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[2013] ZAGPPHC 211
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Nedbank Ltd v Masterprops 439 (Pty) Ltd (42730/12) [2013] ZAGPPHC 211 (16 July 2013)
IN
THE NORTH GAUTENG HIGH COURT,
PRETORIA
(REPUBLIC OF SOUTH AFRICA)
CASE
NUMBER: 42730/12
DATE:
16 July 2013
NEDBANK
LIMITED
...............................................................................
PLAINTIFF / APPLICANT
MASTERPROPS
439 (PTY) LIMITED
.............................
FIRST
DEFENDANT /RESPONDENT
ZIGIRIADIS,
PANAGIOTIS
...........................................
SECOND
DEFENDANT /RESPONDENT
DOMENICO
CIOFFI
….......................................................
THIRD
DEFENDANT /RESPONDENT
JUDGMENT
MABUSE
J
1.
This matter came before me as an application for summary judgment. On
26 April 2013 I made the following order and promised that
I would
furnish reasons for the said order later, that:
“
1.
the application for summary judgment is refused;
2.
the defendants are hereby granted leave to defend;
3.
costs are reserved. ”
These
are therefore the reasons for the said order. At the heart of the
matter was, as required by the provisions of Rule 32 (3),
whether the
defendants had disclosed fully the nature and grounds of their
defence and the material facts upon which they relied.
Tersely the
issue was whether the defendants had disclosed any bona fide against
the plaintiffs action. This is the touchstone
in opposing any
application for summary judgment.
2.
The plaintiff is a public company duly incorporated according to the
company laws of this country and has its principle place
of business
at Braampark Office Park, Hoofd Street, Braamfontein. The plaintiff
trades as a registered deposit taking institution
in terms of the
provisions of the Banking Act 94 of 1990. In terms of the provisions
of section 40 of the National Credit Act 34
of 2005 (“the Act”)
the plaintiff is a registered credit provider. The first defendant is
a company duly registered
in accordance with the company laws of this
country and has its registered address at 3 Street Peter Road,
Gauteng Estate. It is
represented in this matter by Panagiotis
Zigiriadis, its director; the second defendant is an adult male who
presently resides
at 93 Nondela Road, Waterkloof Heights, Pretoria,
and the third defendant is an adult male who resides at 13 Toulouse
Minot Place,
Morningside Manor in Johannesburg.
3.
By a summons issued by the Registrar of this court on 23 July 2012
the plaintiff claimed from the defendants jointly and severally,
the
one paying and the others to be absolved: (1) payment in the sum of
R1 110 808.70, it being the balance due and owed under
mortgage bond
no. B185655/2007 (“the bond”) which bond was passed by
the first and second defendants in favour of the
plaintiff. The
plaintiff was the legal holder of the said bond. On 25 September
2007, and at Johannesburg, the second and third
defendants interposed
and bound themselves unto and on behalf of the plaintiff as sureties
jointly and severally in solidumau6
co-principal debtors for the due
payment by the first defendant to the plaintiff of all sums of money
which might at any time be
or become owing by or claimable from the
first defendant or by the plaintiff from any cause of debt
whatsoever; (2) Interest at
the rate of 7.40% per annum compounded
monthly from 1 May 2012 to date of payment, both days inclusive, due
and payable under the
said Mortgage Bond.
4.
The defendants failed to comply with the obligations in terms of the
mortgage bond. Consequently on or about 3 February 2012
the first
defendant entered into a Distressed Restructure Agreement in respect
of the abovementioned home loan. The plaintiff contended
that in
terms of the mortgage bond and the Distressed Restructure Agreement
the said amount was then due and payable by reason
of the fact that
the first, second and third defendants failed to pay punctual
instalments
provided
notwithstanding demand by way of a notice in terms of the provisions
of section 129, read with
section 130
, of the
National Credit Act 34
of 2005
. The plaintiff claimed furthermore an order declaring the
said property to be executable for the said sums provided for in the
agreement of loan which constituted the basis of the mortgage bond.
5.
