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[2013] ZAGPPHC 316
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Absa Bank Ltd v Schramm (44505/13) [2013] ZAGPPHC 316 (1 November 2013)
NOT
REPORTABLE
IN
THE NORTH GAUTENG HIGH COURT
(REPUBLIC
OF SOUTH AFRICA)
Case
No.: 44505/13
DATE:01/11/2013
In
the matter between:
ABSA
BANK
LIMITED
................................................................................................
Plaintiff
and
RUDIE
HERMANN
SCHRAMM
...........................................................................
Defendant
JUDGMENT
MNGQIBISA-THUSI
J:
[1]
In its application for summary judgment against the defendant, the
plaintiff seeks an order on the following terms:
1.1
payment of the amount of R3 217 523.75;
1.2
interest on the amount of R3 217 523.75 at the rate of 8.5% per annum
from 2 July 2013 to date of final payment, such interest
to be
calculated daily and capitalised monthly in arrears;
1.3
that the property described as Erf 1929 Kosmosdal Extension 30
Township, Registration Division J.R., province of Gauteng (also
known
as 7 Edinburgh Street, Blue Valley Golf Estate, Kosmosdal, Extension
30, Midrand ("the property"), be declared
specially
executable
1.4
costs on an attorney and client scale.
[2]
In its simple summons, the plaintiff alleges that the amount claimed
as well as the interest claimed are based on a loan agreement
concluded between the plaintiff and the defendant, which loan was
covered by a mortgage bond over the property, registered on 10
August
2006. The plaintiff, in compliance with Rule 17(2)(b) of the Uniform
Rules of Court, attached a copy of the registered mortgage
bond, the
certificate of balance, the section 129(l)(a) of the National Credit
Act notice and the track and trace slip. Furthermore,
plaintiff has
pleaded in terms of Firstrand Bank Ltd k Folscher and Another
2011
(4) SA 314
(NGP).
[3]
In its opposing affidavit, the defendant, over above its defence,
raised what it referred to as points of complaint:
3.1
that the plaintiff has failed to comply with Rule 17(2)(b) and Form 9
in that it did not set out in concise terms its cause
of action; and
3.2
that the certificate of balance attached to the simple summons was
not signed by one of the plaintiff's managers as set out
in the
mortgage bond.
Non-compliance with rule 17(2)(b) and
Form 9
[4]
If a plaintiff, in a simple summons, basis its cause of an action on
an agreement, such agreement has to be attached to such
summons.
[5]
It is the defendant's contention that the particulars of claim do not
disclose a cause of action nor do they comply with the
Rule and the
form in that the plaintiff has not attached the loan agreement and
has not set out the terms of the agreement. It
is the defendant's
contention that the way the plaintiff has pleaded the amount claimed
and the manner in which the interest was
calculated cannot be
ascertained without reference to the loan agreement.
[6]
In support of its contentions, the defendant referred the court to a
number of cases, inter alia, Volkskas Bank v Wilkinson
1992(2) SA 388
(C) and Nedbank v Jacobs 2008 JDR 0445 (C). In the Volkskas matter
the court stated that":
"It
appears to us accordingly that where a plaintiff sues for payment of
a loan (or an overdraft) all that a simple summons
need contain is a
statement setting out the relief claimed and a succinct outline of
the cause of action, ie that an agreement
of loan (or (overdraft) was
concluded between the parties providing for interest on the balance
outstanding from time to time at
a specified (or ascertainable) rate
and which loan (or overdraft) was repayable on demand (or on a fixed
or ascertainable date)
and which, despite demand (or the arrival of
that date), has not been repaid. Where the cause of action is founded
on some document,
reference thereto should be made in the summons and
a copy should be attached to the summons and the original should be
handed
in at the time when the application for default judgment is
made."
[7]
In the Nedbank matter, the court held that summary judgment could not
be granted where neither the relevant loan agreement nor
the mortgage
bond had been annexed to the simple summons."
