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SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in compliance with the law and SAFLII Policy

REPUBLIC OF SOUTH AFRICA

IN THE HIGH COURT OF SOUTH AFRICA,

DATE: 1.6.2017

CASE NO: 61962/2014

In the matter between:

ABSA BANK LIMITED                                                                                                   Applicant

and

JOHANNES MARTHINUS FRANCOIS

JANSEN VAN VUUREN                   

(ID NO: [6…])                                                                                                    First Respondent

JANE SANDRA

JANSEN VAN VUUREN

(ID NO: [7…])                                                                                              Second Respondent

GAMAN11CC

(REG NO: 2002/015952/23)                                                                      Third Respondent

JUDGMENT

MSIMEKI J,

INTRODUCTION

[1] The  plaintiff, by  way  of a combined  summons, sued  the defendants praying for judgment against the defendant,s jointly and severally, the one paying the other to be absolved, for the following:

"ACCOUNT NUMBER: [4...]

1.            Payment in the amount of R 3 327 241.80;

2.            Interest on the amount of R 3 327 241.80 calculated at the rate of 17.25% (Prime currently 09.25% plus 08.00%) per annum calculated from 24 July 2014 to date of payment, both days included, the said interest to be calculated and capitalized monthly;

3.            An order against the FIRST DEFENDANT declaring the properties known as:

3.1         PORTION  29  OF  THE  FARM  DOORNPOORT   295,

REGISTRATJON DIVISION J. R., PROVINCE OF GAUTENG, MEASURING   1,    0868   HECTARES,   HELD   BY   DEED    OF TRANSFER T53473/2005, is mortgaged under First Mortgage Bond with number [B…];

3.2         ERF 248 MODELPARK TOWNSHIP, REGISTRAT/ON DIVISION J. S., PROVINCE OF MPUMALANGA, MEASURING 1192 SQUARE METRES, HELD BY DEED OF TRANSFER T1563171200,4 is mortgaged under First Mortgage Bond with number  [B…];

Specially executable

4.            An order against the SECOND DEFENDANT declaring the property known as:  REMAINING  EXTENT ERF 730 RANDFONTEIN TOWNSHIP, REGISTRATION DIVISION J. R., PROVINCE OF GAUTENG, IN  EXTENT  397  SQUARE METRES,  HELD   BY  DEED   OF   TRANSFER   T8486/2000,  is mortgaged    under     First     Mortgage     Bond    with    number [B…];

Specially executable

5.            That the REGISTRAR of the above Honourable Court be authorized to issue a Writ of Execution against the immovable property referred to in payers 3 and 4 above, to give effect to the order granted in terms of prayers 3 and 4 above;

6.            The Second Defendant's liability to be limited to an amount of R 950 000.  00,  together  with  additional  amounts,  interest  and costs, incurred or to be incurred, to date of payment

7.            Costs as between Attorney and Client to be taxed;

8.            Further and/or alternative relief."

BRIEF BACKGROUND FACTS

[2] The first and third defendants entered their appearance to defend the action causing the plaintiff to bring this application for summary judgment on

22 November 2011. The third defendant being the principal debtor duly represented, concluded a written agreement with the plaintiff also duly represented. The terms of the agreement are set out in a Letter of Grant of Facility dated 19 November 2011 a copy of which, together with the terms and conditions are annexed to the particulars of claim. In terms of the aforementioned, the plaintiff would open a cheque account for the principal debtor and would allow overdraft facilities on the account in terms of which the plaintiff would lend and advance a limit of R 2 610.000.00 to the principal debtor, inter alia, by the payment of cheques drawn by the principal debtor on the plaintiff.

[3] The principal debtor undertook to:

1.           Pay interest on the outstanding balance due in terms of the overdraft account at the prime lending rate of the plaintiff;

2.           Pay the plaintiff's normal banking charges;

3.           Pay the outstanding balance due to the plaintiff on demand;

4.           Pay the interest which would be calculated on daily closing balances and compounded monthly in arrears;

5.           Pay costs as taxed between attorney and client in respect of all expenses incurred by the plaintiff to recover outstanding debts from it.

[4] The first and second defendants signed written suretyships at Pretoria on 8 April 2010, in terms of which they bound themselves as "surety and co­ principal debtor" together with the principal debtor in favour of the plaintiff for the repayment of the amount of any sum of money, which the principal debtor may from time to time be owing to the plaintiff from whatever cause arising. The third defendant, duly represented, signed a limited suretyship also on 8 April 2010.

[5] The defendants renounced the benefits of cession of actions and no cause of debt. The deeds of suretyship are annexed to the particulars of claim as annexures "C1"-"C3".

[6] The first defendant mortgaged as continuing covering security for each and every sum in which he may from time to time be indebted to the plaintiff, from whatsoever cause, the following property:

"7.

7.1             PORTION 29 OF THE FARM DOORNPOORT 295, REGISTRATION DIVISION J. R., PROVINCE OF GAUTENG, MEASURING 1,0868 HECTARES, HELD BY DEED OF TRANSFER T53473/2005, is mortgaged under First Mortgage bond with number [B…], a copy of which is annexed hereto and marked Annexure  "D1";

7.2               ERF 248 MODELPARK TOWNSHIP, REGISTRATION DIVISION J. S., PROVINCE OF MPUMALANGA, MEASURING 1192 SQUARE METRES, HELD BY DEED OF TRANSFER T156317/2004, is mortgaged under First Mortgage Bond with number 8 39176/2006, a copy of which is annexed hereto and marked Annexure "D2" (also known as […] D. W. A., M.,  MPUMALANGA  PROVINCE)"

[7] The  second  defendant  also mortgaged  her  property.  It  is, however, unnecessary to deal further with the second defendant who, it is said, has been sequestrated.

