Absa Bank Ltd v Chawasarira and Another (479/2013) [2017] ZAGPPHC 921 (14 December 2017)

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,

NORTH GAUTENG DIVISION, PRETORIA

CASE NO: 479/2013

Not reportable

Not of interest to other judges

Revised.

14/12/2017

ABSA

BANK LTD Plaintiff/Applicant

and

M M CHAWASARIRA 1st Defendant/ Respondent

B N CHAWASARIRA 2nd Defendant/Respondent

JUDGMENT

MSIMEKI J,

INTRODUCTION

[1] This is an application for summary judgment in terms of which the plaintiff seeks summary judgment against the defendants jointly

and/or severally, the one paying the other to be absolved for:

"1. Payment in the amount of R901,551.52;

2. Payment of interest on the amount of R901,551,52 at the agreed rate of 8.95% per annum from 13 December 2012 to date of payment, aforementioned date inclusive;

3. An order declaring:

ERF […] ERASMUS EXTENSION 8 TOWNSHIP REGISTRA TJON DIVISION: J.R.,

GAUTENG PROVINCE

MEASURING: 1 000 (ONE ZERO ZERO ZERO) SQUARE METRES HELD BY DEED OF TRANSFER T051984/ 2009 SUBJECT TO THE CONDITIONS THEREIN CONTAINED

Specifically executable;

4. an order in terms whereof the Registrar is directed to issue a Warrant of Execution against Immovable Property mentioned in prayer (1) above, in terms of Rule 46 of the Uniform Rules of Court;

5. Costs to be taxed;

6. Further and/or alternative relief"

BRIEF

BACKGROUND

[2] A mortgage bond was registered over the immovable property referred to in paragraph 1 above. The bond would be security for all the amounts that the respondent (defendants) would be indebted to the applicant (plaintiff). The plaintiff contends that an amount of R901,551.52 is due owing and payable by the defendants in terms of mortgage bond number 8328-27/09 which was duly passed and registered over the aforement ioned property in favour of the plaintiff. The plaintiff further contends that the arrears as at December 2012 amounted to R50 624,54. It is further the plaintiff s contention that Section 129 of the National Credit Act, No 34 of 2005 ("the Act") was complied with.

[3] I, in this judgment , shall refer to the parties as plaintiff and defendants .

[4] The application for summary judgment, initially, was enrolled for 21 August 2015 . The defendants filed their affidavits resisting the application late resulting in the application being postponed to 6 October 2015. The costs were reserved.

[5] The defendants failed to enter their appearance to defend. The plaintiff then applied for judgment by default.

[6] The defendant, on 19 June 2015, before default judgment was granted, filed a Notice of Intention to oppose the application for default judgment on the merits. Although this is not said in so many words, the idea, in my view, was to indicate their intention to defend the action.

[7] The plaintiff, understanding the "Notice of Intention to Oppose", to mean the defendants' intention to defend the action, applied for summary judgment within the time stipulated by Rule 32(2) of the Uniform Rules of Court.

[8] The defendants, on 19 August 2015 , served the Notice of Intention to oppose the application for summary judgment on the plaintiff's

attorneys. The application was postponed to 6 October 2015.

[9] The defendants, in their points in limine, oppose the application for summary judgment on the basis that they did not enter an appearance to defend . Their second point in limine is that the application was brought out of time.

[10] As alluded to above, the defendants were opposing the granting of judgment by default. Normally, this is done by entering an appearance to defend. The defendants, in their minds, must have had the intention to defend the action. Once this became clear to the plaintiff's attorneys, they applied for summary judgment which the defendants opposed.

[11] The defendants' contention that the plaintiff's application is irregular cannot be correct because they failed to invoke Rule 30(1) and (2) which was open to them in matters of this nature. Indeed, as correctly submitted on behalf of the plaintiff, the points in limine raised by the defendants have become academic in nature.

