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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

IN THE HIGH COURT OF SOUTH AFRICA,

MPUMALANGA DIVISION, MIDDELBURG

(LOCAL SEAT)

CASE NO: 4708/2018

In the matter between:

ABSA BANK LIMITED                                                                    PLAINTIFF/APPLICANT

and

TENANE CHARLES MAKOLA                                              DEFENDANT/RESPONDENT

JUDGMENT

 

BRAUCKMANN AJ

 

INTRODUCTION

[1] This is an application for summary judgment launched prior to the amendments of the rules of this court which came into operation on 1 July 2019.  This summary judgment application was duly opposed and an opposing affidavit was filed by the respondent.  The application was postponed, and case managed to the opposed roll, after which the applicant launched a separate application as contemplated in terms of Rule 46, read with Rule 46A, of the Uniform Rules of this court (The Rules).  The respondent is opposing both applications.

[2] The application for summary judgment was initially enrolled to be heard in this court on 15 April 2019.  The reason for the postponement was that the court required heads of argument to be submitted by the parties as to whether the court could entertain the application for summary judgment without the necessary information required in terms of Rule 46A being placed before the court.  At the stage that the application for summary judgment was launched, and was to be heard for the first time, this court was still functioning as a circuit court of the Gauteng Division Pretoria.  A full bench of the Gauteng Local Division, Johannesburg, handed down the judgment in Absa Limited vs Mokebe, case no 00612/2018 which held that the court could not entertain applications for monetary judgment separate from the declaration of fixed property executable.      

[3] This triggered the applicant’s application in terms of Rule 46A.

[4] The applicant’s case, in terms of its particulars of claim, is that the applicant and respondent agreed that the applicant would provide the respondent with a private bank facility. In terms of the agreement the following would apply:

4.1 The applicant made available to the defendant a facility amount of R1 300 000.00;

4.2 The facility amount was provided in account number […], together with which the respondent had to operate a separate transactional account with the applicant;

4.3 The facility account will be utilised to ensure that the minimum balance is maintained on the transactional account.  This entails that the applicant will, insofar as necessary, sweep monies from the facility account to the transactional account;

4.4 The facility agreement stipulated that minimum monthly instalments of R10 473.00 was repayable in respect of the facility account agreement.

4.5 As security for the indebtedness incurred in terms of the facility agreement, and in terms of the provisions of the facility agreement, the Respondent caused a mortgage bond to be registered in favour of the Applicant over certain immovable property.  The mortgage bond agreement specifically contained a clause stipulating that a certificate of indebtedness signed by a manager will serve as prima facie proof of the indebtedness amount due.

4.6 The Respondent defaulted with the terms of the facility agreement, in that the Respondent failed to ensure that the minimum monthly instalment amount is paid alternatively caused the facility amount to become in excess of maximum available amount.

4.7 Consequently, the Applicant commenced enforcement steps with the dispatch of a notice as contemplated in terms of Section 129 of the National Credit Act, 34 of 2005 (hereinafter referred to as “the NCA”).  There has been compliance with the pre-enforcement provisions of the NCA.  The Respondent does not take issue with the manner in which the said notice was dispatched.

4.8 No response as contemplated in terms of the NCA was forthcoming. Consequently, the main action was instituted. The Respondent entered an appearance to defend, on 19 December 2018, in response to which the present application for summary judgment was delivered on 14 January 2019 (14 court days later). There has been compliance with the procedural requirements of Rule 32.

 

INSTITUTION OF SEPARATE APPLICATION IN TERMS OF RULE 46 AND 46A OF THE RULES

[5] Before the court heard arguments in this regard the applicant’s counsel Adv. Markram-Jooste, and Adv. Cilliers on behalf of respondent, agreed that the double-barrelled procedure adopted by the applicant in this matter will not be objected to by the respondent.  I am of the opinion that the agreement is good in law having regard to the unreported judgment of Van Eeden AJ in Absa Bank Limited v Sawyer[1] where the court stated:

‘13. Mr Scott’s submission correctly identified an uneasiness between action procedure and a subsequent opposed application for summary judgment on the one hand, and the provisions of rule 46A on the other. A plaintiff is fully within its rights to pursue an application for the money judgment and the order of executability in terms of rule 32, but rule 46A requires an application on notice of motion for the order of executability substantially in accordance with Form 2A of Schedule 1 (rule 46A(3)(a)).  In addition, the Practice Manual (Gauteng Johannesburg) requires the chapter 10.17 affidavit.

