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[2013] ZAGPPHC 131
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Absa Bank Ltd v Mabonga and Another (21201/12) [2013] ZAGPPHC 131 (24 May 2013)
NOT
REPORTABLE
IN
THE NORTH GAUTENG HIGH COURT,
PRETORIA
(REPUBLIC OF SOUTH AFRICA)
DATE:
24 May 2013
CASE
NO: 21201/12
In
the matter between:
ABSA
BANK
LTD
........................................................................................
PLAINTIFF
And
ERNESTTINAHSE
MABONGA.
...............................................................
1st
DEFENDANT
MARGARET
SIBONGUMUSA MABONGA
.............................................
2nd
DEFENDANT
JUDGMENT
EBERSOHN
AJ
[1]
This is a judgment in an opposed summary judgment application.
[2]
The applicant is ABSA BANK LIMITED, a bank (the plaintiff).
[3]
The defendants are Ernest Tinashe Mabonga and Margaret Sibonumusa
Mobonga ("the defendants").
[4]
In terms of agreements the plaintiff advanced monies under security
of bonds B94246/2007,B13483/2008, B40962/2008 and B94114/2008
to the
defendants.
The
total amount lent and advanced by the plaintiff to the defendants
amounts to R2 943 799,55 which amount is further subject to
interest
at the rate of 9% per annum from 29 March 2012 to date of payment,
the said interest to be calculated and capitalized
montly.
The
agreements made provision therefore that the outstanding amount on
the loans would be payable on demand.
[5]
The last payment made by the defendants on the loan was in the amount
of R100,00 on 31 March 2012.
[6]
Defendants have in terms of the four bonds mortaged in favour of the
plaintiff the property Erf 36, Country View Estate Township,
Registration Division J.B Gauteng Province, Measuring 981 square
metres held by the defendants in terms of deed of transfer no
T75573/2007.
[7]
The defendants also undertook to pay costs, on the scale of attorney
and client in the event of litigation between plaintiff
and
defendants.
[8]
Due to the failure of the defendants to pay the monthly payments the
plaintiff decided to commence proceedings against the defendants.
[9]
In terms of the bonds and loan agreement the amount owing under the
bonds could be proven by a certificate issued by a responsible
official of the plaintiff. Such a certificate was issued and was
attached to the simple summons as annexure 6.
[10]
Due notice in compliance with the provisions of
section 129
of the
National Credit Act, No 34 of 2005
, was forwarded by the plaintiff to
the defendants per registered post According to the track and trace
report, annexure "Bl"
to the single summons, it was not
collected at the post office for four months by the defendants and
was then returned to sender.
[11]
The summons was then issued and served on the two defendants on the
27th June 2012 by affixing it to the main gate of the bonded
property
in terms of the provisions of
rule 4(l)(a)(iv)
, it being their chosen
domicilium citandi et executandi.
[12]
After an appearance to defend was filed and served by the defendants'
attorney the plaintiff brought an application for summary
judgment
which was to be heard on the 12th November 2012.
[13]
The affidavit filed in support of the application for summary
judgment seems to be in order.
[14]
On the 12 November 2012 the application for summary judgment was
postponed sine die for the defendants to file an opposing
affidavit.
[15]
Subsequent thereto the defendants' attorney of record withdrew by
notice dated the 25th January 2012 and served on the 31st
January
2013.
[16]
Before the defendant's attorney withdrew, however, a notice of
re-enrolment of the application for summary judgment was served
on
the attorney on the 24th January 2013. The new date for the hearing
of the application was the 11th March 2013. On this day
the matter
was for some reason struck fro;:. .;te roil shortly after 10:20
instead of stood down until the end of the roll. The
motion courts
are running simultaneously and the advocates move from Court to Court
and applicant's counsel advised she was in
another motion court and
this matter should have been stood down in the court it was supposed
to be heard in until the end of the
roll but somebody, apparently,
the first defendant, called the matter in court and as the plaintiffs
counsel was in anther court,
as she had the right to be, and thus
absent the matter was removed from the roll.
[12]
The matter was re-enrolled for the 15th April 2013.
[13]
The amount owing to the plaintiff is not in dispute by the
defendants.
[14]
The only defence the defendants raised in the opposing affidavit is
that the plaintiff has offered them a "Helpusell"
being an
optional facility that helps the debtor to sell its property at a
market related price to pay their bond.
[15]
The defendants attached to their opposing affidavit the ABSA
Helpusell Brochure, but not the required properly signed mandate
in
favour of the plaintiff to sell their property in terms of the
scheme. According to the papers the Helpusell Mandate was e-mailed
to
the defendant by the plaintiff on the 15th October 2012 requesting
them to sign the mandate and return ;t to the plaintiff as
a matter
of urgency ^ _ : 43 of the paginated papers.) The defendants were
also requested to send copies of their ID documents
and of the latest
rates and taxes statement of the property. This they did not do.
[16]
On the 22nd October 2012 the first defendant advised the plaintiff
that he was just waiting for his wife, the second defendant,
to
return and sign the Helpusell brochure after which he would forward
it to the plaintiff. This did not happen.
[17]
The Helpuseii Mandate brochure specifically makes provisions that the
mandate does not diminish or limit any right which the
plaintiff may
have to any other legal remedies in respect of the loan agreement
and/or mortgage bonds and that the plaintiff reserves
the right to
uninterruptedly continue with the legal collection process during the
mandate period.
