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[2009] ZAGPPHC 118
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Firstrand Bank Limited trading inter alia as FNB Home Loans v Mostert and Another (31008/09) [2009] ZAGPPHC 118 (18 September 2009)
IN THE HIGH COURT OF
SOUTH AFRICA
(NORTH GAUTENG HIGH
COURT, PRETORIA)
CASE NO: 31008/09
In the matter between:
FIRSTRAND BANK LIMITED
Trading inter alia as FNB HOME LOANS
(formerly FIRST
NATIONAL BANK
OF SOUTHERN AFRICA
LIMITED)
.......................................................................
PLAINTIFF
and
MOSTERT: HURBERTUS BRUYN
..........................................................
FIRST
DEFENDANT
MOSTERT: LETITIA
...........................................................................
SECOND DEFENDANT
JUDGMENT
MAVUNDLA J,
[1] The plaintiff applies for summary
judgment against the defendants for payment of the amount of R1,
269.021, 84 together with
interest on this amount calculated at the
rate of 11. 65% per annum from 04 May 2009 of summons to date of
payment both days inclusive,
together with further ancillary relief.
Nothing turns on the supporting affidavit for such application and I
will therefore not
mention same.
[2] In opposing the
summary judgment application, the respondents filed their opposing
affidavit wherein they raise a point in limine
that the application
is premature in that there is a lis alibi pendens between same
parties under case number 4634/ 2008 wherein
the same relief as in
casu is claimed against the defendants.
[3] It is common cause
that the plaintiff had issued summons against the defendants under
case number 4634/ 2008 4634/ 2008 for
the same relief as sought in
casu. In the earlier case applicant brought an application for
summary judgment. The defendants in
that case filed their opposing
affidavit.
[4] The defence raised
in the opposing affidavit under case number 4634/ 2008 is that on 21
November 2007 the plaintiff duly represented
by one Paul Walker, the
professional manager of the applicant agreed telephonically with the
second defendant that the amount owing
by the defendants under bonds
numbers B19984/2006 and B215912/2006, which two bonds are registered
as security in favour of the
plaintiff for the property ERF 649 be
suspended or be held over until May 2008. It was further agreed that
the defendant would
resume paying the
arrear
instalments as from 1 June 2008. This agreement was reached on
the understanding that the defendants would during May 2008 receive
payment of an amount of R500, 000. 00 from SARS. It was further
contended in their opposing affidavit that the aforesaid summons
were
premature. Besides what I have stated herein, the defendants did not
disclose any defence with regard to the merits.
[5] In the present
application for summary judgment besides the point in limine of lis
alibi pendent, there is no other defence
raised. This opposing
affidavit was filed with registrar on 3 September 2009, after it had
been served on 2 September 2009. The
summary judgment application was
served with the registrar on 15 July 2009.
[6] On the 7 September
2009 the plaintiff's attorneys of record served a notice of
withdrawal of case number 4634/ 2008. The said
notice of withdrawal
was silent on the question of costs.
[7] It is contended on
behalf of the respondent that at the time when the application for
summary judgment was initiated, the earlier
action had not been
withdrawn and therefore there was a lis pending. It is further
contended that because the notice of withdrawal
is silent with regard
to the costs, therefore the point of lis still stands.
[8] On behalf of the
applicant, it is contended that the Court has a discretion to grant
summary judgment, notwithstanding the fact
that the notice of
withdrawal did not tender the costs. It is
further submitted that having regard to
the fact that essentially but for the point of lis pendent , the
respondent has in the previous
summary judgment admitted its
indebtedness to the applicant. It was further pointed out that once
the previous action has been
withdrawn, the respondent has no defence
on the merits. It is further submitted that the contract provides,
inter alia, per clause
16.3 that 'The Bank may relax some of the
conditions of the agreement or grant the Mortgagor an indulgence
without affecting the
validity of all the provisions of the agreement
or prejudicing the rights of the Bank in any way." It is further
submitted
that with regard to the costs the respondent is entitled to
as the result of the withdrawal, such costs, after taxation would be
miniscule and would have to be set off against the amount owed by the
defendants. It is submitted that under such circumstances,
the Court,
in the exercise of its discretion, should grant the summary judgment
against the defendants.
[9] It is trite that in
order to successfully oppose a summary judgment application, the
defendants need to satisfy the Court that
they have a bona fide
defence to the plaintiff's action by fully disclosing (a) the nature
and grounds of their defence and the
material facts upon which the
defence is premised; (b) whether the facts relied upon are a defence
against the whole or part of
the claim, vide Maharaj v Barclays
National Bank Ltd.