14. In my view the uneasiness is more apparent than real. A plaintiff pleading its cause of action in a combined summons is compelled to plead both circumstances entitling it to the money judgment and circumstances entitling it to an order of executability.  Although the order of executability is ancillary to the money judgment, the latter relief forms an integral part of the cause of action.[2] It follows that when summary judgment is applied for and the cause of action is verified, the deponent verifies both the money judgment and the order of executability. The chapter 10.17 affidavit is a separate affidavit not falling foul of rule 32, which supports the relief sought in respect of executability. A court is eventually faced with a hybrid procedure requiring adherence to rule 32, rule 46A and the Practice Manual.

15. I do not read rule 46A as excluding a plaintiff’s right to apply for summary judgment, nor that the plaintiff must institute a further application under rule 46A in order to follow Form 2A.  In my view the summary judgement application and affidavit filed in compliance with chapter 10.17 constitute substantial compliance by the plaintiff of its obligations contained in rule 46A. Together they allow the court to discharge its duties imposed by rule 46A and to strike a balance between the competing interests of the plaintiff and defendant in a matter where the executability of a primary residence is at stake. In this matter the defendant also availed herself of the opportunity to place a supplementary affidavit before court after receipt of the chapter 10.17 affidavit.  In my view nothing would be achieved by insisting that the plaintiff should follow the motion procedure prescribed by rule 46A.  All the information required by rule 46A is already before court.

16. In the premises I find that the plaintiff was fully entitled to apply for both orders in summary judgment proceedings in terms of rule 32. The summary judgment application, read with the affidavit filed in terms of chapter 10.17, constitute substantial compliance with the provisions of rule 46A. Rule 46A does not exclude action proceedings for an order declaring a primary residential property executable, but the requirements of rule 46A must still be complied with before the primary residence of the defendant can be declared executable’.                

[6] This was supported in the decision of Changing Tides 17 (Pty) Ltd NO v Rademeyer and Another[2]

“[18] The court in Sawyer found that the plaintiff in that matter was fully entitled to apply for both orders in summary judgment proceedings in terms of Rule 32.   I am in agreement with this judgment. The summary judgment application, read with the affidavit filed in terms of chapter 10.17 constitute substantial compliance with the provisions of Rule 46A. The rules exist for the court, not the court for the rules. The further affidavit only deals with execution and not with the money judgment.

[19] Courts should not be bound inflexibly by rules of procedure unless the language clearly necessitates this.  The rules are not intended to be inflexible; where it is necessary to relax them in order to do justice, it is competent for the court to do so; otherwise the court would become the slave of rules designed and intended to facilitate its task.  The rules should not be interpreted and applied in a formalistic manner that fails to take these objects into account.

[20] In short, in a summary judgment application a court is not only entitled but also obliged to consider the Rule 46A application and accompanying affidavit to determine whether the order in the summary judgment application should include an order to declare the immovable property executable”.  

[7] I accordingly find that the said judgment constitutes a good law and that both applications can be heard simultaneously. 

[8] The respondent raised various points in limine which, by the respondent’s counsel own admission, does not constitutes points in limine but actually defences that goes to the merits of the matter.         

[9] Respondent’s counsel submitted that he will persist with the defence that the respondent has a bona fide defence.  It appeared that the respondent conceded that the balance of the defences raised is not good in law alternatively does not constitute points in limine, and was accordingly abandoned.

 

GENERAL REMARKS REGARDING APPLICATIONS FOR SUMMARY JUDGMENT

[10] It is trite that a defendant/respondent in summary judgment applications is required to fully disclose the nature and grounds of its defence and the material facts it relies upon.

[11] In Breytenbach v Fiat SA (Edms) Bpk[3] it was decided that a defendant cannot approach the court with bold, vade and sketchy defences.  