[18]
Paragraph 9 of the defendant's opposing affidavit reads as follows:
"In
our case this has not happened because the product which we were
entitled to as an Absa client was not offered to us nor
where (sic)
we provided the opportunity to accept/decline it."
[19]
In paragraphs 20 and 21 supra, they detailed that the brochure was in
fact forwarded to the defendant and on the 22nd October
2012 the
first defendant indicated that he was just awaiting the return of his
wife to sign the brochure.
[20]
There is no allegations in the opposing affidavit that the conditions
set out in the brochure were ever complied with namely
inter alia:
a)
they must sign the brochure;
b)
they must continue paying the monthly bond payments;
c)
they must furnish their ID documents and the latest statement
regarding rates and taxes.
[21]
The first defendant was present in court on the 15th April 2013 and
he was given the opportunity to address the court after
advocate
Pretorius argued the matter on behalf of the plaintiff.
[22]
He handed up a "supplementary affidavit" deposed to by
himself and his wife.
[23]
The Helpuseil Mandate of which a copy was now attached as annexure
"A" to the supplementary affidavit was purportedly
signed
on the 16th October 2012 by both defendants. Yet in the opposing
affidavit which was deposed to on the 10th November 2012
there in
both defendants under oath stated that the Helpusell Mandate was not
offered to them by Absa. They thus openly lied to
this court under
oath.
[24]
Clause 7.9 of the Helpusell Mandate reads as follows:
"7.9.......
agree that this mandate does not diminish or limit
any
right which the Bank may have to any other legal remedy in respect of
my/our PB1 Loan Agreement and/or mortgage
bond
with the Bank and furthermore understand and acknowledge that the
Bank reserves the right to uninterruptedly continue with
the legal
collection process during the mandate period. The Bank may exercise
its discretion to postpone the granting of judgment
and/or a Sale in
Execution/7
[30]
The court cannot come to any other conclusion that the signed
HelpuseN Mandate attached as annexure "A" the to
supplementary
opposing affidavit was not signed on the day it is
purported to have been signed.
30.1
It is clear that no binding Helpuseil Mandate came into being between
the plaintiff and the defendant.
30.2
Even if such an agreement came into being the defendant did not pay
the monthly instalments and have hopelessly fallen into
arrears with
their payments and the plaintiff is entitled to proceed with the
legal process.
30.3
It is clear that summary judgment should be granted.
30.4
According to the addendum to the "supplementary"' opposing
affidavit the defendants were unemployed and paid only
R100 on the
bonds and is hopelessly in arrears. It is evident
that
the defendants were and are in no position to bring the arrears up to
date as both are unemployed.
30.5
This matter has been delayed for several months already by the first
defendant's manoeuvres. The defendant enjoyed staying
in the
luxurious property without paying for the privilege and the arrears
are escalating to the detriment of the plaintiff.
30.6
The defendant agreed in the loan agreement and bonds that in the
event of them falling into default of their contractual obligation,
the plaintiff would be entitled to institute proceedings against them
for payment and for a court to declare the mortgaged property
executable (see Absa Bank Limited vs Gary Edgars Petersen Case
932/2011 in the Western Cape High Court, Cape Town, being a judgment
of BINNS-WARD J)
[31]
No facts had been placed before this court as to why execution
against the property should not follow the ordinary course and
there
is no proof or any indication at all before this Court that the
defendants possess sufficient movable assets to sell in execution
to
satisfy the judgment debt, and/or would ever be able to liquidate the
arrear instalments.
[32]
Not to grant the right to execute and sell in execution would only
bring about a purposeless delay, be an unreasonable and
unjustifiable
impingement on the plaintiffs contractual rights, extra legal cost
and an unnecessary additional burden on the court's
time and
resources (See [35] of the judgment of BINNS-WARD J referred to
supra).
[33]
The history has shown that the plaintiff has been very accommodating
of the defendant's financial problems and it is time that
this now
ends.
[34]
The following order is made:
"The
Court grants summary judgment against the two defendants jointly and
severally payment by the one releasing the other
one as follows:
1.
Payment of the amount of R2,943,799.55,
2.
Interest on the amount of R2,943,799.55 at the rate of 9% per annum
from 29 March 2012 to date of payment, the said interest
to be
calculated and capitalized monthly;
3.
An order declaring the property known as:
Erf
36 Country View Estate Township, Registration Division J.R.,Gauteng
Province, measuring 981 (NINE HUNDRED AND EIGHTY ONE) square
meters
and held by Defendants in terms of Deed of Transfer No T75573/2007,
("the immobable property"), executable
4.
Cost as between Attorney and client to be taxed, which costs wil
include the cost of the 12th November 2013, 11th March 2013
and 15
April 2013.
5.
That the Registrar be authorized to issue a Writ of Execution against
the immovable property referred to in order 3 above, to
give effect
to the order granted in terms of prayer 3 above so that the property
can be sold in execution.
P.Z.
EBERSOHN
ACTING
JUDGE OF THE NORTH GAUTENG HIGH COURT
Heard
on: 15 April 2013
For
the plaintiff: Adv L.A Pretorius
Instructed
by: VanZylLeRoux
For
the defendant: MrMabonga
Date
of Judgment: 24/05/2013