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[2013] ZAWCHC 70
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ABSA Bank Ltd v Dumisani Hans Inc and Another (2397/2013) [2013] ZAWCHC 70 (10 May 2013)
Republic of South Africa
IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE HIGH COURT, CAPE
TOWN)
Case no: 2397/2013
In the matter between:
ABSA BANK LIMITED
..........................................................................................
Plaintiff
v
DUMISANI HANS
INCORPORATED
......................................................
First
Defendant
DUMISANI HANS
................................................................................
Second
Defendant
Court
:
Judge J I Cloete
Heard
:2
May 2013
Delivered
:10May 2013
JUDGMENT
CLOETE J:
This is an application
for summary judgment brought by the plaintiff against the defendants
jointly and severally for: (a) payment
of the sum of R1 350 336.02
together with interest as pleaded in the summons; (b) an order
declaring an immovable property,
being erf 7637, Bellville (‘
the
property’
) specially executable; and (c) costs on the
scale as between attorney and client.
The first defendant is
sued as the principal debtor and the second defendant is sued in his
capacity as surety and co-principal
debtor with the first defendant.
The defendants do not dispute that the provisions of the
National
Credit Act 34 of 2005
do not apply; nor do they contend that the
property constitutes a “home” or “primary
residence” for purposes
of s 26(3) of the Constitution or rule
46 of the uniform rules of court.
The plaintiff relies
upon a written mortgage loan agreement which it alleges was
concluded during 2006 with the first defendant
and pursuant to which
it lent and advanced to the first defendant a capital sum of R1.2
million under mortgage loan account no:
8064833148. In its
particulars of claim the plaintiff pleaded that the mortgage loan
agreement was destroyed in a fire on 28 August
2009 but that it
had obtained an unsigned copy thereof which is annexed to the
summons. The first prayer in the particulars of
claim is for
‘
condonation of plaintiff’s failure to comply with
rule 18(6) in respect of the mortgage loan agreement’.
The plaintiff further
pleaded that in terms of the mortgage loan agreement the
aforementioned loan was secured by first mortgage
bond number
B98393/2006 registered over the property ‘
during or about
2006 by Philip Louis van der Merwe,
the duly authorised agent
of the first defendant’
in favour of the plaintiff for a
capital sum of R1.5 million together with an additional sum of
R300 000. A copy of the
mortgage bond is annexed to the
summons.
The plaintiff also
separatelypleaded all of the material terms of both the mortgage
loan agreement and mortgage bond; the first
defendant’s breach
of the mortgage loan agreement; that the defendants were eight
months in arrears with their monthly
instalments of R9377.47 and
that the arrears totalled R73 484.16; attached a copy of the
deed of suretyship relied upon
in respect of the second defendant;
and similarly pleaded all of the material terms of the deed of
suretyship. Finally, it annexed
a copy of the certificate of balance
referred to in both the mortgage bond and deed of suretyship
reflecting the amounts owing.
It was agreed in these documents that
such certificate would constitute sufficient proof of the amounts
owing for purposes of
judgment.
The affidavit filed in
support of the application for summary judgment was deposed to by
Sabashnee Naidoo who is a manager of
the plaintiff in its Home Loans
Recoveries Division. She stated that she was duly authorised to make
the affidavit on behalf
of the plaintiff and that she has knowledge
of the facts therein either personally or as a result of her access
to all relevant
documents and computer data relating to the cause of
action against the defendants. Ms Naidoo swore positively to the
facts set
out in the plaintiff’s summons; verified both the
cause of action and prayers contained therein; and stated that in
her
opinion the defendants have no
bona fide
defence to the
action and have delivered a notice of intention to defend solely for
the purpose of delay.
Prior to the plaintiff
delivering its application for summary judgment the defendants
delivered a notice of exception to the plaintiff’s
particulars
of claim on the grounds that they are vague and embarrassing and
lack averments necessary to sustain a cause of action.
