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[2010] ZAFSHC 162
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Absa Bank Ltd v Tlale No and Others (3471/2007) [2010] ZAFSHC 162 (11 November 2010)
FREE STATE HIGH
COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Case No.: 3471/2007
In the matter between:-
ABSA BANK LIMITED
….............................................................
Plaintiff
and
MRS PHUTI JOYCE
TLALE N.O.
…................................
First
Defendant
MRS PHUTI JOYCE
TLALE
…...................................
Second
Defendant
MOMENTUM GROUP
LIMITED
….........................................
Third
Party
_____________________________________________________
HEARD ON:
15 OCTOBER 2010
_____________________________________________________
JUDGMENT BY:
VAN DER MERWE, J
_____________________________________________________
DELIVERED ON:
11 NOVEMBER 2010
_____________________________________________________
[1] As is explained
below, this judgment deals with both an exception to a third party
notice and a subsequent application to amend
the third party notice.
[2] The plaintiff sued
the second defendant and her late husband, Mr. M.M. Tlale (“the
deceased”) to whom she was married
in community of property,
for repayment of a loan made by the plaintiff to the deceased and the
second defendant and secured by
a first mortgage bond over fixed
property owned by the common estate. The plaintiff also prays for an
order declaring the said
fixed property executable. After the death
of the deceased, the second defendant in her capacity as duly
appointed representative
of the estate of the deceased, was
substituted as the first defendant by order of this court.
[3] In the second
defendant’s plea to the plaintiff’s claim, she states
that during 1996 the deceased entered into a
life insurance agreement
(“the policy”) with the legal predecessor of the third
party. In terms of the policy, the
lives of the deceased and the
second defendant were assured. The second defendant further states
that the policy was procured especially
with the intention that the
aforesaid debt owed to the plaintiff would be extinguished in the
event of the death of either the
deceased or the second defendant.
The second defendant further pleads that on or about 9 July 1997 the
policy was ceded to the
plaintiff. It can be gathered from the
context that the proceeds of the policy was ceded to the plaintiff
in
securitatem debiti
. The plea further proceeds by stating that
after the death of the deceased the plaintiff in fact claimed the
proceeds of the policy
from the third party and received payment
thereof. In the premises it is pleaded that the debt owed by the
deceased and the second
defendant to the plaintiff was extinguished
when payment of the proceeds of the policy was made by the third
party to the plaintiff.
[4] In the third party
notice issued by the defendants, the aforesaid allegations contained
in the plea were repeated. However,
in the third party notice a claim
is instituted by the defendants against the third party on the basis
that payment of the proceeds
of the policy to the plaintiff did not
take place. The third party excepted to the third party notice.
Subsequently the defendants
filed a notice of amendment of the third
party notice, to which the third party lodged a notice of objection
on the basis that
the notice of amendment does not cure the defects
in the third party notice mentioned in the exception to the third
party notice.
In the result the defendants also filed an application
for leave to amend in accordance with the notice of amendment.
[5] The defendants insist
that the exception to the third party notice should not succeed and
that the application for leave to
amend was filed merely
ex
abundanti cautela
. The third party agrees
that the proposed amendment does not change the substance of the
claim instituted in terms of the third
party notice and contends
therefore that the exception must succeed and that the application
for leave to amend must be refused.
In the circumstances the parties
before me by agreement requested that both the exception to the third
party and the application
for leave to amend be adjudicated upon
simultaneously. As this approach appeared to me to be both practical
and cost effective,
I acceded to this request.
[6] In the circumstances
it is convenient to consider the third party notice as it is proposed
to be amended. (The proposed amendments
thereof are set out in
italics.)
“
7. In the
event where it is held that:
the plaintiff lodged a claim,
the third party did not meet the
claim, and
the defendants are liable to the
plaintiff as claimed by it, then the defendants claim that:
7.3.1 such failure was unlawful as
there was no legal basis for the third party’s failure to meet
the plaintiff’s claim,
7.3.2 the third party should have
foreseen that:
7.3.2.1 the policy had been ceded
to the plaintiff in order to secure a debt that was owed by the
defendants to a bank, being
the plaintiff;
7.3.2.2 its failure to meet the
claim submitted by the plaintiff would result in harm to the second
defendant and the deceased in
that their joint indebtedness to the
plaintiff would probably remain unpaid;
7.2.2.3 the third party should have
foreseen that should the debt to the plaintiff, a bank, remain
unpaid, the defendants would
be liable to the plaintiff for any
interest, bank charges, and other charges that may be raised in
accordance with the agreement
between the defendants and the
plaintiff.
