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[2013] ZAWCHC 116
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Firstrand Bank Ltd v Baadjies (2024/13) [2013] ZAWCHC 116 (27 August 2013)
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE HIGH COURT, CAPE
TOWN)
Case
No
2024
/13
In the matter between:
FIRSTRAND
BANK LIMITED
...........................................................
Plaintiff
and
CEMARA
CONTESSA BAADJIES
..................................................
Defendant
Court:
GRIESEL J
Heard:
21 August 2013
Delivered:
27 August 2013
____________________________________________________________________
JUDGMENT
____________________________________________________________________
Griesel j:
In
this application for summary judgment the plaintiff claims payment
from the defendant in a sum of R219 686.21 together
with
interest; an order declaring the mortgaged property (situated in the
Nelson Mandela Metropolitan Municipality Division of
Port Elizabeth,
Eastern Cape Province) specially executable; an order authorising
the plaintiff to execute against the said property
as envisaged in
Uniform Rule 46(1)(a)(ii); and costs on an attorney and client
scale.
The
plaintiff’s head office is in Johannesburg. The loan agreement
giving rise to the present claim was entered into between
the
parties on 17 January 2007 in Port Elizabeth, where the defendant is
resident. The loan is secured by a mortgage bond in
favour of the
plaintiff registered over the defendant’s property, situated
in Port Elizabeth. The claim represents the
outstanding balance
on the defendant’s loan account with the plaintiff, which is
in arrears and is proved by a certificate
issued on behalf of the
plaintiff.
In
its particulars of claim the plaintiff alleged that this court has
the necessary jurisdiction in this matter by reason of the
fact that
‘the mortgage bond was duly registered in the Deeds Office
Cape Town, as was required by law’.
After
service of summons on her, the defendant gave notice of her
intention to defend the action, which led to the plaintiff launching
the present application for summary judgment. In her opposing
affidavit in the summary judgment proceedings, the defendant
took issue with the plaintiff’s allegations as to
jurisdiction, claiming that the ground upon which the plaintiff
relies
for jurisdiction is not a recognised ground as provided for
in the Supreme Court Act, 59 of 1959, and that this Court lacks the
necessary jurisdiction to hear the matter.
When
the matter was called before me on 21 August 2013, there was no
appearance on behalf of the defendant, whose attorneys of
record
appear to have withdrawn prior to the hearing. I have accordingly
not received the benefit of considered argument in support
of the
defendant’s stance.
In
approaching the question of jurisdiction in the context of the
present case, the starting point must be found in the provisions
of
s 19(1)(a) of the Supreme Court Act, which confers
jurisdiction,
inter alia
, ‘. . . over
all persons residing or being in and in relation to
all causes
arising
. . . within its area of jurisdiction and
all other matters of which it may according to law take
cognizance . . .’
(emphasis added). It is trite
that a cause based on contract ‘arises’ where (a) the
contract was entered into;
or (b) the contract is or was to be
performed, wholly or in part; or (c) the particular breach of
contract upon which
the plaintiff relies, was committed. The
plaintiff has a choice of instituting action in any of these places.
1
In
the context of the present matter, Ms
Liebenberg,
who
appeared on behalf of the plaintiff, submitted that in interpreting
‘all causes arising’, regard should be had
to the
ratio
jurisdictionis
recognised by the common law, namely
performance, or part performance, of a contract.
2
Part of the cause of action arose within the jurisdiction of this
court, so it was submitted, as the mortgage bond in question
was
registered in the Deeds Office, Cape Town, as was required by law,
and while the
situs
of the property is not within the
territorial jurisdiction of this court, this court is able to
enforce its judgment by
virtue of the fact that the immovable
property is registered in the Deeds Office, Cape Town.
In
support of this submission, counsel referred to the judgment of Van
Oosten J in
Geyser v Nedbank Ltd: In re: Nedbank Ltd v Geyser
,
3
where it was held:
‘
But
the property, quite apart from its executability, has relevance for
purposes of founding jurisdiction. It undoubtedly played
an integral
if not vital part in the loan transaction which as indicated earlier
constituted the basis for the bank’s cause
of action. It was
obviously on the strength of the security of a first mortgage bond
that the loan was granted to the applicant.
