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[2012] ZAWCHC 238
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Absa Bank Ltd v Janse van Rensburg and Another, Absa Bank Ltd v Maree and Another (16071/12, 16815/12) [2012] ZAWCHC 238; 2013 (5) SA 173 (WCC) (24 December 2012)
IN THE WESTERN
CAPE HIGH COURT, CAPE TOWN
Case
No 16071/12
In
the matter between:
ABSA
BANK LIMITED
......................................................................
Plaintiff
and
PIETER
JACOBUS JANSE VAN RENSBURG
..................
First
Defendant
GINA
MARI JANSE VAN RENSBURG
..........................
Second
Defendant
Case
No 16815/12
ABSA
BANK LIMITED
.....................................................................
Plaintiff
and
ELIZABETH
FRANCINA MAREE
.....................................
First
Defendant
STEFANUS
MAREE
...........................................................
Second
Defendant
Court:
GRIESEL,
FOURIE & SALDANHA JJ
Heard:
30
November 2012
Delivered:
24
December 2012
JUDGMENT
GRIESEL
J:
Introduction
[1]
These two matters initially came before me in motion court as
unopposed applications for default judgment, based on mortgage
bonds
registered in favour of the plaintiff (‘the bank’) over
immovable properties belonging to the defendants. In
both matters the
spouses of the respective owners have signed a deed of suretyship in
respect of the indebtedness arising from
the loan. In both, the bank
has instituted action by way of an ordinary or ‘simple’
summons, annexing copies of the
relevant mortgage bonds and
suretyships, but not the underlying credit agreements secured by such
bonds and suretyships. The question
arose whether or not it was
necessary to attach copies of the relevant agreements as well.
Counsel for the bank submitted
that this was not necessary, as a
simple summons is not a ‘pleading’, with the result that
the requirements of Uniform
rule 18, particularly rule 18(6), are not
applicable.
1
[2]
In view of differences of approach among some of the judges of this
division, it was decided, in consultation with the Judge
President,
to refer the present matters for a hearing before a full court so as
to get some consistency as to the correct practice
to be followed in
this division in matters of this kind.
[3]
At the subsequent hearing before us Adv
Sievers
appeared on behalf of the bank, while Adv
Wessels
appeared as
amicus curiae.
We are indebted to both counsel for the assistance provided to the
court.
Discussion
[4]
The question whether or not a simple summons is a pleading was
recently considered by Wallis J (as he then was) in
Icebreakers
No 83
v
Medicross
Health Care Group.
2
The plaintiff, by way of such a summons, claimed payment of three
amounts, namely R283 767 ‘arising out of arrear rental
due in
respect of leased premises’; R169 435,26 ‘being the
reasonable and necessary costs of building alterations carried
out’
to those premises; and R49 587 ‘in respect of the costs and
repairs to dental equipment leased to the defendant’.
The
defendant delivered a notice of exception on the grounds that the
claims as set out in the summons lacked averments to sustain
a cause
of action. In the course of a comprehensive judgment, the learned
judge referred
inter alia
to the requirement in Form 9 of the First Schedule that the
plaintiff’s cause of action be set out in ‘concise terms’
and pointed out that there is a ‘plethora of authority’
that all that is required in setting out the concise terms
of a cause
of action ‘is to give a general indication of the claim
amounting merely to a label’.
3
For this, and a variety of further reasons, Wallis J accordingly
concluded that a simple summons is not a pleading, with the result
that it cannot be attacked by way of an exception.
[5]
The
Icebreakers
judgment has been referred to with approval in the Free State in
Pioneer Hi-Bred RSA (Pty) Ltd
v
Du Toit
4
and also in this division in
Williams
v
Absa Bank Limited
5
Moreover, in various other decisions in this division, a similar
approach was followed and it has pertinently been held that the
provisions of rule 18(6) are not applicable to a simple summons,
because it is not a pleading.
