA LTD AND ANOTHER above at
paras [54],
[76], [77], [79] and [87].
[21]
Except for the fact that the rule 86 (10) notice was returned
unclaimed to the first respondent, the evidence provided by the
first
respondent ordinarily constitutes adequate proof of delivery of the
notice: the registered despatch slip attached to the
papers proves
that the notice was sent to the applicants per registered post; the
track and trace report attached to the papers
is sufficient proof
that the notice reached the appropriate post office for delivery to
the applicants; the notice was forwarded
to the domicilium address
chosen by the applicants in the loan agreement, which fact is not
denied by the applicants; and the track
and trace report attached to
the papers confirms that the notification of the notice’s
arrival at the post office was sent
to the applicants for collection.
[22]
However, the applicants assert that they did not receive the notice.
The court in the SEBOLA - judgment held that if, in contested
proceedings the consumer avers that the notice did not reach him or
her, the court must establish the truth of the claim. It is
common
cause that the notice was not collected from the post office and was
as a result returned to the first respondent. In order
to satisfy the
requirements of section 86 (10) a consumer must not only receive the
notice but must also take notice of it. Even
though the first
respondent is of the view that the notice was sent and delivered to
the applicants’ chosen address, there
is however no proof that
they received it. To me the track and trace report, attached to the
papers before me, which indicates
that the notice was returned to the
respondent, is the evidence that proves that the notice did not come
to the attention of the
applicants. I am not persuaded by the
submission by the first respondent’s counsel that the
applicants neglected to fetch
the notice from the post office. This
to me is mere speculation as there is no evidence before me to
substantiate the claim. To
my mind, the track and trace report is
conclusive proof that the applicants did not receive the notice. I
rule therefore that the
first respondent did not properly terminate
the debt review process.
[23]
However this is not the end of the matter. Section 130 (4) (b) makes
it clear that where a credit provider has not complied
with the
relevant provisions of this Act by for example, failing to first
provide notice to the consumer, as contemplated in section
86 (10)
the action is not void.
Section
130 (4) (b) provides as follows:
“
In
any proceedings contemplated in this section, if the court determines
that -
(b)
the credit provider has not complied with the relevant provisions of
this Act, as contemplated in subsection 3(a),
..
. 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. ”
Section
130 (3) (a) provides as follows:
“
Despite
any provisions of law or contract to the contrary; in any proceedings
commenced in court in respect of a credit agreement
to which this Act
applies, the court may determine the matter only if the court is
satisfied that -
(a)
In the case of proceedings to which sections 127, 129 or 131 apply,
the procedures required by those sections have been complied
with. ”
Section
129 (1) (b) (i) provides that -
“
If
the consumer is in default under a credit agreement; the credit
provider-
(b)
Subject to section 130 (2), may not commence any legal proceedings to
enforce the agreement before -
(i)
first providing notice to the consumer; as contemplated in paragraph
(a) or in section 86 (10), as the case may be. ”
Non-compliance
with the provisions of section 86 (10) leads to a pause not to a
nullity. I must, therefore, adjourn the matter,
and make an
appropriate order requiring the first respondent to complete specific
steps before resuming the matter. The bar on
proceedings is thus not
absolute, but only dilatory. See SEBOLA AND ANOTHER v STANDARD BANK
OF SOUTH AFRICA LTD AND ANOTHER above
at para [53].
ISSUING OF SUMMONS PREMATURE
[24]
At the hearing of the application the applicants’ counsel
argued that should I find that the debt review process had
been
properly
terminated,
the applicant had in any way not complied with the provisions of
section 86 (10) in that the action by the first respondent
was
premature. His contention being that the summons was issued before
the ten day period prescribed in section 86 (10) had lapsed.
According to the counsel, the section 86 (10) notice was posted on 8
February 2012 and the summons was served on the applicants
on 16
February 2012. The ten day period had not expired by then. Even if,
for argument’s sake, if the notice was received
that same day,
the first respondent should have issued and served summons on 23
February 2012, so the argument went. I do not agree
with him.
[25]
I have since ruled that the first respondent did not comply with the
provisions of section 86 (10) in that the debt review
process was not
properly terminated. However, in terms of section 130 (4) (b) and on
the grounds already stated in paragraph [23]
of this judgment, this
point has become academic and requires no further deliberation.
[26]
The submission by the applicant’s counsel that the issue was
wrongly decided by the Constitutional Court in the SEBOLA
-
judgment,
is in my view not correct. He contends that the issue was correctly
decided in ROSSOUW AND ANOTHER v FIRSTRAND BANK LTD
above.