7.3.3 The third party owed the
second defendant and the deceased, who is now represented by the
first defendant, a duty of care
not to do anything that would cause
their account with the plaintiff to remain unpaid and thereby expose
them to any additional
charges that the plaintiff might be lawfully
entitled to raise against the defendants’ account as a result
of their account
remaining unpaid.
7.3.4 the third party failed to take
reasonable steps to prevent
the
harm
referred to in
paragraph 7.3.2.1 to 7.3.2.3 above
to the defendants, and
7.3.5 as a result of the third party’s
wrongful
conduct aforesaid, the defendants suffered harm in
that their account with the plaintiff fell in arrears which gave rise
to their
indebtedness as claimed by the plaintiff, alternatively, as
might be determined by a Court of law
on the date of judgment
.
8. In the premises, the third party is
liable to pay to the plaintiff, alternatively, the defendants any
amount that is required
in law to extinguish the defendant’s
indebtedness to the plaintiff.
9. The amount payable in terms of
the insurance policy as at the date of the deceased’s death and
the amount that was claimed
by the plaintiff from the third party,
and the balance of the bond account as at the date of the death of
the deceased are known
to the third party and the (plaintiff), but
are not known to the defendants.
10.
WHEREFORE
the
defendants pray for judgment against the third party in the following
terms:
(a) the third party is ordered to
satisfy the judgment entered against the defendants in favour of the
plaintiff.
(b) the third party is ordered to
pay the defendants a sum of money that would have represented the
balance of the proceeds of the
insurance policy that was ceded by the
deceased to the plaintiff, had the third party met the plaintiff’s
claim within one
month after the plaintiff lodged the claim against
the third party.
(c) Interest on the amount arrived
at in terms of prayer (b) at the rate of 15,5% per annum from a date
commencing 30 days after
the date when the plaintiff lodged its claim
against the third party to date of payment.
(d) Costs.
(e) Further and alternative
relief.
”
[7] From the above
appears that the cause of action of the defendants against the third
party that is put forward in the third party
notice, is a delict.
This was repeatedly confirmed during argument by counsel for the
defendants. It appears to be alleged that
by failing to pay the
proceeds of the policy to the plaintiff, the third party negligently
failed to comply with a legal duty to
take reasonable steps to
prevent harm to the defendants.
[8] It appears therefore
that the claim of the defendants against the third party is based on
a failure by the third party to comply
with a valid and enforceable
obligation in terms of a life insurance contract and session
in
securitatem debiti
. Whether a delictual claim is available in
such circumstances is not necessary for me to decide, as counsel for
the third party
confirmed that that is not the exception taken. The
exception does raise the question whether on the allegations of the
defendants
the relief claimed can be granted in law.
[9] The alleged harm
suffered can only be regarded as patrimonial loss or pure economic
loss. The appropriate delictual remedy is
therefore the
actio
legis
Acquiliae
. Apart from an interdict in an appropriate
case, the only remedy in an
acquilian
action is a claim for
damages. The relief claimed by the defendants is however quite
different. Firstly the relief claimed is that
the third party be
ordered to pay to the plaintiff what is owed to the plaintiff by the
defendants in terms of the judgment against
the defendants in favour
of the plaintiff, apparently irrespective of what the proceeds of the
policy was or would have been. The
defendants therefore in the first
place effectively claim an indemnification which, as counsel for the
third party pointed out,
is the converse of a claim for damages.
Secondly, although this is not very clear, it is claimed in addition
that the third party
be ordered to pay to the defendants an amount
representing any balance of the proceeds of the policy that would
have remained had
the debt been paid timeously from the proceeds of
the policy. There is no allegation however that such balance would in
fact have
remained and therefor no allegation that damages were
suffered.
[10] The relief claimed
is not payment of damages and cannot in law be claimed in delict in
the circumstances. On this ground the
exception must succeed and the
application for leave to amend be dismissed. Costs must follow the
result. The parties before me
are
ad idem
that leave be
granted to the defendants to amend the third party notice, if so
advised.
[11] In the result the
following orders are made:
1. The exception against
the third party notice is upheld.
2. The third party notice
is struck out.
3. The application for
leave to amend is dismissed.
4. The defendants are
granted leave to amend the third party notice within ten days of date
of this judgment.
5. The defendants are
ordered to pay the costs of the exception and the notice of amendment
and application for leave to amend the
third party notice.
________________________
C.H.G. VAN DER MERWE,
J
On behalf of the third
party: Adv. S.J. Reinders
With him:
Rossouws Attorneys
BLOEMFONTEIN
On behalf of the
defendants: Adv. F.R. Memani
Instructed by:
Bosiu Attorneys
BLOEMFONTEIN
/sp