[12] Summary judgment procedure is not intended to deprive a defendant with a trialable issue or a sustainable defence of his/her day in court.  In Joob-Joob Investments (Pty) Ltd v Stocks Mavundla Zek Joint Venture[4] it was held that:

“[32] The rationale for summary judgment proceedings is impeccable. The procedure is not intended to deprive a defendant with a triable issue or a sustainable defence of her/his day in court. After almost a century of successful application in our courts, summary judgment proceedings can hardly continue to be described as extraordinary. Our courts, both of first instance and at appellate level, have during that time rightly been trusted to ensure that a defendant with a triable issue is not shut out. In the Maharaj case at 425G-426E, Corbett JA, was keen to ensure first, an examination of whether there has been sufficient disclosure by a defendant of the nature and grounds of his defence and the facts upon which it is founded. The second consideration is that the defence so disclosed must be both bona fide and good in law. [Own emphasis].  A court which is satisfied that this threshold has been crossed is then bound to refuse summary judgment. Corbett JA also warned against requiring of a defendant the precision apposite to pleadings. However, the learned judge was equally astute to ensure that recalcitrant debtors pay what is due to a creditor.

[33] Having regard to its purpose and its proper application, summary judgment proceedings only hold terrors and are ‘drastic’ for a defendant who has no defence. Perhaps the time has come to discard these labels and to concentrate rather on the proper application of the rule, as set out with customary clarity and elegance by Corbett JA in the Maharaj case at 425G-426E.”  (Own emphasis).

[13] As dealt with in argument the only defence persisted with by the respondent was that he had a bona fide defence.  That is in respect of the application for monetary judgment.

[14] The defendant/respondent stated that upon reading of the applicant’s combined summons and application for summary judgment the plaintiff/applicant neglected to set out comprehensively a statement of account in support of his claim as contained in the notice of motion and further that the plaintiff has failed to take the court into his confidence. 

[15] The plaintiff refers to the facility letter attached to plaintiff’s particulars of claim.  He stated that the mere certificate of indebtedness could not suffice for purposes of summary judgment.  It was also, according to the respondent, not agreed that such a certificate of balance would provide prima facie proof of the respondent’s indebtedness, losing sight of the content of the bond registered over the property.

[16] The respondent’s main complaint is that the applicant unilaterally closed the accounts of the defendant which accounts were meant to service the ABSA private 1 banking facility as was a requirement under the agreement between the applicant and the respondent for that purpose.  The respondent, so goes the argument, as a result of the closure of the account, was prejudiced as the plaintiff/applicant has breached its own agreement with the defendant, and the defendant is accordingly unable to verify the correct amount outstanding under the agreement.  According to the respondent, attempts to reopen the aforesaid accounts were unsuccessful and no response was forthcoming from the applicant.

[17] The respondent, in this regard, allege and stated that due to the closure of the account by the applicant, the applicant made performance by the respondent impossible.  Respondent states that the respondent, after closure of the accounts could not pay his instalments of at least R10 473.00 as agreed with the respondent.  The respondent’s only defence to the merits, which Mr Cilliers on behalf of the respondent alleges is a good defence in law, is summed up in paragraph 8.7 of the opposing affidavit to the summary judgment application.  In the paragraph the respondent states:

“The minimum monthly instalments of not less than R10 473.00 cannot be debited due to the plaintiff’s conduct (closure of the accounts). Further, the closing of the facility by the plaintiff is aimed at precluding defendant from repaying the monthly instalments and for the plaintiff to proceed to foreclose”.  (Own emphasis).

During argument, and when I engaged with counsel for the respondent, he could not deny that the plaintiff was entitled, upon a breach of the agreement between applicant and respondent, to rely on the breached clause contained in the summons.  In terms of clause 13 of the facility agreement it was agreed that the respondent will be in default under the agreement if he did not pay any amount payable under this agreement on due date and further, in terms of clause 14 of the agreement it was agreed that if the respondent were in default, the applicant may refuse to advance any amount borrowed but not paid out at the time of default.