The specific
grounds advanced were the following, namely that: (a) the plaintiff
had not pleaded who had represented the first
defendant in
concluding the mortgage loan agreement; (b) the plaintiff, although
it alleged that it was represented by a duly
authorised employee
when concluding the mortgage loan agreement, had failed to identify
the employee concerned; and (c) the unsigned
copy of the mortgage
loan agreement annexed to the plaintiff’s summons ‘
does
not give any information about the representation of the parties on
signature nor any confirmation that it is a true and
unaltered copy
of the original’.
The second defendant
also delivered a special plea on the same date that the defendants
delivered their opposing affidavit in
the summary judgment
application. The allegations in the notice of exception and special
plea (which was delivered despite the
second defendant nonetheless
persisting with the exception) were incorporated by reference in the
opposing affidavit. The special
plea is to the effect that the
plaintiff’s claim against the second defendant is
unconstitutional in that it ‘
constitutes an unfair
discrimination’
against the second defendant ‘
who
is sued alone whereas it was a special instruction applicable to the
Mortgage Loan Account No 8064833148 referred to in paragraph
4.1 of
the
[plaintiff’s]
Particulars of Claim that unlimited
surety shall be provided by both
D HANS
and
P
L VAN DER MERWE
’ and – significantly –
that Van der Merwe ‘
signed the suretyship Agreement as per
the said instruction. In this regard I enclose herewith a copy of
the instruction to Lodge
Bond reflecting the same marked “A”’.
Annexure “A”
to the special plea is a written instruction furnished by the
plaintiff to the first defendant (an attorneys
practice) dated
21 June 2006. The mortgage loan account number referred to in
the instruction is identical to that relied
upon by the plaintiff in
its particulars of claim; the mortgagor is the first defendant; the
amounts reflected therein are identical
to those referred to by the
plaintiff; the property over which the mortgage bond was to be
registered is identical to the property
referred to in the
plaintiff’s particulars of claim; the transferring attorney is
identified as the second defendant; and
the sureties and
co-principal debtors for the loan are identified as the second
defendant and Mr Van der Merwe.
Apart from the
incorporation by referenceof the allegations contained in the notice
of exception and special plea the only defence
raised by the
defendants in their opposing affidavit (which was deposed to by the
second defendant in his personal capacity and
on behalf of the first
defendant) is the following:
‘
The
[defendants]
dispute
the fact that it
[sic]
ever
concluded or authorised any person to sign on its behalf a document
that resembles the unsigned Mortgage Loan Agreement marked
“A”
[annexed to the plaintiff’s particulars of claim]
upon
which the
[plaintiff]
is
basing its claim and accordingly wants the
[plaintiff]
to
prove that the First Defendant concluded the said Mortgage Loan
Agreement.’
In
Breitenbach v Fiat
SA (Edms) Bpk
1976 (2) SA 226
(TPD) Colman J on behalf of a full
bench set out what is required of a defendant when he elects to file
an opposing affidavit
in order to resist a claim for summary
judgment. The requirements may be summarised as follows: (a) the
defendant must set out
in his affidavit facts which, if proved at
the trial, will constitute an answer to the plaintiff’s claim.
If he does not
do so he can hardly satisfy the court that he has a
defence; (b) the defence must be
bona fide
in the sense that
it will suffice if the defendant swears to a defence, valid in law,
in a manner which is not inherently and
seriously unconvincing; (c)
the statement of material facts relied upon by the defendant must be
sufficiently full to persuade
the court that what the defendant has
alleged, if it is proved at the trial, will constitute a defence to
the plaintiff’s
claim. If the defence is averred in a manner
which appears in all the circumstances to be needlessly bald, vague
or sketchy,
that will constitute material for the court to consider
in relation to the requirement of
bona fides
; and (d) even if
the defendant’s affidavit does not measure up fully to these
requirements, the court may nonetheless in
the exercise of its
discretion refuse to grant summary judgment. However the discretion
is not to be exercised capriciously so
as to deprive a plaintiff of
summary judgment when he ought to have that relief. It should also
not be exercised against a plaintiff
on the basis of mere conjecture
or speculation, but on the material before the court [at 227G-229G].
