Absa Bank Limited v Sipho

• Jurisdiction: South Africa
• Judge: Nzimande AJ
• Judgment Date: 19 March 2014
• Docket Number: 9734/12
• Court: KwaZulu-Natal High Court, Pietermaritzburg
• Hearing Date: 24 February 2014
• Citation: 2014 JDR 0583 (KZP)

Nzimande A J:

[1]

The applicant is ABSA Bank Ltd, a bank duly registered and incorporated as such, with its principal place of business situated at Ground Floor, Absa Towers East, 170 Main Street, Johannesburg.

2014 JDR 0583 p2

Nzimande A J

[2]

The first respondent is Dumisani Sipho Derrick Shabalala N.O. and the second respondent is Beatrice Otrina Nthombenhle Shabalala N.O., both cited in their capacities as the trustees of the Othandweni Family Trust (IT No. 1323/2005).

[3]

The third respondent is Dumisani Sipho Derrick Shabalala, an adult male farmer, whose full and further particulars are unknown to the applicant, but who resides on the property owned by the Othandweni Family Trust at Othandweni Farm, Old Greytown Road, Pietermaritzburg. The fourth respondent is Beatrice Otrina Nthombenhle Shabalala, an adult female, wife of the third respondent, who resides with the third respondent

[4]

The applicant seeks judgment against the respondents jointly and severally for the amount outstanding on a mortgage loan agreement, together with an order declaring the mortgaged property specially executable. It is alleged that the Trust has breached the terms and conditions of the loan agreement in that it has failed to pay its monthly instalments. As a result of the breach, as at 01 July 2012 the arrear instalments were R350,014.26 and the balance owing was R6,553,916.91 plus interest calculated at the rate of 7.5% per annum, capitalised monthly from 21 July 2012 to date of payment. The respondents' late filing of their practice note and their short heads of argument was condoned as there was no opposition thereto. Mr. Bedderson, who appeared for the respondents, abandoned the argument

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Nzimande A J

regarding the non-joinder of the Curator which had been raised in the papers.

[5]

It is common cause that on 16 August 2007, at Pietermaritzburg, the applicant and the Othandweni Family Trust (the Trust) concluded a written loan agreement in terms of which:

(a)

the applicant loaned and advanced to the Trust the sum of R16,700,000.93;

(b)

the Trust's initial monthly instalment was the sum of R197,411.24;

(c)

the Trust's monthly mortgage instalment was reduced during 2009 to R105,000.00 after a lump sum payment of R10,700,000.00 had been paid directly into the mortgage bond by the third respondent. The loan period of two hundred and forty months remained unchanged after this payment.

It is also common cause that no instalments were paid by the Trust, since January 2011. That on 19 August 2010 this Court granted a restraint order in terms of Act 121 of 1998 against the third and fourth respondents and others under Case No. 6447/2010. Amongst other things, the order referred to any cash amounts owned and held by the respondents, whether directly or indirectly, including any cash amounts as might be found in any bank account held by any banking institution on behalf of the respective respondents.

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Nzimande A J

[6]

The only issue to be considered by this Court is whether the applicant has proved a breach of the mortgage loan agreement.

[7]

The applicant's cardinal argument is that the Trust was obliged to pay the loan and it...