[12] The defendants dispute Ms Thea Louise Williams personal knowledge of the facts of this action, the cause of action and the underlying transactions which gave rise to the facts and the cause of action. Ms Williams is the deponent to the affidavit that supports the summary judgment application. As correctly submitted, on behalf of the plaintiff, the deponent properly qualifies her position as the manager in the home loans recoveries secured collections and retail collections department. She clearly points out in what manner she perused and confirmed the details of the account on the computer system and how such information is captured. She justifiably claims to have personal knowledge of the facts of the matter and the cause of action which, according to her, are true and correct. She, in this regard, is supported by the following cases Standard Bank of South Africa Limited v Kroonhoek Boerdery CC and Two Others, Case Number 23054/2011 North Gauteng High Court (unreported); Maharaj v Barclays National Bank limited 1976 (1) SA 418 (A) at 423A-424D and Firstrand Bank Limited v Beyer 2011 (1) SA 196 (GNP).

[13] The defendants contend that they do not owe the plaintiff "the alleged outstanding amount". In sum, the defendants contended that:

1. They had financial problems in 2012 which existed for 6 months.

2. They, at the time, experienced financial problems and were supposed to pay R8 400.00.

3. Their financial position changed and they communicated this to the plaintiff's employee, Welhemmah Nyathi, who requested them to pay R9 300 00 which would cover part of the arear amount. (See: annexure GG1 to the defendants affidavit).

4. They offered to make monthly payments and the arrangement was accepted in the sum of R14 000 00 with effect from 13 June 2015 . The defendants paid R15 000 00 in July 2015. The offer is annexure GG20 to the defendants opposing affidavit.

[14] The defendants, in their affidavit opposing the summary judgment application, contend that an arrangement was reached with the plaintiff in terms of which they would pay R2 600 00 per month instead of the agreed monthly instalment of R9 597 .62. The

defendants are criticised for failing to indicate when exactly such payment arrangement was concluded.

[15] It is clear that two further arrangements were made in terms of which the defendant would pay the plaintiff. Annexures GG1 and GG20 contain such arrangements. Annexure GG1, appearing on page 60 of the papers, discloses that with effect from 2 November 2012, the defendants would pay R9 300 00 per month. Annexure GG20, appearing on page 79 of the papers, clearly states that the defendants offer to make monthly payments in the sum of R14 000 00 was accepted by the plaintiff. Such payment would commence on 13 July 2015. The defendants, indeed, paid R15 000 00 in July 2015.

[16] According to annexure GG20, the outstanding balance as at 13 July 2015 was R836 628.32 while the arrears amounted to R48 456 97. This is evidence demonstrating that the defendants were paying as arranged and agreed.

[17] The plaintiff, in annexure GG20, states that their acceptance of the increased repayments was not an agreement to stop the legal process for the recovery of the outstanding balance even if they might, as an indulgence, defer the legal process at some point. The annexure further stats that "this is not a novation of our rights neither is it a novation of the original loan agreement. This, according to the plaintiff is a final indulgence afforded to the defendants to bring their "home loan account up to date".

[18] Annexures GG2-18 appearing on pages 62-77 of the papers and GG19 demonstrate payment by the defendants.

[19] The defendants produced proof of payments and the payment arrangement which was accepted by the plaintiff. With this arrangement in mind, it definitely will not be proper to grant summary judgment in favour of the plaintiff. It will, however, be prudent to postpone the application sine die. This will enable the parties to determine if the defendants have complied with the latest payment arrangement which was accepted by the plaintiff.

[20] It seems to me that it will be proper, regard being had to the nature of the case, to make no order as to costs.

ORDER

[21] I, in the result, make the following order:

1. The application for summary judgment is postponed sine die.

2. There will be no order as to costs.

______

M. W. MSIMEKI

JUDGE

OF THE HIGH COURT OF SOUTH AFRICA

GAUTENG DIVISION OF THE HIGH COURT,

PRETORIA