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2012
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[2012] ZAECELLC 17
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Standard Bank of South Africa Ltd v Nompozolo (EL 1/12, ECD 301/2012) [2012] ZAECELLC 17 (26 June 2012)
IN THE HIGH COURT OF SOUTH AFRICA
(EAST LONDON CIRCUIT LOCAL
DIVISION)
CASE NO.: EL 1/12
ECD 301/2012
DATE: 26 JUNE 2012
In the matter between:
STANDARD BANK OF S A LIMITED
.................................................................
Plaintiff
vs
L B NOMPOZOLO
...........................................................................................
Defendant
EX TEMPORE JUDGMENT
EBRAHIM ADJP:
This is an application for summary
judgment in which the plaintiff seeks judgment against the defendant
in the sum of R204 384.94
plus interest at the rate of 8% per annum
calculated and compounded monthly together with costs on the scale
as between attorney
and client. The application is opposed by the
defendant. I need to mention at the outset that the defendant has
appeared personally
to oppose and argue his opposition to the
application.
The opposing affidavit filed by the
defendant indicates that he is opposing summary judgment on various
grounds. Some of these
are procedural in nature while the others
raise certain issues of law. First, the defendant contends that he
was previously married
in community of property on the 16
th
of August 1996 to Nikiwe Nomapehlu Hongo. In the opposing affidavit
the Defendant also refers to the fact that she is his ex wife
but does not disclose on what date they were divorced. From the bar
the defendant assured me that he and his ex wife were
indeed
divorced. The defendant also indicates that he purchased the
property at a time that he had not yet married his ex-wife
and that
the bond was registered on the 28
th
August 1996. In his
submissions from the bar he alluded to the fact that the
registration of the bond had taken place after he
and his ex wife
were married. That does not appear from the opposing affidavit. The
gist of his argument insofar as this
opposition is concerned is that
there has been a non-joinder of Nikiwe Nomphelo Hongo. The defendant
has contended that since
the property formed part of their joint
estate during the period that they were married she should have been
cited as a co defendant
in the action brought by the plaintiff.
In his view the non-joinder, in this instance, was fatal to the
application for summary
judgment.
I have some difficulty in
comprehending why the non joinder in this instance should be
fatal to the application for summary
judgment. What is evident is,
if the plaintiff has elected to proceed against one of a number of
debtors without joining them
all in the action, the plaintiff runs
the risk that should it be unsuccessful against the particular
defendant, whom it has brought
to Court, it may then be precluded
from obtaining appropriate relief against the remaining debtors. I
am not sure on what basis,
in this particular instance, the
defendant contends that such non-joinder is fatal. He says that in
his view it is fatal since
if the property were to be sold in
execution the non-joinder of his ex-wife would prejudice her in that
she would then quite
clearly be placed in a position where part of
her assets were being liquidated without her having been joined in
this particular
action. I express no final view in this regard, but
it seems to me that were such a situation to arise his ex-wife would
clearly
have an action against the plaintiff for any prejudice that
she may have suffered in this regard. As I have said previously, I
cannot see in this instance why such non-joinder would be fatal and
I do not find in favour of the defendant insofar as this
issue is
concerned.
A further point raised by the
defendant is that the application for summary judgment served on him
did not have annexed an affidavit
as required in terms of Rule 32 of
the Rules of Court. I note in this regard that the return of
service, and I should mention
that service was effected by the
Sheriff of the Court, reflects that it was served on a certain ‘
Ms
Z Sikweza, partner, ostensibly a responsible person and not less
than 16 years of age and in control of and at the place of
residence
of Lindelwa Brian Nompozolo, Defendant/Respondent
’. The
return of service further states that a copy of the original was
exhibited and a copy handed to the person after
explaining the
nature and exigency of the said process. It is clear from the return
of service that what was served on the particular
individual were
the summary judgment and annexures and the affidavit in support of
the application for summary judgment by James
Anthony McKenna. The
defendant’s claim that the affidavit was not annexed rests
purely on his disputing this. In my view
there is no reason why the
defendant could not have filed an affidavit by Ms Z Sikweza to
indicate which documents had been served
on her and that these
documents did not include an affidavit in support of the application
for summary judgment by James Anthony
McKenna. I do not think that
it is sufficient for the defendant merely to assert or to deny that
something has taken place without
providing the Court with something
more when such facts or evidence is available to satisfy the Court
that,
prima facie
, the issue being raised is one which casts
doubt on the evidence or the facts placed before the Court in
support of the plaintiff’s
case. I have no reason to doubt
that the return of service submitted by the Sheriff of the Court is
untruthful or that the Sheriff
has failed to serve documents which
he says he has served. There is no indication why an affidavit has
not been filed by Ms Sikweza
in elucidation of the contention that
such an affidavit did not form part of the documents. The originals
filed with the Court
indicate that such an affidavit indeed exists
and in the circumstances I accept that the affidavit was served on
the defendant
and this objection is not upheld.