[27]
This issue was not an issue for determination in the ROSSOUW -
judgment. The court in that case, in respect of section 129
(1),
grabbled with the issue of ‘delivery1. On a thorough reading of
the judgment I do not understand the court in that case
to have come
to a decision that a summons issued before the expiration of the ten
day period required in section 129 becomes a
nullity. In that case,
the court having referred to section 129 in paragraph [21] of its
judgment stated thereafter in paragraph
[22] as follows:
'Evidently,
a credit provider may not commence legal proceedings to enforce its
claim without complying with the injunction contained
in s 129 (1)
(a)/
[28]
The learned judge was, with respect, correct to have said so. When
the section is read alone like that, it does convey a meaning
which
the judge attached to that section. However, to come to a proper
meaning and or interpretation of the section the section
must be read
together with section 130, in particular section 130 (4) (b). Section
129 (1) (b) (ii), itself, enjoins a court to
‘meet any
further
requirements set out in section 130\ It would therefore be incorrect
for a court to read section 129 in isolation without
taking the
provisions of section 130 into consideration. In terms of section 130
(4) (b) (the section is quoted in paragraph [23]
of this judgment),
where a credit provider has not complied with the relevant provisions
of this Act as contemplated in, amongst
others, section 129, the
court must adjourn the matter before it and make an appropriate order
setting the steps which the credit
provider must follow before the
matter may be resumed. My understanding is that even though section
129 (1) (b) prescribes that
proceedings may not be commenced with
before compliance with paragraph (a) of that section or section 86
(10), however, where it
is found that proceedings have been proceeded
with and there was no compliance with the provisions of the Act,
section 130 (4)
(b) kicks in. The provisions of section 130 (4) (b)
are peremptory, as against those of section 129 which are merely
directory,
and must be complied with. To my mind the judgment of the
Constitutional Court in this regard is correct and must be followed.
NON-COMPLIANCE WITH RULE 17 (2) (b)
AND RULE 18 (6) OF THE UNIFORM RULES OF COURT
[29]
A further submission by the applicants is that since the first
respondent’s claim, as per the particulars of claim, is
based
upon a written credit agreement which is secured by a mortgage bond,
the first respondent was obliged in terms of rules 17
(2) (b) and 18
(6) to attach a copy of the written credit agreement to the summons.
According to the applicants the mortgage bond
attached to the summons
does not contain the essentialia which are normally encountered in a
credit agreement and that in order
to ascertain a possible
indebtedness the mortgage bond must be construed together with the
relevant credit agreement. Their counsel
referred me to the judgments
in MOOSA AND OTHERS NNO v HASSAM AND OTHERS NNO
2010 (2) SA 410
(KZP)
at paras [16] and [17] and ABSA BANK LTD v STUDDARD & ANOTHER
[2012] JOL 28604
(GSJ) at paras [24] and [25].
[30]
The first respondent resisted the applicants’ submission by
arguing that it was not obliged to issue a combined summons
and that
as a result rules 17 (2) (b) and 18 (6) were not applicable. The
first respondent's counsel contended at the hearing of
this matter
that
the
first respondent was entitled to utilise a simple summons and
therefore the provisions of rule 18 (6) are not applicable. The
provisions of rule 17 (2) (b), according to him, do not require
compliance with rule 18 and thus the rule is not applicable. He
referred me to a judgment in STANDARD BANK OF SOUTH AFRICA LIMITED v
ONEANATE INVESTMENTS (PTY) LTD (in liquidation)
[1997] ZASCA 94
;
1998 (1) SA 811
(SCA)
at 825D
[31]
Rule 17 (2) (b) provides that-
“
In
every case where the claim is for a debt or liquidated demand the
summons shall be as near as may be in accordance with Form
9 of the
First Schedule.”
Rule
18 (6) provides that -
“
A
party who in his pleading relies on a contract shall state whether
the contract is written or oral and when, where and by whom
it was
concludedand if the contract is written a true copy thereof or the
part relied on in the pleading shall be annexed to the
pleading.
[32]
Form 9 is intended for use as a simple summons. It is correct that
rule 17 (2) (b) does not specifically stipulate compliance
with rule
18. It has, however, been held that where the cause of action is
founded on some document, reference thereto should be
made in
the
simple summons and a copy should be attached to the summons and the
original thereof handed in at the time when application
for default
judgment is made. See VOLSKAS BANK LTD v WILKINSON
1992 (2) SA 388
(C) at 398A and ABSA BANK LTD v STUDDARD & ANOTHER at paras [6],
[10] and [15]
[33]
I am in respectful agreement with the above decisions. Even though
rule 17 (2) (b) does not specifically stipulate compliance
with rule
18, this rule must however be complied with. A simple summons is
intended for use in claims for a debt or liquidated
demand. Form 9,
thus, requires that the claim be set out with sufficient clarity for
the court to decide whether judgment should
be granted or not. The
defendant must also ex facie the summons, be aware of what is being
claimed from him or her. It is therefore,
necessary, in my view, for
a copy of a document on which the cause of action is based to be
attached to such a summons.
[34]
The judgment in STANDARD BANK OF SOUTH AFRICA LIMITED v ONEANATE
INVESTMENTS (PTY) LTD (in liquidation), to which the first
respondent's counsel referred me
to,
is distinguishable from the two judgments. In that case the court was
dealing with a cause of action based upon a claim for
an amount due
and payable by the defendant to the plaintiff by way of overdraft at
the former’s special instance and request.