1
[10] The defence raised
must not be merely technical
2
and merely having the effect of delaying the claim of the applicant.
Where the defence raised, if the matter were to go on trial,
has a
good prospects of successfully defeating the claim, then the Court in
the exercise of its discretion will refuse to grant
the summary
judgment. Each and every case must be determined on its own facts.
[11] The parties were
agreed that I should have regard to the affidavit that had been filed
in the action that has since been withdrawn.
As I have already
indicated herein above, the only defence raised in that affidavit is
that there was an agreement reached with
one Paul Walker in terms of
which the payments towards the bond repayment were deferred until the
end of May 2008, and that the
arrears would be brought up to date on
1 June 2008. According to the summons in casu, that were issued on 25
May 2009, the defendants
failed to pay the monthly instalments under
the mortgage bonds thereby making the whole amount oust sanding due
and payable. Certainly
the breach of payment can only be long after
the 1 June 2008, on which latter date the defendants , according to
their version
in the previous case under case number 4634/08, would
have been the date on which the arrears would have been brought up to
date.
It stands to treason that such arrears were never brought to
date, thus causing a new breach. But besides, one of the terms of the
agreement specifically provides that any indulgence granted would not
prejudice the rights of the plaintiff.
[12] Although the
defence of lis at the time when it was raised, was good in law, but
such defence has since fallen away as the
result of the withdrawal of
action under case number 4634/08. Were the matter to go to trial,
there would be no valid defence that
can be raised by the defendants,
save for the counterclaim in respect of the costs which have not been
tendered when the aforesaid
case was withdrawn. I am aware of the
decision that says that a counterclaim which is less than the amount
claimed may be raised.
However, when the court exercise its
discretion, it must also have regard to the fact that a summary
judgment is designed to avert
causing a plaintiff who has a genuine
claim against a defendant who has no defence at all to be subjected
to an inordinate delay
as a result of an unnecessary and protracted
trial, with the concomitant expenses of trial.
[13] I am of the view
that the defendants do not have a defence to the plaintiffs case. On
their own admission, in the previous
opposing affidavit, they are
indebted to the plaintiff. I have already expressed my view, that the
alleged agreement of deference
of the payments until end of May 2008
subject to the bringing up to date of the arrears on 1 June 2008, is
no valid defence to
the plaintiff's claim. The defence of lis, were I
to refer the matter to trial would not be sustained since the
relevant lis has
been withdrawn. In conclusion, I am of the view, in
the exercise of my discretion, in the circumstances of this case, I
should
not prolong the inevitable and i should grant the summary
judgment.
[14] In the result I
make the following order:
1. That summary judgement in favour of
the plaintiff is granted against the defendants, jointly and
severally, the one paying the
other to be absolved for:
Payment of the sum of R1, 269, 021. 84
Interest on the aforesaid amount at
the rate of 12.65% per annum compounded daily and capitalised
monthly in terms of the Mortgage
Bond, from the 15th April 2009 to
3 May 2009 and at the rate of 11.65% from 4 May 2009 to date of
payment, both dates inclusive:
ERF 649,
Potchesftroom Township, Registration Division IQ, North West
Province, Measuring 2855 (Two Thousand Eight Hundred and
Fifty Five
) square meters and held under Deed of Transfer T80503/ 2005, is
declared executable for the said sum.
Costs of suit on
the scale as between attorney and client.
NM MAVUNDLA
JUDGE OF THE COURT
DATE OF HEARING :
10/09/2009
DATE OF JUDGEMENT : 18 /09/2009
PLAINTIFF'S ATT : VAN HULSTEYNS
ATTORNEYS
PLAINTIFF'S ADV : L MEINTJES
DEFENDANT'S ATT : E A L
MULLER
ATTORNEYS
DEFENDANT'S ADV : P A VENTER
1
1976
(1) SA 418
where at 426 A-C.
2
vide
Lohrman
v
Vall
Onwikkelingsmaatskappy
(EDM)
1979
(3) SA 391
(T) at 393H- 396A;.
Trans-African
Insurance C O. Ltd v Maluleka
1956
(2) SA 273
(A.D.) at 278 F-G:
"No
doubt parties and their legal advisers should not be encouraged to
become slack in the observance of the Rules, which
are an important
element in the machinery for the administration of justice. But on
the other had technical objections to less
than perfect procedural
steps should not be permitted, in the absence of prejudice, to
interfere with the expeditious and, if
possible, inexpensive
decision of cases on their real merits." Vide
also
Standard
Bank of South Africa Ltd v Roestot
2004
(2)
SA 492
WLD at 496 G - H.