The defendant has also raised the
fact that the summons was served at another address. I am not sure
what the relevance of this
is, except that he indicates that it is
not his
domicilium citandi et executandi
. But, he does not
dispute, of course, that the summary judgment was served at the
correct address. If the suggestion is that
service of the summons at
an incorrect address nullifies these proceedings, that is not an
issue that has been pertinently raised
by the defendant and I see no
reason why I should determine that aspect as in my view it is not
relevant to the question of determining
whether summary judgment
should be granted or not.
Finally, the defendant has asserted
that he is not indebted to the Plaintiff in the sum of R204 384.94,
but admits his indebtedness
for R178 714.24. The defendant has made
great play of the fact that the certificate of balance furnished by
the plaintiff and
dated 15
th
November 2011 differs from a
letter written by the attorneys acting for the plaintiff in which
they indicate that the outstanding
balance is R201 680.57. This
letter is dated the 16
th
November 2011, a day later than
the certificate of balance. The defendant contends that the
difference in these amounts means
that the plaintiff is not entitled
to obtain summary judgment. At the same time the defendant has
indicated that the letter sent
by the attorneys was not evidence.
This was in response to a question from the Court that the letter
disclosed that he was in
arrears to the extent of R24 609.70. I
regret the defendant cannot have his cake and eat it. If he disputes
the letter is evidence
and contends that the Court should not accept
what is stated in it, I see no reason why the certificate of balance
is then brought
into doubt. It surely is acceptable to the Court as
it is provided for in the bond agreement.
The defendant has also asserted that
the summons does not disclose that he is in arrear, or more
specifically that it does not
indicate on what day or date he fell
into arrear with the payments. What is interesting about this point
is that the defendant
has not stated specifically or even by
implication that he is not in arrear with the payments on his bond.
Indeed when pressed
on this the defendant could merely say that the
plaintiff was required to state on what date he had fallen in
arrears with the
payment of his bond and that in the absence thereof
its claim for summary judgment should not be upheld.
I am not persuaded by this argument.
In my view, the defendant has stated in unequivocal terms that he is
indebted to the plaintiff
in the sum of R178 714.24. That said, it
means that the plaintiff on the basis of this admission would be
entitled to summary
judgment for that amount.
Before pronouncing finally on that, I
need to say something in general terms insofar as summary judgment
and opposing affidavits
are concerned. Where a defendant seeks to
oppose summary judgment the defendant may do so either by furnishing
security to the
plaintiff to the satisfaction of the Registrar for
any judgment including costs or satisfy the Court by way of an
affidavit,
or in certain instances, with the leave of the Court, by
oral evidence, that he has a
bona fide
defence to the action.
The defendant is required in asserting that he has a
bona fide
defence to fully disclose the nature and grounds of the defence and
the material facts relied upon therefor. This is certainly
lacking
in the affidavit filed by the defendant. When it is stripped of the
procedural objections that were raised in respect
of the issues that
I have mentioned, and when one addresses the question as to what the
defence of the defendant is to the claim,
the affidavit reveals that
no such defence has in fact been disclosed. It is not enough for a
defendant to come along and merely
say I do not owe the amount. That
is clearly insufficient and does not comply with the Rules.
In
Standard Bank of SA Ltd v
Friedman
1999 (2) SA
456
at 461E-J the Court said the following
:
'A
defendant confronted with an application for summary judgment can
elect to give security to the plaintiff to the satisfaction
of the
Registrar of any judgment including costs that may be given or
satisfy the Court by affidavit that he has a
bona fide
defence
to the action. The affidavit or evidence must disclose fully the
nature and grounds of the defence and the material facts
relied upon
for it (Rule 32(3)
(a)
and
(b)
of the Uniform Rules of
Court).
In
this matter the defendant has elected to resist the summary judgment
application by filing an opposing affidavit as envisaged
in Rule
32(3)
(b)
.
