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[2024] ZAKZPHC 70
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ABSA Home Loans Fuarantee Company (RF) Proprietary Limited and Another v Govender and Others (4370/2022P) [2024] ZAKZPHC 70 (2 August 2024)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
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SAFLII
Policy
IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
Case
No: 4370/2022P
In
the matter between:
ABSA
HOME LOANS FUARANTEE COMPANY (RF)
First Applicant
PROPRIETARY
LIMITED
ABSA
BANK LIMITED
Second Applicant
and
RAGUNATHAN
ARUNASELEN GOVENDER
(In
his capacity as Trustee of the STANLEY AND
GONUM
FAMILY TRUST: IT NO.2125/2004)
First Respondent
GONASAGRIEE
GOVENDER N.O
(In
his capacity as Trustee of the STANLEY AND
GONUM
FAMILY TRUST: IT NO.2125/2004)
Second
Respondent
JAGATHAMBAL
PILLAY N.O
(In
his capacity as Trustee of the STANLEY AND
GONUM
FAMILY TRUST: IT NO.2125/2004)
Third Respondent
RAGUNATHAN
ARUNASELEN GOVENDER
Fifth Respondent
(ID
NO: 5[...])
GONASAGRIEE
GOVENDER
(ID
NO: 6[...])
ORDER
1.
Judgment is hereby granted in favour of the first applicant against
first, second and third
respondents, alternatively, judgment is
hereby granted in favour of the second applicant against the first,
second, third, fourth
and fifth respondents, jointly and severally,
the one paying the other to be absolved, for:
a.
Payment of the sum of R4 621 004.28 (limited to the sum of R4 275
000.00 in respect of the
fourth and fifth respondents);
b.
Interest on the sum of R4 621 004.28 calculated at 7.50% per annum,
calculated and capitalised
monthly in arrears from 15 March 2022 to
date of payment, both days included.
c.
Cost of suit on the attorney and client scale.
2.
In favour of first applicant, the immovable property more fully
described as:
A
Unit consisting of:'
(a)
Section number 804 shown and more fully described on sectional title
plan SS 102/2010 in the Scheme
known as Crystal Towers in respect of
the land and building or buildings situated at Montague Gardens in
the City of Cape town,
of which section the floor area according to
the said sectional plan is 122 square metres in extent; and
(b)
An undivided share in and to the common property in the scheme
apportioned to the said section
in accordance with the participation
quota as endorsed on the said sectional plan
Held
by Deed of Transfer ST 1354/2018,
Subject
to such conditions as set out in the aforesaid title deed
And
more especially subject to the restriction against alienation without
the written consent of the Century City Property Owners
Association
NPC, registration No. 1997/001905/08 and subject to the restriction
against transfer of property without the written
consent of the
Crystal Towers Property Owners' Association (the property) is hereby
declared specially executable.
JUDGMENT
Delivered:
Mngadi
J
[1]
The two applicants alternatively seeks judgment against 1st, 2nd,
3rd, 4th and fifth respondents jointly and several one
paying the
other to be absolved for
(a)
Payment of R4621 004.28 - limited to R4275 000.00 in respect of the
4th ad 5
th
respondents, plus interest and costs.
(b)
Declaration as especially executable an immovable property unit
consisting of a section and an
undivided shared held under deed of
transfer ST 1354/2018 situated in the City of Cape town.
[2]
The first applicant is Absa Home Loans Guarantee Company (Pty) Ltd a
company incorporated and
registered in accordance with the law. The
second applicant is Absa Bank Limited a company and a bank registered
in terms of the
law.
[3]
The first respondent is Ragunathan Arunaselen Govender N.O, the
second respondent is Gonasagriee
Govender N.O and the third
respondent is Jagathambal Pillay N.O. These three (3) respondents are
cited in their capacities as trustees
of Stanley and Gonum Family
Trust (IT2124/2004). (the Trust). The 4
th
respondent is
Ragunathan Arunaselen Govender an adult businessman. The fifth
respondent is Gonasagriee Govender an adult person.
[4]
The basis of the claim is as set out in the applicants founding
affidavit with annexures is summarised
in the 'common cause facts' in
the applicants' heads of argument, namely;
1.
On 30 November 2017 the second applicant and the Trust concluded a
written mortgage loan
agreement (mortgage loan agreement);
2.
By way of and in terms of the mortgage loan agreement, the Trust
agreed to provide to the
second applicant a written indemnity in
terms of which the Trust indemnified the first applicant against any
claim made by the
second applicant under and by virtue of a guarantee
provided by the first applicant to the second applicant in regard to
all amounts
due by the Trust to the second applicant.
3.