The application for summary judgment was opposed by the defendants
who had, to that end, filed an affidavit deposed to by the
second
defendant. In the opposing affidavit the defendants had raised three
points in limine, namely:
1)
that the plaintiff had not complied with the provisions of Rule 18(6)
of the Uniform Rules of Court;
2)
that the plaintiff’s cause of action whether the Mortgage Bond
or Distressed Restructure Agreement was excepiable; and
3)
that the plaintiff’s summons was vague and embarrassing.
6.
Apart from the afore going points in limine there was furthermore
another ground defence of res judicata raised through an affidavit
filed by Hermanus Jacobus Kriel (“Kriel”), the
defendants’ attorneys of record. The Court had to deal with
this
issue of res judicata eve n though it had not been raised in the
papers. It was, in my view, a valid point and for fairness and
justice the Court could not have ignored it. What was of paramount
importance in my view was both parties were afforded an opportunity
to effectively ventilate the point. At any rate a duty rests on the
Court to satisfy itself that a party has made out a good case
that
entitles it to the remedy it seeks. If relevant facts that are not
placed before it, its ability to formulate a
balanced
assessment of the matter before it will, to the disadvantage of
either of the parties, be handicapped.
7.
The crux of the affidavit by the said Mr. Kriel was that the
plaintiff already had obtained judgment against the first defendant
in the South Gauteng High Court under case no. 15349/09 arising from
the same cause of action; that pursuant to the aforementioned
judgment a writ of execution was issued and that the property in
question was duly attached as a result. That there is already
a
judgment granted against the first defendant in favour of the
plaintiff in Johannesburg was confirmed by Adv. Mollentze, counsel
for the plaintiff in the current matter. During argument I asked him
what the difference was between the amount of the judgment
obtained
in Johannesburg and the current claim and he confirmed to this Court
that the difference represented interest. Mr. Schoeman
submitted that
in view of the existence of the judgment already obtained in
Johannesburg this Court could, under such circumstances,
not grant
the application for summary judgment. On the other hand, Mr Mollentze
argued that the defence of res judicata could not
be successful
because target of the said defence was home loan agreement not the
Distressed Restructure Agreement. He conceded
furthermore that it was
the aforementioned judgment that led to the Distressed Restructure
Agreement. The centrepiece of his submission
was that the plaintiffs
claim was not based on upon substantially the same set of facts. In
view of the fact that the issue regarding
res judicata constitutes
one of the battlegrounds another Court still has to decide, it is, in
my view sufficient to state that
it constitute a valid and debatable
issue. In the face of such an issue it would not have been proper for
the Court to grant the
application for summary judgment.
8.
On the other hand Rule 41(2) of the Uniform Rules of Court states as
follows:
“
Any
party in whose favour any decision or judgment has been given, may
abandon such decision or judgment either in whole or in part
by
delivering notice thereof by such judgment or decision abandoned in
part shall have effect subject to such abandonment. ”
9.
The judgment that the plaintiff obtained in Johannesburg has,
although it has not been satisfied, not been abandoned. Accordingly
the defendants have raised, in my view, a bona fide defence against
the plaintiff for summary judgment. The judgment so obtained
remains
valid until it is satisfied or abandoned. Once the plaintiff’s
cause of action against the defendants has been exhausted
by reason
of judgment whether based on a mortgage bond or not, no more room
exists in principle for enforcing the same claim under
the guise of a
Distressed Restructure Agreement. On this point above, even without
referring to the point in limine, I was satisfied
that the defendants
had disclosed fully the nature and grounds of their material defence
as well as the material facts upon which
they relied. They had
satisfied the Court that they had a bona fide defence against the
plaintiff’s action. It was on this
basis that I made the order
referred to in paragraph 1 supra.
P.M.
MABUSE
JUDGE
OF THE HIGH COURT
Appearances:
Plaintiff’s
Attorneys: Rossouws Lesie Inc
Plaintiff's
Counsel: Adv. JH Mollentze
Defendants
’ A ttorneys: Macho bane Kriel Inc
Defendants
’ Counsel: A dv. Z Schoeman
Date
Heard: 26 April 2013
Date
of Judgment: 16 July 2013