[8] The plaintiff  contends that it lent and advanced to the principal debtor the amount which amounts to R 3 327 241.80 as at 23 July 2014, subject   to the further payment of interest on the said amount at the rate of 17.25% (Prime then 09.25% plus 08.00%) linked; per annum, the said interest to be calculated and capitalized monthly, from 24 July 2014 to date of payment, as evidenced by a certificate signed by a Manager of the plaintfif, annexed to the Particulars of claim as Annexure "B".

[9] The plaintiff alleged that it complied with its obligations in terms of the written  agreement  by  lending  and  advancing  the  monies  to  the  principal debtor in accordance with the agreement. The principal debtor, according to the plaintiff, defaulted and the default resulted in the institution of this action which the first and third defendants are defending.

[10] The   plaintiff,   after   the   first   and  third  defendants   entered  their appearance to defend, brought this application for summary judgment which the first and third defendants are also opposing.

[11] The first and third defendants have delivered their opposing affidavit.

[12] For convenience, I shall refer to the parties as the plaintiff,  the first and third defendants.

[13] The  first  defendant   also  represents   the  third   defendant  in  their opposing affidavit.

[14] They deny that they entered their appearance to defend purely for the purposes of delay adding that they have bona fide defence/defences against the plaintiffs claim. They raised two points in limine.

[15] They, in the first point in limine, allege that Lizett  Maud  Eva,  the deponent to the affidavit in support of the application for summary judgment, failed to identify the specific account number [4...] which is referred to in the combined summons. They contend that the inference that can be drawn is that the plaintiff uses a "pro forma affidavit" for purposes of summary judgment. Their conclusion is that the plaintiff has not complied with the requirements of rule 32. This is incorrect. One need only look at  the  Particulars of Claim and the annexures to realise that there is a link between the deponent's affidavit and the combined summons. Reference to  the  account number is adequately made in the Particulars of Claim and the annexures thereto. The notices in terms of Section 129  of  the  National Credit Act, 34 of 2005 specifically refer to the account number while the affidavit in support of the application for summary judgment, in paragraphs 8 and 9 refer to the notices in terms of Section 129 of the Act.

[16] The first defendant, in his opposing affidavit, states that his wife to whom he is married out of community of property in terms of the Matrimonial Property Act, 88 of 1984 has been sequestrated. The plaintiff, according to him, does not reveal if it lodged a claim against the insolvent estate of the second defendant based on the cause of action set out in the combined summons.  It is, according to him, further unclear if the plaintiff received    any dividend and what the dividend is. This does not assist the first and third defendants. The first defendant is the one who would know if a claim was lodged and what the dividend was, if any was received by the plaintiff. His wife would have disclosed this to him.

[17] The first defendant, in his opposing affidavit, states that two fixed properties that he mortgaged have already been sold and that the plaintiff is aware of this. The first defendant, further in paragraph 24 of his opposing affidavit states that "the transferring attorney, regarding the property mentioned  in paragraph  13.1  referred  to  in  paragraph  23  of  his affidavit,

already made payment of R 296 826 00, directly to the Applicant's (plaintiff's) attorneys on 10 November 2014. What the first defendant does not say is as to what happened to the proceeds of the sale of the second mortgaged property. The question which immediately springs to mind is as to why this is not disclosed. One can only safely assume that the plaintiff did not receive the proceeds of the sale of the second property.

[18] The fact that the properties have been sold does not seem to be denied. This then has the effect of making it improper for the Court to make  an order against the first defendant declaring the two properties specially executable.

[19] Prayers 3 and 4 clearly cannot be granted if the properties have, indeed, been sold.

[20] Prayers 1 and 2 deserve special attention. If the plaintiff has received R 296 826.00 or the first defendant persists that the money, indeed, has been paid directly to the plaintiff's attorneys then leave to defend in respect of the R 296 826.00 has to be granted to the first and the third defendants. As I demonstrated above it does not appear that any money in respect of the second property was paid over to the plaintiff to warrant the granting of leave to defend in respect of that money.

[21] From R 3 327.241.80 we need to deduct R 296 826.00 and this gives us the balance of R 3 030 145.80 which is the amount that the plaintiff is entitled to.

[22] The first defendant's last contention is that there is no written agreement as Annexure "A1" is a "banking facility letter'. Annexure "A2, according to the first defendant, has not been signed by the plaintiff. It must  be remembered that this documents are related. We have these documents on the one hand and the suretyships on the other hand. They all relate to the same agreement. It is also noteworthy that this point was never argued when the matter was heard.

[23] The points in limine and the bona fide defences, in my view, have no merit and should, be accordingly, be rejected.

[24] I have amended the amounts in prayers 1 and 2 of the application for Summary Judgment to read R 3 030 415.80 because leave to defend has to be granted in respect of the amount of R 296 826.00.

ORDER

[25] The following order is made:

1.           An order is granted in terms of prayers 1 and 2 as amended and prayer 5 of the application for Summary Judgment dated 3 October 2014.

2.           The first and the third defendants are granted leave to defend in respect of the amount of R 296 826.00.

_____________________

M. W. MSIMEKI

JUDGE OF THE HIGH COURT OF SOUTH AFRICA

GAUTENG DIVISION OF THE HIGH COURT,

PRETORIA

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