6
Although I find the reasoning in the
Icebreakers
judgment persuasive, it is not necessary for purposes hereof to come
to any final decision on this abstract question. This is so,
as
rightly pointed out by the
amicus,
because the more important practical
question remains unanswered, namely whether a plaintiff is
nevertheless required to annex copies
of the written agreements on
which it relies in order to comply with the requirement of Form 9
that the cause of action should
be ‘concisely’ stated in
the simple summons. I will accordingly accept in favour of the
plaintiff (without so finding)
that a simple summons is not a
pleading.
Rules
of practice
[6]
The question whether or not a plaintiff is required to annex copies
of the underlying agreement (and other relevant documents)
to a
simple summons frequently arises in the context of matters where the
provisions of the National Credit Act 34 of 2005 (‘the
NCA’)
apply, especially where they concern home loans in respect of
residential properties constituting the primary residences
of the
debtors involved, such as in the two matters before us. These kinds
of matters form the vast majority of applications for
default and
summary judgment coming before judges in motion court in this
division - to such an extent that it has become necessary
to place a
limit on the number of these matters that may be set down in motion
court on any given day and to constitute special
courts from time to
time to deal with the resultant backlog.
7
[7]
Some of the problems arising in matters governed by the NCA have been
alluded to in recent judgments of full courts in this
division
8
Thus, in
Dawood
,
reference was made to the form of process to be utilised (simple or
combined summons). In the course of the judgment I observed
9
that ‘[n]owadays, . . . the simple summons can no longer be
regarded as merely “a label to the claim”, at least
not
in claims where the NCA is applicable. This is so . . . due to “the
myriad allegations which a plaintiff is now required
to make
regarding NCA compliance where the statute is applicable and
compliance with the constitutional imperatives prescribed
by s 26(1)
of the Constitution”.
10
’
Notwithstanding these requirements, it was held that it is not
irregular to supply in a simple summons the particularity
required in
a combined summons,
11
nor is it impermissible or irregular to make use of a combined
summons in claims for a debt or liquidated demand.
12
In fact, it was suggested that -
‘
[i]t
may well be preferable in certain instances to make use of a combined
summons - as has already been done in many cases in this
division.
This would, generally, make for neater and more elegant pleading and
would at the same time make the plaintiff’s
case more easily
readable and comprehensible, not only to the defendant,
but
also to the court.’
13
[8]
Turning to the need to annex copies of documents to a simple summons,
this question was considered by Berman and Selikowitz
JJ in
Volkskas
Bank
v
Wilkinson
,
14
where the requirements for a simple summons were succinctly
summarised as follows:
‘
It
appears to us accordingly that where a plaintiff sues for repayment
of a loan (or an overdraft) all that a simple summons need
contain is
a statement setting out the relief claimed and a succinct outline of
the cause of action, ie that an agreement of loan
(or of overdraft)
was concluded between the parties providing for interest on the
balance outstanding from time to time at a specified
(or
ascertainable) rate and which loan (or overdraft) was repayable on
demand (or on a fixed or ascertainable date) and which,
despite
demand (or the arrival of that date), has not been repaid.
Where
the cause of action is founded on some document, reference thereto
should be made in the summons and a copy should be attached
to the
summons and the original should be handed in at the time when
application for default judgment is made.’
15
[9]
In
Nedbank
v
Jacobs
16
Thring J held that summary judgment could not be granted where
neither the relevant loan agreement nor the mortgage bond had been
annexed to the simple summons. He referred to this requirement laid
down in the
Wilkinson
judgment, before concluding:
‘
.
. . The plaintiff has failed, in my judgment, to comply with the
provisions of Rule 17(2)(b), inasmuch as it has not attached
to its
summons a copy of either the loan
agreement
(if it was in writing) or of the mortgage bond.’
17
1
[10]
In
Marshall, supra,
18
Gamble J followed the
Wilkinson
and
Jacobs
decisions and concluded that it was necessary for the plaintiff in
the cases before him to have annexed copies of,
inter
alia
, the relevant mortgage bonds to
its summons.
19
He regarded one of the cases before him to be ‘ a good example
as to why all the relevant documentation should be before
the
Court’:
20
in that case, a deeds office search revealed that the two mortgage
bonds referred to in the simple summons have not been registered
in
favour of the plaintiff bank at all.
