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[2009] ZAGPPHC 112
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Firstrand Bank Limited v Ngcobo and Another (24661/09) [2009] ZAGPPHC 112 (11 September 2009)
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Case no:24661/09
IN THE HIGH COURT OF SOUTH AFRICA
(NORTH GAUTENG HIGH COURT)
In the matter between:
FIRSTRAND BANK LIMITED Plaintiff
and
THULANI CYRIL NGCOBO 1st Defendant
HLAMALANI THEMBEKILE NGCOBO 2nd Defendant
JUDGMENT
Judgment reserved: 09/09/09
Judgment handed down: 11/09/09
LEGODI J,
[1] This is an application for summary judgment in terms whereof, the
plaintiff seeks the granting of a summary judgment against
the
defendant as follows:
1. "Payment of R 1 649 273.43
2. Payment of interest on the amount of R1 649 273.43 at the agreed
rate of 11.00% per annum from 1st April 2009 to date of payment
both
days inclusive
3. An order declaring Erf 795, Summerset Extension 20 Township,
Registration Division: J R Province of Gauteng, Measuring 461 Square
metres, Held by DEED OF TRANSFER: TS 2311/05 executable
4. Costs of suit
5. Further and or alternative relief".
[2] As a background, the plaintiff has sued the defendants on the
basis of a mortgage bond registered on the 29 April 2005 in favour
of
the plaintiff for the amount of R 1 510 455.43
[3] In terms of clause 20 of the mortgage bond, any proceedings which
may be instituted by virtue hereof, and of the service of
any notice,
domicilium citandi et executandi was chosen by the Mortgagor at the
property mortgaged as the place of service.
[4] In terms of clause 21.1 any notice given by the bank, in terms of
the bond, may at the option of the plaintiff be addressed
to the
Mortgagor at the domicilium referred to in clause 20 or to the
Mortgagor's last postal address recorded with the plaintiff
and may
be served by registered post. Such notices are in terms of clause
21.2 deemed to have been received by the Mortgagor three
days after
posting.
[5] Clause 27.1 is a somewhat non variation clause and it provides
that nothing at variance with the terms hereof shall be binding
unless reduced to writing and signed by or on behalf of the Mortgagor
and the bank.
[6] The defendants having been served with the application for
summary judgment, filed an opposing affidavit unassisted by an
attorney or counsel. In a nutshell, the defence raised by the
defendants is the defectiveness of the notice in terms of section
129
of the National Credit Agreement Act. The defendants contend that,
the notice that was given in terms of section 129 was never
received
by them and secondly, that the communications and interactions with
the plaintiff has all along been by way of emails
and therefore,
notice in terms of section 129 would have been expected to be by
email.
[7] These averments by the defendants are based on the following
backgrounds:
7.1 On the 12 February 2008, the plaintiff sent an e-mail to the
first defendant in terms of which one Laura Sharp introduced herself
as the Premier Banker in the Premier Banking Section of the
plaintiff. In this e-mail, amongst others it is stated as follows:
"FNB Premier Banking offers you efficient, personalised
financial services via Premier Banking and I would like to use this
opportunity to re-iterate that I am now your 'single point of
contact' to the Bank. Should you have any queries require assistance
with any of your FNB accounts, please do not hesitate to contact me
and your requests will be expedited with the utmost efficiency
professionalism ".
7.2 On the 18 February 2009, the first defendant sent an email to the
plaintiff in which he stated as follows:
"Please be advised that my employment has been terminated
without any plausible reason and due process. As a result I have
not
been paid my January 2009 salary. The matter is currently at the CCMA
and is due for arbitration on 17 March 2009. I still
intend meeting
my contractual obligation. What is happening was not foreseen.
Over the past few week, I have received telephone calls and sms from
staff at FNB Home loans. I have indeed tried to explain my
case. I am
also prepared to meet anyone anytime at the bank to discuss my case.
Should you require any additional information please call me at [ ….
]".
7.3 On the 19 February 2009, the plaintiff responded through an email
as follows:
"We acknowledged receipt of your email. We have referred your
account to our dent remedy programme for them to try and assist
you".
7.4 Subsequent to the communication of the 19 February 2009, the
plaintiff on the 11 March 2009 caused a registered letter of demand
to be addressed to the defendants, using the address referred to in
the Bond agreement as the domicilium citandi.
7.5 On the 23 April 2009, the plaintiff issued summons against the
defendants. The summons were served on the 26 June 2009. The
defendants immediately thereafter, entered an appearance to defend.