This factor, Goldstein J
held, was of no moment as, so the learned Judge reasoned, “in
fact, if it wished, the first respondent
could have advanced the
money without registering the bond at all”. I am unable to
agree. Fact of the matter is that security
was required by the bank
and it was provided. Whether the bank could have granted the loan
without any form of security, in my
view, is of no relevance. It is
accordingly my finding that the
situs
of
the hypothecated property constitutes a jurisdictional connecting
factor giving rise to the jurisdiction of this Court.’
Although
this judgment is clearly distinguishable on the facts, inasmuch as
the property in question in
Geyser
was in fact situated
within the area of jurisdiction of the court dealing with the
matter, I agree that, as in that case, the
property in this case
likewise ‘played an integral if not vital part in the loan
transaction’. Thus, it appears from
the mortgage bond in this
case that the loan was granted by the plaintiff ‘provided
inter alia
that this Mortgage Bond is registered’ and
in the plaintiff’s particulars of claim it is pleaded that the
loan was
approved ‘subject to the registration of a mortgage
bond’.
In order to give effect to this
material requirement, it was necessary for the defendant to effect
registration of the mortgage
bond in the Deeds Office Cape Town and,
to that extent, I consider that part of the contract had to be
performed within the area
of jurisdiction of this court, thereby
conferring the necessary jurisdiction on this court to determine the
plaintiff’s
claim sounding in money. That being so, it follows
that this court is also empowered to issue an ancillary order
declaring the
mortgaged property specially executable.
4
I
am in any event satisfied that there is a further reason why this
court has jurisdiction to decide the present claim. This relates
to
the fact that the plaintiff’s cause of action herein is not
based solely on the loan agreement concluded in Port Elizabeth,
but
also on the mortgage bond registered as security for such loan. In
this regard, it is trite that a ‘mortgage bond is
of a dual
nature in that it usually serves both as a record of the principal
obligation and its terms and of the mortgage relationship
in its
contractual and hypothecary aspects’.
5
It is also customary in conveyancing practice to incorporate in
the bond an unqualified admission of liability by the
mortgagor.
6
Where this is the position, a court is entitled to hear an action
for provisional sentence based on the mortgage bond. I cannot
imagine that anybody could question the jurisdiction of the court in
whose area the mortgage bond is registered. The question
is whether
it makes any difference in principle that the plaintiff has chosen
to pursue an ordinary claim based on a combined
summons, instead of
provisional sentence. In my view, the answer must be clearly be no.
For
these reasons, I conclude that this court does enjoy the necessary
jurisdiction, concurrently with the Eastern Cape court,
to hear the
present application for summary judgment.
Apart
from the issue of jurisdiction, the defendant has failed to disclose
any other
bona fide
defence to the plaintiff’s action,
with the result that the plaintiff is entitled to summary judgment
as claimed in the
summons.
In
the circumstances, summary judgment is granted in favour of the
plaintiff as follows:
(a) Payment of the sum of R219
686.21;
(b)
Interest on the aforesaid amount at the rate of 9.30%
per annum
calculated and capitalised monthly in arrears from 1 December 2012 to
date of payment, both days inclusive;
(c) An order declaring –
Erf 605
Bloemendal
in the Nelson Mandela Metropolitan Municipality
Division of Port Elizabeth
Province of Eastern Cape
in
extent 137 (One Hundred And Thirty Seven) square metres
Held by
Deed of Transfer No T031462/2007,
specially executable;
(d)
An order authorising the plaintiff to execute against the said
property as envisaged in Rule 46(1)(a)(ii) of the Uniform Rules;
(e) Costs of suit as between
attorney and client.
B M Griesel
Judge of
the High Court
1
DR
Harms
Civil Procedure in the Superior Courts
para A4.14 and
the authorities cited therein (Service Issue 46, Sept 2012).
2
Cf
Roberts Construction Co Ltd v Willcox Bros. (Pty) Limited
1962 (4) SA 326
(A) at 331H.
3
2006
(5) SA 355
(W) para 11 at 361G–362A.
4
Ivoral
Properties (Pty) Limited v Sheriff, Cape Town & others
2005
(6) SA 96
(C) paras 50 53.
5
Mortgage
and Pledge
in 17
Lawsa
(2ed) para 329.
6
Ibid
.