[11]
More recently, in
ABSA Bank
v
Studdard,
21
Wepener J in the South Gauteng High Court also considered the very
issue confronting us herein namely whether, having regard to
the
wording of rule 17(2)(b) read with Form 9 or any other requirement,
the written agreement of loan should be attached to the
summons. He
observed that ‘[i]t has been a rule of practice in this
Division that copies of both the written agreement of
loan as well as
the bond document must be attached to a summons, including a simple
summons, and to produce the original documents
at the time when
judgment is requested, whether the matter is brought by way of
summons or application.’
22
He also referred to the
Wilkinson
and
Jacobs
decisions,
supra,
in support of the finding that it is „a long standing rule of
practice in the Western Cape High Court’ that the written
agreement of loan should be attached to a simple summons.
23
After
referring to various other authorities, he concluded as follows:
‘
I
consequently conclude that the cases requiring the attachment of the
written document, where it forms a link in the chain of the
cause of
action or is the foundation of the plaintiff’s cause of action,
are correct and should be followed. As is the case
in this Division,
the practice in the Western Cape High Court is a salutary one and I
find no reason why I should not follow what
the Full Bench said in
Wilkinson
regarding
the attachment of the written contract where it forms a link in the
chain of the cause of action or the cause of action
is found thereon
as well as the
allegations,
which are required to be contained in a simple summons.’
24
[12]
Apart from the judicial authority referred to above, all the foremost
authorities in this country on civil procedure in the
High Court
appear to support this line of authority. In
Erasmus,
25
reference is made to the
Wilkinson
and
Studdard
judgments,
supra,
in support of the following statement:
‘
Where
the cause of action is founded on some document, reference thereto
should be made in the simple summons and a copy should
be attached to
the summons and the original should be handed in at the time when
application for default judgment is made. If a
copy of the required
document is not attached to the simple summons, the summons would not
disclose a cause of action.’
[13]
In the same context, Harms
26
states as follows:
‘
Where
a document is the very foundation of the cause of action or defence,
it is good practice, and a legitimate and perfectly proper
method of
pleading, to annex a copy of the document to it’ [i.e. a simple
summons].’
[14]
Herbstein & Van Winsen
27
put it thus:
‘
Where
it is necessary, in order to show what the cause of action is, to
annex a contract or other document on which the action is
based, this
should be done. Where the summons is a combined summons, rule 18(6)
requires the annexation of any written contract
on which the
plaintiff relies. Even where a simple summons is issued, however, it
has been held that if a cause of action is founded
on a document, a
copy of the document should be annexed to the summons and the
original should be handed in at the time when application
for default
judgment is made.’
Conclusion
[15]
To sum up, the weight of authority appears to favour a view that,
although a simple summons is not a pleading, it is nevertheless
necessary, on a proper interpretation of rule 17(2)(b), read
with Form 9, to attach a written agreement where the plaintiff’s
cause of action is based on such agreement. Having regard to the
long-standing practice, both in this division and in South Gauteng,
and bearing in mind the need for uniformity in the practice of some
of the larger divisions in this country, I have not been persuaded
that we should deviate from that practice. To the extent that a
different approach has been adopted in some of the cases referred
to
above,
28
they deviate from the long-standing practice in this division (and
elsewhere) and should no longer be followed.
[16]
This conclusion is subject to two riders: first, in my view, it
should no longer be required of a plaintiff, when applying
for
default or summary judgment, as a matter of course to hand in the
original document unless called for by the presiding judge
where
circumstances so require. In my experience, this practice has fallen
into disuse in this division. Secondly, to the extent
that rule 18(6)
requires of a plaintiff relying on a written agreement to annex ‘a
true copy thereof
or of the part
relied on
in the pleading’ (my
emphasis), it would be incongruous to have a more onerous requirement
in respect of a simple summons;
in other words, it should be open to
a plaintiff who relies on portion only of a voluminous written
agreement only to attach such
portion to the summons, and not the
whole document.