The issue of a
document and/or written agreement did not arise.
[35]
It is common cause that in this instance the first respondent did not
attach the loan agreement to the summons. Only the mortgage
bond was
attached. It is also evident from paragraph 1 of the particulars of
claim that the first respondent is relying on the
terms of a mortgage
loan agreement entered into between the first respondent and the
applicants which is secured by a mortgage
bond. I am in agreement
with the applicants’ counsel that a mortgage bond does not
always contain all the essentialia that
would ordinarily be found in
a loan agreement and that in order to establish the indebtedness the
mortgage bond must be read together
with the loan agreement. The
submission by the first respondent’s counsel that a mortgage
bond can stand on its own like
a suretyship agreement has in my view
no merit. A mortgage bond is always accessory to a principal
obligation: its existence and
continued existence is dependent upon
the existence of the principal obligation which it secures. This
agreement is obligatory
in nature and necessary for the constitution
of a mortgage bond. See Francois du Bois: WILLE’S PRINCIPLES OF
SOUTH AFRICAN
LAW 9th ed p631 -632 and p634 and NEDBANK LTD v FRASERS
AND ANOTHER AND FOUR OTHER CASES 2011 (4)
SA
363 (GSJ) at paras [57] -[58] p383 - 384.
[36]
For a mortgage bond to stand on its own it must contain all the
esserttialia contained in the underlying agreement. This is
not the
case in this instance. For example, paragraph 1 (b) of the
particulars of claim, sets out the repayment clause and states
that
the current monthly instalment amounts to R4 560-37. This clause does
not appear on the mortgage bond. The repayment clause
in the mortgage
bond refers to ‘such written agreement or agreement as have
been concluded, or which may be concluded from
time to time’.
None of these agreements are attached to the summons and it cannot
therefore be readily determined whether
the applicants have defaulted
in their undertaking or not. The default clause in the mortgage bond
refers as well to the 'terms
or conditions of any written agreement
or agreements between the mortgagor and the bank. These agreements
referred to are not attached
to the summons. To my mind the
applicants’ counsel is correct the loan agreement must have
been attached to the summons.
[37]
The applicants’ counsel contended further in argument that the
effect of non-compliance with rules 17 (2) (b) and 18
(6) is that the
first respondent’s cause of action will not be properly pleaded
and is therefore incomplete. He is correct.
[38]
It has been held that if a pleader relies on a written contract a
true copy thereof must be annexed. If the copy of the required
document is not attached to the simple summons, the summons would not
disclose a cause of action. See ABSA BANK LTD v STUDDARD
&
ANOTHER above at paras [15] and [18].
[39]
In this instance a copy of the loan agreement was not attached. In
the absence of the written loan agreement the basis of the
first
respondent’s cause of action does not appear ex facie the
pleadings and is therefore excipiable. Judgment cannot be
granted on
a summons in which the cause of action is excepiable and on that
ground alone the first respondent was not entitled
to judgment The
judgment granted against the applicants must therefore be rescinded
and the applicants be given leave to defend
the matter
[40]
The applicants prayed for a cost order on an attorney and client
scale against the party opposing the application. Only the
first
respondent opposed the application.
[41]
The respondent’s counsel contended that if the court finds in
favour of the first respondent, it should award costs on
an attorney
and client scale against the applicants as agreed between the parties
in the mortgage bond. However, if the judgment
is rescinded, costs
should not be awarded against the first respondent as the applicants
did not have a defence to the claim and
only raised technical issues
and also because the applicants have dragged their feet in bringing
this application to court. He
prayed that the court should grant
costs against the first respondent only if it can be found that the
first respondent’s
opposition to the application was frivolous.
He contended that the first respondent’s opposition was not
frivolous.
[42]
It is trite that the successful party is entitled to the costs of
suit. However, in this instance the applicants are seeking
an
indulgence. I also did not find the first respondent’s
opposition to the application frivolous. As a result I see no reason
why the first respondent should be burdened with costs. A fair and
just order should, in the circumstances of this case, be that
each
party pay own cost.
[43]
I therefore make the following order -
a.
Prayers 1, 3, and 4 of the Notice of Motion are granted.
b.
The applicants are granted leave to defend the matter.
c.
Each party to pay own costs.
E.
M. KUBUSHI
JUDGE
OF THE HIGH COURT
HEARD
ON THE :21 FEBRUARY 2013
DATE
OF JUDGMENT : 14 MARCH 2013
APPLICANT’S
ATTORNEY : MR F GREEF
APPLICANT’S
ATTORNEY : GREEF & VAN WYK ATTORNEYS
RESPONDENT’S
COUNSEL : ADV E P VAN RENSBURG
RESPONDENT’S
ATTORNEY : VAN ZYL LE ROUX INC