7.6 In addition to the appearance to defend, the first defendant
emailed another letter to the plaintiff in which he protested
as
follows:
"I am really shocked to receive summons with regard to action
being instituted by you wherein you claim, inter alia, payment
of R1
649 273.43 as at 7 April 2009 and/or an order declaring our property
executed for the same amount
Most of the assertions in your summons are indeed false. Despite
several requests on my part to secure a meeting with you (save
for
one meeting with one of your officials in March 2009) to discuss my
financial situation you have failed to discuss any measure
with me
and to consider any proposal in order to rectify the challenges that
I am currently facing. I am really disappointed. However,
I intend
defending the matter up to the highest level. There was really no
need to issue summons at this stage without any discussion
and any
prior warning.
Please call me at [ …. ]should you want to discuss any further
details or meet me.
7.7 On the 8 July 2009, the plaintiff launched the present
application for summary judgment.
[8] In paragraphs 10 and 11 of the opposing affidavit, the
defendants state as follows: "10
The last official email communication from the Plaintiff was thus on
19 February 2009. No further email communication was received
by us
from the Plaintiff after that date, except by short messages services
(sms). That has been ongoing until 2 June 2009.09.
11.
The last official meeting we had with the Plaintiff represented by
RONALD of FNB HOMELOANS (27 Diagonal Street, FNB Towers, 6th
Floor,
Johannesburg) was on 3 March 2009. The Plaintiff was to set up a
further meeting, in compliance with Section 129 of the
National
Credit Act, Act NO.34 of 2005, to develop and agree on a plan to
bring all the payments under the credit agreements up
to date.
That did not happen until we received Summons on 1 June 2009".
[9] Further in paragraphs 14 and 15 of the opposing affidavit, the
defendants state as follows:
"14
This Honourable Court will be shown that the Defendants never
received the registered letters indicated in the Plaintiff's
annexure.
There has always been a tacit agreement between the
Plaintiff and the Defendants to communicate using mainly emails due
to the
notorious facts in the Republic of South Africa that both the
Post Office and the Department of Home Affairs are malfunctioning.
Important documents are always lost by these entities.
15.
We therefore submit that the Plaintiff has not duly complied with
Section 129
of the
National Credit Act, No. 34 of 2005
as certified
by SANNETTE VON MoHLMAN. We further submit that the Plaintiff in the
process of circumventing the provisions of the
said Act,
respectively: Sections; 3(b), 3(d), 3(e), 3(h) and 3(i) as well as
Section 65. There is also probability that the Plaintiff,
by not
considering in a holistic manner the whole credit agreement between
the Plaintiff and the Defendants, is avoiding falling
foul of Section
80, 83 and 85 respectively, of the said Act".
[10] Counsel for the plaintiff however, took a robust view that the
issue whether or not the defendants received the letter of
notice in
terms of section 129, is irrelevant. For as long the plaintiff in the
instant case has complied with clause 21.1 of the
bond agreement, the
defendants cannot be heard to raise as a defence that they did not
receive the notice. This submission was
made on the basis of the
unreported judgment of Wallis J in the matter of Mavimatha Munien v
BMW Financial Services SA (PTY) LTD
and Another delivered on 3 April
2009 in Kwazulu-Natal Local Division under case number 16103/08 and
the other unreported judgment
of Potterill AJ delivered on the 16
September 2008 in this division under case number case number
32712/08 in the matter Nedbank
Limited v Andre Philuppus Lucus. For
the reason that will follow, I do not find it necessary to comment on
the correctness or otherwise
of these judgments to which I was
referred. It suffices to say, the facts of the present case make it
unnecessary to deal with
the conclusions reached in the two matters
referred to in this paragraph.
[11] Reliance on these cases in my view, fails to take into account
the facts of the present case and the essence of the defence
raised.
[12] As I deal with the facts of the present case, I am mindful of
the fact that I am dealing here with an application for summary
judgment. I will therefore have regard to the fact that the first
defendant is not required to satisfy the court that his allegations
are believed by him to be true. It will be sufficient if the
defendants avers to a defence valid in law, in a manner which is not
inherently or seriously unconvincing. (See Breitenbach v Fiat SA
(Edms) Bpk 1976(2) SA 226(T), Marsh v Standard Bank of SA Ltd
2000
(4) SA 947
(W) at 954 E-F). Or to put it differently, if his
affidavit shows that there is a reasonable possibility that the
defence he advances
may succeed on trial (See Citibank NA South
African Branch v Paul No
2003 (4) SA 180(T)
at 200J-201A). The
defendants are not at this stage required to persuade the court of
the correctness of the facts stated by them
or, where the facts are
disputed that there is a preponderance of probabilities in their
favour. The court hereby considers whether
the facts alleged by the
defendants constitute a good defence in law and whether that defence
appears to be bona fide. (See Maharaj
v Borclays National Bank Ltd
1976(1) SA 418 (A) at 426).
[13] Now coming back to the facts of the present case, the email
communications appear to have been prompted by the 12 February
2008
email. Clear from the quotation referred to earlier in this regard
that this was used as a notice to the defendants regarding
the
introduction of Laura Sharp as a premier banker for the defendants.