[18] If the respondent is in default notice may be given in terms of the National Credit Act 34 of 2005(“The NCA”) (Section 1-9) thereof of the respondents rights in terms of the said sections (1-9 and 130) of the NCA and thereafter, if the respondent remains in default, start with proceedings against the respondent to pay all amounts due under the agreement and to exercise its rights under the covering mortgage bond.  The applicant will also be entitled to take steps to realise any asset pledged or hypothecated under the bond registered over the respondent’s fixed property.

[19] The respondent, dealing with the defence of a denial of the indebtedness and the respondent’s bona fide defence, denies that applicant set out properly what is required in law in respect of its cause of action and indebtedness.  This is incorrect. 

[20] It is significant to note that the respondent, in its opposing affidavit, blames the applicant for not providing him with statements.  The respondent does not deny the conclusion of the facility agreement nor the registration, in terms of the facility agreement, of the mortgage bond over his fixed property.  The mortgage bond agreement contains the so-called “certificate of balance clause” which provides that a certificate of balance will constitute prima facie proof of the indebtedness of the amount which is claimed[5].

[21] In as far as the breach of the agreement is concerned, the fact that the agreement was breached by the respondent is stated in the section 129 and 130 of the National Credit Act letter addressed to the respondent, attached to the particulars of claim.  In terms of the particulars of claim it was also alleged that:

“The defendant did not comply with his obligations in terms of the aforementioned agreement.  The amount as mentioned above is due and payable in terms of the agreement.”  The applicant confirmed its cause of action in its founding affidavit in the summary judgment application.

Apart from a bald denial no specific facts are contained in the respondent’s opposing affidavit denying the applicant’s entitlement to accelerate payment in terms of the agreement. 

[22] The amount due was also stated in the applicant’s particulars of claim and more specifically paragraph 4.2 thereof which states that R1 320012.46, together with interest at the rate of 9.25%, from 28 November 2018 to date of payment, was indebted to the applicant as at 27 November 2017.  Annexure B to applicant’s particulars of claim is a certificate of balance in terms of clause 9 of the bond agreement, confirming the amount due to applicant.   

[23] The applicant certainly does not have to deconstruct the manner in which a claim amount was constituted in the pleadings if the claim amount is not placed in dispute.  So to the interest rate.  Only when a claim is sufficiently placed in dispute will the applicant be required to deconstruct and prove the manner in which the claim amount has been constituted[6].  The respondent does not place the indebtedness in dispute.  Although the respondent complains about not receiving bank statements (which he can access on the internet in any way) he does not provide one piece of evidence that the certificate of balance is incorrect.  Nor does he indicate an error in the calculation or deny that he stopped paying the instalments due to the applicants.

[24] In NPGS Protection and Security Services CC and Another vs First Rand Bank Ltd[7] it was held that:

“Rule 32(3) of the uniform rules requires an opposing affidavit to disclose fully the nature and grounds of the defence and the material facts relied upon therefor. To stave off summary judgment, a defendant cannot content him or herself with bald denials, for example, that it is not clear how the amount claimed was made up. Something more is required. If a defendant disputes the amount claimed, he or she should say so and set out a factual basis for such denial. This could be done by giving examples of payments made by them which have not been credited to their account”.

[25] I am also of the opinion that, in terms of Rule 35(12) the respondent could have sought discovery and production of the bank statements from the applicant.  No explanation in its opposing affidavit to this effect is given nor could his counsel provide an explanation in this regard.  

[26] I fail to understand how the applicant can lament about the closure of his bank accounts if, as provided for in the agreement with the respondent, he was in breach of the agreement, and the applicant was entitled to close his accounts.  It has also become trite law in South Africa that a financial institution may close a client’s account if it so wants[8].

[27] The respondents defence as appears from paragraph 8.7 of his opposing affidavit implies malice on the part of the applicant.  No facts are provided to this court why the applicant would close the respondent’s account to preclude him from paying his instalments, and for the plaintiff to proceed with foreclosure.  This implies that the applicant wants to foreclose on the respondent for an ulterior purpose.  One would have expected the respondent to give factual background as to why the applicant would act in such a mala fide and irresponsible manner.  The respondent’s defence with regards to the indebtedness is, to say the least, not bona fide, and totally untenable.    