In pursuance of and as security for the monies that were loaned and
advanced by the second
applicant to the Trust and by way of and in
terms of the mortgage loan agreement, the Trust passed a covering
sectional indemnity
bond in favour of the first applicant.
4.
In terms of the provisions of the written mortgage loan agreement,
read together with the
indemnity and the sectional indemnity bond, in
the event of the Trust acting in breach of its obligations, namely;
by inter alia
failing to make payment of the requisite monthly
instalments, then and in that event the applicants would be entitled
to inter
alia claim repayment of the full outstanding balance and
secure an order declaring the mortgaged property specially
executable.
5.
The Trust acted in breach of his obligations in terms of the loan
agreement by failing to
pay the requisite monthly instalments.
6.
Notwithstanding the applicants delivering default notices to the
Trust requesting it to remedy
its breach of inter alia the mortgage
loan agreement, the Trust failed to remedy its breach of inter alia
the loan agreement and
mortgage bond.
7.
The fourth and fifth respondents executed the written deeds of
suretyship on behalf of the
Trust and in favour of the second
applicant in terms of which inter alia the fourth and fifth
respondents bound themselves as sureties
and co-principal debtors
jointly and severally for the Trust's indebtedness to the second
applicant in the limited amount of R4
275 000. 00 together with
interest and costs.
[5]
The respondents filed an answering affidavit resisting the claim on
various grounds. The various
grounds were belatedly before the
hearing abandoned and the place thereof in the heads of argument and
in argument the respondents'
counsel raised the following legal
points. Firstly, the first and second applicants have impermissibly
sought judgment jointly
and that seeking a judgment between first and
second applicants in a joint manner is impermissible. Secondly, it is
contended,
the first applicant has failed to plead a cause of action
and is accordingly not entitled to the relief sought under the
indemnity
and indemnity bond. First applicant's claim is founded on a
guarantee, but it has failed to plead the terms of the guarantee and
to annex a copy of the guarantee.
[6]
The relief sought in the notice of motion is set out as follows:
1.
Judgment is hereby granted in favour of the first applicant,
alternatively the second applicant
against the first, second, third,
fourth and fifth respondents, jointly and severally, the one paying
the other to be absolved,
for:
a.
Payment of the sum of R4 621 004.28 (limited to the sum of R4 275
000.00 in respect of the
fourth and fifth respondents);
b.
Interest on the sum of R4 621 004.28 calculated at 7.50% per annum,
calculated and capitalised
monthly in arrears from 15 March 2022 to
date of payment, both days included.
c.
Cost of suit on the attorney and client scale
2.
The immovable property more fully described as:
A
Unit consisting of:'
(a)
Section number 804 shown and more fully described on sectional title
plan SS 102/2010 in the Scheme
known as Crystal Towers in respect of
the land and building or buildings situated at MONTAGUE Gardens in
the CITY OF Cape Town,
of which section the floor area according to
the said sectional plan is 122 square metres in extent; and
(b)
An undivided share in and to the common property in the scheme
apportioned to the said section
in accordance with the participation
quota as endorsed on the said sectional plan
Held
by Deed of Transfer ST 1354/2018 ... is hereby declared specially
executable.
[7]
The applicants' counsel during the hearing submitted that the relief
in prayer 2 can only be granted
in favour of the first applicant in
whose favour the mortgage bond was registered. The averments in the
founding affidavits read
with annexures make it clear the fourth and
fifth respondents executed the deed of suretyship in favour of the
second applicant.
As a result, only the second applicant is entitled
to the relief against the fourth and fifth respondents. The relief
sought must
clarify that the first applicant is only entitled to the
relief against first, second and third respondents.
[8]
The respondents expanding on the first point argued point out that
throughout the founding affidavit
the applicants have specifically
sought judgment collectively (jointly) as between themselves, and
that the founding affidavit
refers to granting judgments in favour of
the applicants; that the respondents are indebted to the applicants;
the Trust is indebted
to the second applicant under the mortgage loan
agreement, and therefore to the first applicant under the indemnity ;
that the
applicants seek an order declaring the immovable property
specially executable ; and that the amounts owed by the Trust to the
applicants under the mortgage loan agreements, is secured by the
registration of an indemnity Bond. Counsel referred to Mossop J
remarks in
Absa Bank and Another v Naidoo
(2570/2021P) [2022]
ZAKZPHC 71 (15 November 2022) para 17.
Counsel
argued further that although relief in the notice of motion is in the
alternative that renders that relief to be in conflict
with or not
supported by the averments
[9]
It is trite that the relief sought is set out in the notice of motion
not in the founding affidavit.
The question is whether the averment's
made in the founding affidavit read with annexures (if any) make out
the case sought in
the relief. The argument is contrived, meritless
and unsustainable. has no substance.