There are really two
issues which need to be determined. The first is whether the
application for summary judgment should be considered
on the basis
that, if I am satisfied that the defendants have not met the
threshold set out in the
Breitenbach
case, the condonation
sought in the plaintiff’s particulars of claim in respect of
the mortgage loan agreement will follow,
notwithstanding that there
is no formal application for condonation before the court. The
second of course is whether the threshold
has been met by the
defendants.
Rule 27(1) of the
uniform rules of court provides that in the absence of agreement
between the parties, the court may upon application
on notice and on
good cause shown make an order extending or abridging any time
period prescribed by the rules or order of court.
Rule 27(3) on the
other hand stipulates that the court may, on good cause shown,
condone any non-compliance with the rules. Rule
27(3) thus does not
require the party seeking relief to proceed by way of an application
on notice as is the case in rule 27(1).
The only prerequisite is
that good cause must be shown.
During argument the
second defendant (who appeared in his personal capacity and on
behalf of the first defendant) submitted that
it would offend
against the “rules of natural justice”for condonation to
be granted in the absence of a formal application
since this would
effectively deprive the defendants of their right to place their
case in respect of the condonation before the
court.
The defendants have been
aware since service of the summons of the plaintiff’s
allegations regarding the mortgage loan agreement;
and that the
plaintiff sought condonation from the outset for its failure to
comply with rule 18(6). The defendants furthermore
do not dispute
any of the plaintiff’s allegations concerning the destruction
of the original mortgage loan agreement; nor
have they disputed that
the plaintiff should not be granted the condonation sought.
That the defendants were
very much alive to the plaintiff’s allegations regarding the
original mortgage loan agreement is
clear from the grounds advanced
by them in the notice of exception; and when regard is had to those
grounds they constitute technical
attacks on the manner in which the
plaintiff has pleaded its reliance on the mortgage loan agreement,
and not that the plaintiff
has failed to show good cause in its
particulars of claim for condonation to be granted
Rule 18(6) stipulates
that a party who in his pleading relies upon a contract shall state
whether the contract is written or oral
and when, where and by whom
it was concluded and if the contract is written a true copy thereof
or of the part relied on in the
pleading shall be annexed to the
pleading.
In
Moosa and Others
NNO v Hassam and Others NNO
2010 (2) SA 410
(KZP) which was
decided within the context of an application by the defendants to
set aside the plaintiff’s summons as
an irregular step, Swain
J had the following to say at paragraphs [20] and [21]:
‘
[20] It
is therefore clear that a party who bases its cause of action upon a
written agreement should obtain a true copy of the
agreement before
advancing its claim. However, this is not to say that a failure to
annex a written agreement relied upon may never
be condoned in terms
of rule 27(3).
[21] Good cause would have to be
shown why the party concerned is unable, at that stage, to annex a
copy of the written agreement
relied upon. Relevant considerations
would be the steps taken to obtain a copy of the written agreement
and the prospects of the
written agreement being obtained in the
future. That a true copy will be available before the issues arising
therefrom have to
be determined will be of particular importance in
this regard. In addition any prejudice to the opposing party caused
by the failure
to annex the agreement to the pleading would have to
be considered. Of significance in this regard would be whether the
pleading
concisely and clearly sets out the terms relied upon in the
written agreement upon which the cause of action is based, and is not
excipiable. The above factors are not exhaustive and each case will
have to be decided upon its individual merits.’
And at paragraph [23]:
‘
The
respondents did not seek condonation for their failure to annex a
true copy of the written agreement and were content to rely
on the
argument dealt with above. In addition no facts were set out by the
respondents to explain their inability to annex a true
copy of the
written agreement.’