[17]
Apart from the authorities and precedents referred to above, there
are important considerations of principle and policy supporting
such
an approach. In this regard, it should be borne in mind that the
purpose of a simple summons is not merely to inform the defendant
of
the nature of the claim being instituted by the plaintiff, but also -
and perhaps more importantly - to enable the court ‘to
decide
whether judgment should be granted’.
29
More recently, this latter requirement has assumed added importance
in the light of the Constitutional and statutory need for judicial
oversight in matters involving the NCA, especially where the homes of
debtors are concerned.
30
There is no doubt in my mind that this function can be more readily
performed if copies of the relevant documents (including underlying
agreements on which the claims are based) were to be attached to the
simple summons.
[18]
It is correct, as pointed out by counsel for the bank, that the
requirement of attaching relevant documents to a simple summons
may
tend, to some extent, to frustrate the purpose of the rules, as
succinctly
summarised
in
Herbstein & Van
Winsen:
31
‘
The
Rules of Court, which constitute the procedural machinery of the
courts, are intended to expedite the business of the courts.
Consequently, they will be interpreted and applied in a spirit
that will facilitate the work of the courts and enable litigants
to
resolve their differences in as speedy and inexpensive a manner as
possible.’
[19]
However, I agree in this regard with Wepener J where he held in
Studdard, supra,
that ‘[t]he additional costs of attaching a few pages to a
summons cannot outweigh the importance of attaching the documents.’
32
Furthermore, the practical importance of attaching relevant documents
to a simple summons is amply demonstrated by the example
referred to
in
Marshall, supra.
33
I cannot, therefore, agree with the suggestion that attachment of the
underlying agreements to a simple summons is unnecessary.
[20]
What is indeed unnecessary is the practice that has sprung up in this
division in matters of this kind of including unnecessary
papers in
the court file. The two matters presently before us illustrate the
problem. The plaintiff’s attorney has duly attached
to the
simple summons in each case a copy of the certificate of balance in
respect of both defendants, as well as copies of the
notice in terms
of s 129 of the NCA sent to both defendants, together with the
relevant proofs of registered posting as well as
a track and trace
report in respect of both postal items. So far, so good. However, in
the affidavit filed in terms of Practice
Note 33(2) in support of the
application for default judgment,
34
the Homeloans Legal Manager of the bank again found it necessary to
attach all these documents to his affidavit. Not yet content
that
compliance with the Act has been sufficiently established, the same
manager thereupon filed a ‘Certificate of Compliance
in terms
of
section 129
of the
National Credit Act, No 34 of 2005
’, once
more attaching the letters in terms of
s 129
that had earlier already
been attached to both the summons and the affidavit in terms of
Practice Note 33(2). In the process, a
not insignificant volume
of unnecessary paper has been placed before the court, which practice
is to be strongly censured
and discouraged. Practitioners should note
that the affidavit filed in compliance with Practice Note 33(2)
should be concise and
it should confirm rather than repeat the
relevant allegations already made in the summons or particulars of
claim. Furthermore,
it should
not
have attached thereto as annexures copies of any document which is
already annexed to the summons or particulars of claim.
Individual
cases
[21]
Reverting to the two individual cases before us, as mentioned
earlier, each of the claims before us has been commenced by way
of a
simple summons, annexing copies of the relevant mortgage bonds and
the suretyships, but not of the underlying credit agreements
secured
by such bonds. In attaching the mortgage bonds and the suretyships,
the bank appears to recognise the need to attach a
document to a
simple summons in certain circumstances. However, the wrong documents
were attached in these instances, as the plaintiff’s
claims are
based on the terms of the individual loan agreements, not the
mortgage bonds or
suretyships
which secure those agreements.
35
[22]
In the light of the conclusions reached above, the papers are not in
order and require amendments to the respective summonses
so as to
refer to the underlying agreements and to attach copies thereof. It
follows that the bank is not, at this stage, entitled
to default
judgment as claimed, nor is it entitled to recover costs from the
defendants herein in relation to the first appearance
on 31 October
2012 in third division or in respect of the hearing before us on 30
November 2012.