[10]
In the second point, the respondents point out that the relationship
between the parties is regulated by
a package of agreements which are
interrelated. One of those agreements is the guarantee. The
respondents contend that the failure
by the applicants to allege the
full terms of the guarantee and to attach the guarantee to the
founding affidavit renders the applicants'
papers fail to disclose a
cause of action. The respondents in support of their argument refer
to
Changing Tides 17 (Pty) Ltd N.O. v Congwane
(2015/94919)[2016] ZAGPJHC 128 (30 May 2016) wherein Spilg J held
that entitlement to call up the indemnity was dependent upon
the
calling up of the guarantee and, therefore, the failure to allege
full terms of the guarantee results in a failure to disclose
cause of
action based on the indemnity.
[11]
The applicants in the founding affidavit stated that judgment was
sought against the respondents based
on the mortgage loan agreement,
the indemnity, the indemnity bond and the Deeds of Suretyship. The
applicants as part of their
averments in the founding affidavit
stated:
'Pursuant to the second applicant and the Trust concluding
the mortgage loan agreement. the Trust executing the Indemnity, the
first
applicant furnished the second applicant with a written
guarantee in terms of which, inter alia, the first applicant
guaranteed
the due and punctual payment of all sums which were then
and which may subsequently become due by the Trust to the second
applicant
pursuant to the loan agreement.'
The guarantee is
between the first and the second applicants. It is not for the
benefit of the Trust. It creates no additional
obligations on the
Trust. It becomes liable to be called up in breach by the Trust of
its obligations in terms of the other agreements.
In my view, it is
not essential to the case of the Applicants against the respondents
to plead the terms of the guarantee. The
applicants fully pleaded the
breach by the Trust and the issuing of default notices.
[12]
The Trust is liable in terms of the indemnity due to its breach of
the mortgage loan agreement which also
results in the guarantee be
liable to called up. The Trust is not faced with multiple debts. Its
failure to pay the debt exposes
it to claims under different
instruments for the same debt. The respondents on receipt of the
papers were entitled to call upon
the respondents to furnish a copy
of the guarantee, if it was essential for their defence. But were
content for the first time
in the heads of argument to raise issue of
the failure to plead full terms of the guarantee or to attach copy of
the guarantee
as defeating applicants claim based on the indemnity.
[13]
The applicants have established that they are entitled to judgment as
follows:
1.
Judgment is hereby granted in favour of the first applicant against
first, second and third
respondents, alternatively judgment is hereby
granted in favour of the second applicant against the first, second,
third, fourth
and fifth respondents, jointly and severally, the one
paying the other to be absolved, for:
a.
Payment of the sum of R4 621 004.28 (limited to the sum of R4 275
000.00 in respect of the
fourth and fifth respondents);
b.
Interest on the sum of R4 621 004.28 calculated at 7.50% per annum,
calculated and capitalised
monthly in arrears from 15 March 2022 to
date of payment, both days included.
c.
Cost of suit on the attorney and client scale.
2.
In favour of first applicant, the immovable property more fully
described as: A Unit consisting
of-'
(c)
Section number 804 shown and more fully described on sectional title
plan SS 102/2010 in the Scheme
known as Crystal Towers in respect of
the land and building or buildings situated at Montague Gardens in
the City of Cape town,
of which section the floor area according to
the said sectional plan is 122 square metres in extent; and
(d)
An undivided share in and to the common property in the scheme
apportioned to the said section
in accordance with the participation
quota as endorsed on the said sectional plan
Held
by Deed of Transfer ST 1354/2018.
Subject
to such conditions as set out in the aforesaid title deed
And
more especially subject to the restriction against alienation without
the written consent of the Century City Property Owners
Association
NPC, registration No. 1997/001905/08 and subject to the restriction
against transfer of property without the written
consent of the
Crystal Towers Property Owners' Association (the property) is hereby
declared specially executable.
Mngadi
J
APPEARANCES
Case Number:
4370/2022P
For the Plaintiff:
D Ramdhani SC
Instructed by:
MCH Attorneys Inc
3 Rydall Vale
Cresent
Rydall Vale Park
La
Lucia Ridge
C/o : Schoerie &
Sewgoolam
181 Burger Street
Pietermaritzburg
For the Defendant:
Adv CJ
Moodley
Instructed by:
Anand-Nepaul
Attorneys
9th Floor Royal
Towers
30 Dorothy Nyembe
Street
Durban
C/O
Cajee Setsubi Chetty
195 Boshoff Street
Pietermaritzburg
Heard on:
29 July 2024
Judgment delivered
on:
02 August 2024