The
very least that is required of the defendant is to set out in her
affidavit her defence and the material facts upon which she
relies
with sufficient particularity and completeness to enable the Court to
decide whether a
bona fide
defence to the claim has been
established.
In
Maharaj vs Barclays National Bank Ltd
1976 (1) SA 418
(A) at
426B-C Corbett JA, as he then was, says:
“
All
that a Court enquires into is:
(a)
whether
the defendant has “fully” disclosed the nature and
grounds of his defence and the material facts upon which
it is
founded, and
(b)
whether
on the facts so disclosed the defendant appears to have, as to either
the whole or part of the claim, a defence which is
both
bona
fide
and
good in law. If satisfied on these matters the Court must refuse
summary judgment either wholly or in part, as the case may
be.
”
It
therefore follows from the above that where the defendant has not
fully disclosed the nature and grounds of his defence and the
material facts upon which it is founded, to an extent where the Court
is not able to determine on the facts disclosed that the
defendant
has a
bona fide
defence which is good in law,
then the Court should grant summary judgment.
'
Of further relevance is what was said
in
Breitenbach vs Fiat S A (Edms) Bpk
1976 (2) (TPD) 226
at 229E-H. In that case the Court was quoting from a judgment of
Miller J in
Shepstone vs Shepstone
1974 (2) SA 462
(N), which
reads as follows:
'I
quote the following passages from the judgment of Miller J, in that
case, at p467E-H:
“
The
Court will not be disposed to grant summary judgment where, giving
due consideration to the information before it, it is not
persuaded
that the Plaintiff has an unanswerable case
.”
That
is the first quotation and the second is:
“
......
a defendant may successfully resist summary judgment where his
affidavit shows that there is a reasonable possibility that
the
defence he advances may succeed on trial.”
The
discretion under sub-rule (5) should not be exercised against the
plaintiff on the basis of mere conjecture or speculation.
It should
be exercised on the basis of material before the Court. We were
referred by counsel to a
dictum
by Erasmus, J, in
Jacobsen
van den Berg SA (Pty) Ltd vs Triton Yachting Supplies
1974 (2) SA
584
(O) at p. 589. The learned judge said this:
“
Summary
judgment proceedings, however stringent, in a sense constitute a call
for honesty, and a discretion given to a Court in
terms of the Rule
to give leave to a defendant to defend, although such defendant has
not complied with Rule 32(3)
(b)
should
only be exercised when the Court feels an injustice would be done if
it does not exercise its discretion.
”
I
would respectfully question the appropriateness of the phrase “
would
be done” in that passage.
It seems to me that if, on the material before it, the Court sees a
reasonable possibility that
an injustice
may
be done if summary judgment is
granted, that is a sufficient basis on which the exercise its
discretion in favour of the Defendant.
'
On what has been placed before me I
am not persuaded that an injustice would be done should summary
judgment be granted. I am
also not persuaded that the defendant has
been open and frank with the Court and disclosed in any manner
whatsoever what his
defence is to the claim of the plaintiff.
In the circumstances I am disposed to
exercising my discretion to grant summary judgment in favour of the
plaintiff and summary
judgment is granted in the following terms:
There is summary judgment against the
defendant for:
Payment of the sum of R178 714.24;
Payment of interest on the capital
sum of R178 714.24 at the rate of 8% per annum calculated and
compounded monthly in arrears
from the 15
th
November 2011
to date of payment, both days inclusive;
Costs of the summary judgment
application;
An order declaring the hypothecated
property referred to below to be executable for the said sums as
contemplated by the provisions
of Section 26(3) of the Constitution
of the Republic of South Africa, Act 108 of 1996, the facts relied
upon by the Plaintiff
appears above, entitling the Defendant to the
order sought namely:
Portion 25 of the farm Cove Ridge
Estate No. 965, Division of East London, Province of the Eastern
Cape; In extent 8,5653 hectares,
and which property is held by
Defendant in terms of Deed of Transfer No. T4541/1996; Subject to the
conditions therein contained
and especially to the reservation of
rights to minerals, together with any buildings or other improvements
thereon.
Defendant is granted leave to defend
the balance of plaintiff’s claim in the sum of R25 670.70
together with interest thereon.
-------------------------------------
JUDGE Y EBRAHIM
ACTING DEPUTY JUDGE PRESIDENT,
BHISHO HIGH COURT