[23]
Both matters are accordingly postponed
sine
die,
with no order as to costs.
[original
signed]
B
M GRIESEL
Judge
of the High Court
FOURIE
J: I agree
P
B FOURIE
Judge
of the High Court
SALDANHA
J: I agree
V
C SALDANHA
Judge
of the High
1
Rule
18(6)
provides:
‘
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.
’
2
2011
(5) SA 130
(KZD).
3
Para
5.
4
(399/2012)
[2012] ZAFSHC 78
(26 April 2012) paras 4 and 5.
5
(Unreported,
WCC Case no 15223/12, 7 November 2012), para 19.
6
See
eg
Standard
Bank v Hunkydory Investments (No 1)
2012
(1) SA 627
(WCC) paras 6-12;
Absa
Bank v Z andK Sons Traders
(Unreported,
WCC case no 1639/12, 26 April 2012), para 5;
Absa
Bank v Greeff
(Unreported,
WCC case no 5432/12, 5 June 2012), para 5.
7
As
an aside, all ‘ordinary’ applications for default
judgment where the claims are for a debt or liquidated demand
are
normally dealt with by the registrar in terms of the provisions of
rule 31(5).
This power was given to registrars pursuant to the
report by Mr Justice O Galgut, who motivated this innovation by
observing
that ‘[m]y inquiries show that the Republic is the
only Western country in which a supreme court judge solemnly sits in
open court and grants judgments by default. This in fact detracts
from his dignity. I am firmly of the view that the registrars
should
be given greater powers. ’ (See
Report
of the Commission of Inquiry into Civil Proceedings in the Supreme
Court of South Africa,
dated
14 May 1980, p 36). Cf also
Standard
Bank v Bekker
2011
(6) SA 111
(WCC) para 28.
8
Bekker’s
case,
supra; Standard
Bank v Dawood
2012
(6) SA 151
(WCC) paras 6-7.
9
In
para 8.
10
Absa
Bank v Marshall; Absa Bank v Uys
[2011]
ZAWCHC 500
(29 November 2011) para 30.
11
Dawood,
para
7.
12
Paras
14, 19.
13
Ibid
14
1992
(2) SA 388
(C).
15
At
397I-398B (emphasis added). See also at 395C-E.
16
2008
JDR 0445(C);
[2008] JOL 21940
(C).
17
Page
24
18
Footnote
10
above,
paras 23-26.
19
It
should be noted that the full court in
Dawood,
supra,
did
not follow
Marshall
insofar
as the latter decision deprecated the use of a simple summons in
claims for debts or liquidated demands involving the
NCA. The full
court
,
however,
having concluded that the use of a simple summons was permissible
in those matters, was not called upon to pronounce
on the further
question whether any supporting documents had to be attached to such
summons.
20
Para
28
21
[2012]
ZAGPJHC 26 (13 March 2012);
[2012] JOL 28604
(GSJ).
22
Para
6
23
Para
13
24
Para
23
25
D
E van Loggerenberg & P B J Farlam, Erasmus
Superior
Court Practice
B1-124
at nn 5 and 6 (Service 39, 2012).
26
D
R Harms
Civil
Practice in the Superior Courts
(September
2012 - SI 46) B18.13.
27
AC
Cilliers
et
al
Herbstein
& Van Winsen
The
Civil Practice of the High Courts and the Supreme Court of Appeal of
South Africa
(5
ed) Vol. 1 p 704 and the authorities referred to in footnotes 27 and
28.
28
Footnotes
5 and 6
above.
29
Wilkinson,
supra,
at
395A.
30
See
eg s 26(3) of the Constitution, 1996 as well as the provisions of
rule 46(1)(a).
31
Op
cit
Vol
1 p 30 (footnotes omitted).
32
Para
20
33
Para
24-25
34
Practice
Note 33(2) provides:
‘
In
order to satisfy the court of the matters referred to in section
130(3) of the Act, an affidavit must be filed when a credit
provider
applies for judgment. ’
35
Cf
Studdard,
supra,
para
5.