[8]
In its summons, the plaintiff set out that for its cause of action it
was relying on a loan agreement it concluded with the
defendant, set
out the amount loaned and the interest charged. Over -above, the
plaintiff gave an explanation why the loan agreement
was not
attached. According to the plaintiff, the loan agreement was kept at
Docufile, a document storing company where a fire
broke out and it
has been unable to ascertain whether the defendant's loan agreement
is part of the documents destroyed in the
fire. It is the plaintiff's
contention that under the circumstances the mortgage bond was the
best evidence it could produce in
support of its claim.
[9]
I am of the view that the is no basis for the defendant's objection
in that the simple summons sets out the basis on which
the plaintiff
is seeking the relief claimed in that it has pleaded the existence of
a loan agreement concluded by the parties,
which is not denied by the
defendant, has set out the amount claimed and the manner in which the
interest can be ascertained. Furthermore,
given the explanation given
by the plaintiff for its failure to attach the loan agreement it
could not be expected of it to produce
something it did not have. The
plaintiff's situation is distinguishable from a situation where a
plaintiff uses a simple summons
and does not attach a document
evidencing the agreement between the parties. The defendant's
objection ought to fail.
Failure to comply with clause 9 of the
mortgage bond
[10]
Clause 9.1 of the mortgage bond reads as follows:
9.1
The amounts at any time owing by the Mortgagor to the Bank which are
secured under this bond (including any interest and the
rate or rates
at which and the period or periods for which interest is calculable)
and the fact that such indebtedness is due and
payable may be
determined and proved by a certificate signed by any manger of the
Bank whose appointment and authority to sign
such certificate need
not be proved."
[11]
It is the defendant's contention that the certificate of balance
signed by Charon Louise Edmunds ("Ms Edmunds") does
not
comply with clause 9 of the bond since it is not signed by a manager.
[12]
In the certificate of balance Ms Edmunds describes herself as a
Specialist, Retail Bank Collections of Absa Bank limited...'.
The
defendant's objection is misplaced. As correctly pointed out by
counsel for the plaintiff, in the affidavit in support of the
summary
judgment application to which Ms Edmunds depose, she clearly
indicates that she is a 'manager and specialist within Retail
Bank
Collections...".
[13]
In his opposing affidavit the defendant admits that he concluded a
loan agreement with the plaintiff and that the loan was
secured by a
mortgage bond over the property. Defendant pleads that the loan
account was linked to an account named 'one account'
in which he has
been making payments into. It is the defendant's contention that the
payments he has been making into the 'one
account should have reduced
his indebtedness to the defendant. Further that the way the plaintiff
has pleaded it is not possible
to determine what the arrears are.
[14]
What is apparent from the defendant's contention is that he does not
deny that he might be in arrears. Clause 9.2 of the mortgage
bond
provides that the certificate of balance will be proof of the 'of the
facts stated therein, unless the Mortgagor is able to
prove the facts
incorrect.' However, even though the defendant denies the amount
claimed and alleges that he has been making payments,
he has not
provided any proof that the amount claimed is incorrect.
[15]
I am satisfied that the defendant does not have a bona fide defence
to the plaintiff's claim. Furthermore, taking into account
the size
of the loan advanced to the defendant, I am satisfied that he has the
means to acquire alternative accommodation if the
plaintiff decides
to execute against the property.
[16]
In the premise the following order is made:
[17]
Accordingly the following order is made:
Summary
judgment is granted against the defendant for:
25.1
Payment by the defendant of the amount of R3 217 523.75;
25.2
Payment of interest on the sum of R3 217 523.75 at the rate of 8.5%
per annum from 2 July 2013 to date of final payment, such
interest to
be calculated daily and capitalised monthly in arrears;
25.3
The property, Erf 1929 Kosmosdal extension 30 Township, Registration
Division J.R., Province of Gauteng, is declared executable
25.4
Defendant to pay the costs of the application on an attorney and
client scale, such costs to be taxed.
N
P Mngqibisa-Thusi
Judge
of the North Gauteng High Court
Appearance:
For
the plaintiff: Adv S Maritz
Instructed
by: Tim Du Toit & Co Inc.
For
the Defendant: Adv N Breytenbach
Instructed
by: FJ Jordaan Inc.