[28] I reject the respondent’s defence implying that the plaintiff was mala fide in closure of its account. 

[29] Having found that the respondent does not have a bona fide defence and that the balance of the points in limine does not constitutes points in limine I now turn to the Rule 46 application.

[30] In terms of Rule 46A of the Rules of this Court, certain requirements has to be complied with by an applicant before this court can order a writ of execution to be issued by the Registrar of the Court to attach the respondent’s fixed property, if the fixed property is the respondent’s primary residence.  In opposition to the applicant’s Rule 46 application the respondent’s states that his objections to the declaration of executability are the following:

“1. It is submitted further that the plaintiff would sell the property for a far too low price in order to hold the defendant accountable for the remainder of the outstanding balance ostensibly owned.

2. The defendant and all lawful occupiers occupying the property with permission of the defendant would be left to the streets whilst the plaintiff would have sold the immovable property for far too less a price in order to keep the defendant indebted to it.”

[31] In its affidavit opposing summary judgment it also raises, as a “point in limine” his constitutional right to adequate housing.     

[32] He states in the opposing affidavit “for present purposes it is appropriate to record that I am unable to secure alternative accommodation for myself and my wife and children should the immovable property be declared specially executable and subsequently sold by the plaintiff, notwithstanding the immense upset and trauma that it could cause to my wife and children”.

[33] He also alleges that he is currently over indebted without giving any particulars of the over indebtedness or his income.  

[34] The respondent’s allegations regarding his right to adequate housing, and the fact that the family will be left destitute and living on the streets without adequate housing is rejected.  The respondent did not provide sufficient particulars in respect to his right to housing or the reserve price to be set by this court.  In respect of the involvement of a debtor in the process of determining whether the court should declare a property executable and set a reserve price the sentiment laid down in First Rand Bank Limited vs Folscher and Another and Similar Matters[9] was recently repeated by the majority ruling of the Supreme Court of Appeal in the NPGS Protection and Security Services matter.  The court held (in adjudicating the factual matrix, similar to the present matter, that is a summary judgment application where execution relief was also sought, that[10]:

“[55] From this review of the relevant jurisprudence, it is clear that in a case of an application for default judgment, a court, in its discretion, needs to ensure that it is possessed with adequate information to enable it to grant a remedy which complies with these requirements. In the case of an application for summary judgment, provided the creditor has complied with the requirements of rule 46(A), there is an onus on the debtor, at the very least, to provide the court with information concerning whether the property is his or her personal residence, whether it is a primary residence, whether there are other means available to discharge the debt and whether there is a disproportionality between the execution and other possible means to exact payment of the judgment debt.

[63] In the present case this court is asked to find that but one mention by counsel from the bar in the court below is sufficient to avoid an order of execution. The summary judgment procedure enables essential information to be placed before a court to enable it to fulfil its function in adjudicating on defences raised. In the present case, extensive facile defences, which were dressed up as being technically proficient, were the only ones presented resisting summary judgment. One would have thought that a business person in the position of the second appellant, when faced with the loss of his home, would, at the very least, have expressed his anxiety about the consequences thereof. It is the one thing that is conspicuously absent from the affidavit. While it is true that the court below misdirected itself in relation to whether or not an individual rather than a company was affected, it is equally clear that the court was unimpressed with the mere submission from the bar about the loss of a primary residence without any further information being presented. It was clearly seen by the court below as a ruse to escape the consequences of default.  (Own emphasis). 

[67] On the facts of this case, the complete failure by the second appellant to avail himself of rights which were expressly drawn to his attention in the summons issued by the respondent dictates to the contrary. It bears repeating that there was a specific prayer in the summons requesting an order of execution. In imposing an obligation upon a court in this case when one vague and unspecified mention of a personal residence without more suffices as a defence or even a justification for remitting a case back to the court a quo, would in my view, cause significant uncertainty, and arguably serious damage to the efficient provision of credit in the economy.”

[35] The respondent did not provide this court with any reasons why the property should not be declared specifically executable.  He does not provide the court with his income, his sources of income, the income of his spouse, his debts or any other reason why he would not be able to afford alternative accommodation for his family and himself.  The respondent’s ipse dixit that he would be left on the streets is not sufficient. 