At the risk of repeating myself, the defendants were informed
"Should
you have any queries, requires assistance with any of your FNB
accounts, please do not hesitate to contact me and
your request will
be expedited with the utmost efficiency professionalism". Even
most importantly, the defendants were informed
by email that Ms Laura
Sharp was the only "single point of contact" with the bank
for the defendants.
[14] The email of the 12 February 2008, should also be seen in the
light of the subsequent emails that flew in the face of the
parties,
and in particular between the defendants and Ms Sharp. For example,
on 30 January 2009, she emailed a letter to the first
defendant in
which she stated as follows:
"I gave placed a stop payment on your home loan debit order for
this months payment only as requested. The stop payment
will expire
on the 19/2/2009 in order for the r debit order to be processed as
normal on the 1/3/2009. Please advise if this is
in order. Please
advise if you will manually rectify the home loan payment when you do
receive your salary payment".
[15] Clear from this email that the defendants must have experienced
a problem with the loan payment and an arrangement was made
for
payment as it appears in the email. This was not communicated as
envisaged in clause 21.1 of the bond agreement quoted earlier
in this
judgment.
[16] Similarly, the defendants as indicated earlier in this judgment,
were communicating by emails with the plaintiff via Ms Sharp.
The
response to the email of the 18 February 2009 addressed to the
plaintiff is very important. In this email the plaintiff was
specifically informed of the dilemma the defendants were confronted
with. The first defendant has just lost his employment. The
response
thereto was again through an email displaying a willingness on the
part of the plaintiff to assist the defendants. The
response
contained in the email of the 19 February 2009 was quoted earlier.
[17] The 'dent remedy programme' referred to in the email of the 19
February 2009 does not seem to have reverted to the defendants
to try
and assist the defendants as promised by Ms Sharp.
[18] On the 3 March 2009, the plaintiff is alleged to have agreed to
set up a further meeting in compliance with section 129. This
was
promised in the meeting held between the defendants and the plaintiff
through Ms Sharp on the 3 March 2009.
[19] It therefore looks like at all material times hereto the
defendants wished to resolve their financial difficulties in terms
of
section 129. If all what the defendants are alleging are to be proved
correct, it would be a good defence and that can persuade
the trial
court to firstly find that, the plaintiff waived its right to invoke
clause 21.1 of the Bond agreement and the plaintiff
could be found to
have been under obligation to give notice in the manner in which the
plaintiff has been communicating with the
defendants since 12
February 2008, that is, by way of email.
[20] Clause 21.2 should also be seen in context. Firstly, whilst a
presumption is created that within 3 days of posting, the defendants
must have refused the notice, this is been challenged by the
defendants, for example, as stated in paragraph 14 of the opposing
affidavit. Paragraph 14 of the opposing affidavit was quoted earlier
in this judgment. The trial court might find that such a
presumption
has been sufficiently rebutted by credible evidence.
[21] However, as I said earlier, counsel for the plaintiff took a
somewhat robust view that whether or not the defendants received
a
notice was irrelevant. Very easy and simple to make this submission.
However, the facts of the present case do not make it so
easy.
[22] Section 129 creates certain rights for a consumer. On the other
hand it creates certain obligations on a credit provider.
Those
rights are to refer a credit agreement to a debt counsellor,
alternative dispute resolution agent, consumer court or ombudsman
with jurisdiction with the intention that the parties resolve any
dispute under the agreement or develop and agree on a plan to
bring
the payments under the agreement up to date. These rights could not
be asserted to unless a consumer is made aware of them.
A credit
provider is under obligation to bring it to the attention of a
consumer, that unless he or she exercises to assert the
rights in
terms of section 129, the credit provider would be entitled to
commence legal proceedings against consumer for defaulting.
[23] What the defendants are saying is that, had they received notice
in terms of section 129, they would have elected to exercise
their
rights in terms of section 129, like it has been their intention to
do so.
[24] It looks like what the defendants are saying, is firstly, that
they were made to believe to their prejudice that communication
or
giving of notices was by emails. Secondly, they were made to believe
that in the meeting of the 3 March 2009, the plaintiff
will set up a
further meeting in compliance with section 129. If all of this is
properly alleged and proved in evidence, it could
preclude the
plaintiff from alleging that it was entitled to give the notice in
terms of Clause 21.1.
[25] Consequently an order is hereby made as follows:
25.1 An application for summary judgment is dismissed.
25.2 The defendants are hereby granted leave to defend the action.
25.3 The costs of the application to be costs in the cause.
M F Legodi Judge of the High Court
Hack Stuppel & Ross Attorneys for the Plaintiff
2nd Floor, Standard Bank Chambers Church Square, PRETORIA TEL: 012
325 4185
The Defendants (in person)
T C & H T NGCOBO