In the present matter I
am satisfied that the plaintiff has shown good cause for condonation
on the basis of the allegations made
in its particulars of claim.
First, the original mortgage loan agreement was destroyed in a fire.
Second, the plaintiff has only
managed to obtain an unsigned copy
thereof which is annexed to its summons. Third, it is no leap of
logic to conclude that in
the circumstances the plaintiff is unable
to identify which of its duly authorised employees represented the
plaintiff, and who
represented the first defendant, in the
conclusion of the mortgage loan agreement. Fourth, the pleading
concisely and clearly
sets out the terms relied upon in the written
agreement upon which the cause of action is based and is not
excipiable. Fifth,
the defendants do not allege any prejudice but
only demand that the plaintiff “proves” that the first
defendant concluded
the mortgage loan agreement with the plaintiff.
Last, the plaintiff has throughout sought condonation for its
failure to comply
with rule 18(6) in respect of the mortgage loan
agreement. In these circumstances I agree with the submission of
Mr Jonker
who appeared on behalf of the plaintiff that the
technical defences raised by the defendants are nothing other than
opportunistic.
The “defence”
raised by the second defendant in his special plea is easily
disposed of. In essence he alleges that
the plaintiff is unfairly
discriminating against him since the latter has only proceeded
against him as surety and not against
his co-surety Mr van der Merwe
as well. The deed of suretyship annexed to the plaintiff’s
summons which was signed by the
defendant, and which he does not
dispute, provides in clause 3 that: (a) where more than one person
signs as surety for the obligations
of the first defendant in favour
of the plaintiff, each such person shall be jointly and severally
liable as surety and co-principal
debtor for such obligations; and
(b) the validity and enforceability of the suretyship shall in no
respect be subject to the
obtaining of a suretyship from another
person, or to the validity of the suretyship of any other surety.
Further, it is trite
that where co-debtors are jointly and severally
liable, the creditor may proceed against the co-debtors individually
or jointly
at its election.
I am also satisfied that
the defendants have failed to meet the test set out in the
Breitenbach
case insofar as their defence on the merits is
concerned. That defence is both inherently and seriously
unconvincing when viewed
against the undisputed similarities –
on the defendants’ own version – between the annexure to
the second defendant’s
special plea and the averments
contained in the plaintiff’s particulars of claim as read with
the annexures thereto.
Furthermore, the
defendants do not dispute the acknowledgment of debt contained in
clause 2 of the mortgage bond. They do not
dispute that the mortgage
bond was registered over the property. They do not take issue with
the certificate of balance provided
by the plaintiff or deny that,
in terms of both clause 9 of the mortgage bond and clause 14 of the
deed of suretyship, the certificate
constitutes sufficient proof of
the amounts owing for purposes of judgment. Finally, it is not
incumbent on a plaintiff in summary
judgment proceedings to
independently prove its case. All that is required is that it must
comply with the provisions of rule
32. The plaintiff has done so.
[23]
In the result I make the following order:
1.
The plaintiff’s failure to comply with rule 18(6) in respect of
the mortgage loan agreement being annexure “A”
to its
particulars of claim is condoned.
2.
Summary judgment is granted against the defendants, jointly and
severally, the one paying the other to be absolved, as follows:
2.1.
Payment of the amount of R1 350 336.02;
2.2.
Payment of interest on the amount of R1 350 336.02 at the
rate of 6.5% per annum as from 16 January 2013 to
date of final
payment, such interest to be capitalised monthly in advance;
2.3.
An order declaring:
ERF7637 BELLVILLE,
situate in the City of Cape Town, Cape Division, Western Cape
Province
In extent: 526 SQUARE
METRES
Held by Deed of
Transfer No T74241/2006, to be specially executable;
2.4 Costs of suit on
an attorney and client scale, to be taxed.
_______________
J I CLOETE