[36] So to the respondent fails to provide this court with any information regarding the declaration of executability and reserve price to be set for the property. 

[37] The respondent has an onus to prove that his right to adequate housing as provided for in section 26 of the Constitution will be disturbed.

[38] When a court exercise judicial oversight to declare the debtors home executable, the court, where the property sought to be attached is the primary residence of the judgment debtor must consider all facts as stated in Rule 46A.

[39] The respondent put his residence up as security for a private banking account which he utilised for six years.  The purpose for which it was used is not known to the applicant but the said bank accounts are normally used by individuals who are business men for business purposes. 

[40] As Froneman J, in Gundwana vs Steko Development CC and Nedcor Bank Limited[11] stated:

“It must be accepted that execution in itself is not an odious thing. It is part and parcel of normal economic life. It is only when there is disproportionality between the means used in the execution process to exact payment of the judgment debt, compared to other available means to attain the same purpose, that alarm bells should start ringing. If there are no other proportionate means to attain the same end, execution may not be avoided”.

The respondent is in the best position to advance contentions to fully inform the court of factors that should be taken into account when the court considers the facts to declare the property executable in its judicial oversight role.  See Folscher supra at par 41. In this matter the respondent, after 6 (six) years, owes applicant more than when the agreement was entered into. 

[41] The respondent’s counsel submitted that the court must first order execution against movable property.  That would prevent the respondent from losing his residence.  It can also, once execution against movables are completed, reduce the indebtedness of the respondent.

[42] The court would have considered same if the court was made aware of movable assets belonging to the respondent.  The court has no information in this regard and ordering execution against movables might be a waste of time and money.  The court cannot speculate as to moveable assets that is owned by the respondent.

[43] Respondent simply failed to take this court into his confidence with the facts surrounding his personal circumstances, that of his family, his income and his assets. 

[44] Therefor the court can only, in exercising its judicial oversight, in this regard find in favour of the applicant.

[45] To execute against the movable property will in any way not happen overnight.  If the respondent pays the arrears and/or catches up with his instalments, the agreement will be automatically reinstated and the sale in execution cancelled.  The respondent is therefore not left remediless.

[46] In considering the reserved price, the court took note of the valuation attached to the Rule 46 application.  The market value of the property is indicated to be R1 600 000.00.  According to the applicant the forced sale value is R1 066 666.66 which is less than the outstanding indebtedness. The outstanding rates and taxes in respect of the property is a mere R8 831.45.

[47] I am of the opinion that an amount of R1 430 000.00 should be set as a reserve price on the property.

[48] I accordingly make the following order:

1. Judgment in favour of the applicant is granted for:

1.1 Payment of the amount of R1 320 012.46;

2. Interest on the amount of R1 320 012.46 at the rate of 9.25% per

annum from 28 November 2018 to date of payment, the said

interest to be calculated and capitalized monthly;  

3. That the immovable property knows as:

3.1 Erf […] Witbank Extension 10 Township, Registration Division J.S., Mpumalanga Province, measuring 1481 (ONE THOUSAND, FOUR HUNDRED AND EIGHTY ONE) square meters in extent and is held by the defendant in terms of Deed of Transfer Nr. T0003860/2013.

4. The Plaintiff/Registrar be authorized to issue a Writ of Execution against the immovable property referred to in prayer 3 above, to give effect to the order granted in terms of prayer 3 above.

5. That the immovable property referred to in prayer 3 above be sold in execution with a reserve price of R1 430 000.00.

6. That the defendant be ordered to pay the costs of the action and application.                                   

 

 

______________________________

HF BRAUCKMANN

ACTING JUDGE OF THE HIGH COURT

 

 

 

REPRESENTATIVE FOR THE PLAINTIFF: ADV C.J MARKRAM-JOOSTE    

INSTRUCTED BY: BIRMANS INCORPORATED        

REPRESENTATIVE FOR THE DEFENDANT: ADV J.B CILLIERS  

INSTRUCTED BY: MABHENA MADUBANY INC                         

DATE OF HEARING: 19 NOVEMBER 2019        

DATE OF JUDGMENT: 03 December 2019        

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