Firstrand Bank Limited v Motaung
| Jurisdiction | http://justis.com/jurisdiction/166,South Africa |
| Judge | Cronjé AJ |
| Judgment Date | 08 September 2023 |
| Citation | 2023 JDR 3320 (FB) |
| Hearing Date | 20 July 2023 |
| Docket Number | 5082/2019 |
| Court | Free State Division, Bloemfontein |
Cronjé AJ:
Plaintiff issued summons against the Defendant for payment of R1 986 964.70 plus interest at a variable rate of 10.15% from 15 October 2019. It seeks costs
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on attorney and client scale. It does not seek an order that the property be declared executable. The cause of action is a written loan agreement concluded on 2 September 2016.
In 2019, the Plaintiff obtained default judgment under this case number against the Defendant. That judgment was set aside by Boonzaaier AJ on 6 May 2021. The relevance of that judgment is that she found that the Plaintiff complied with section 129 of the National Credit Act (NCA). [1]
On 12 August 2022, the Plaintiff served a Notice of Bar on the Defendant’s attorneys affording him an opportunity to file a Plea.
On 7 September 2022, a fresh s 129 notice was served on the Plaintiff’s mother at his residence as he was not present. [2] By then the amount in default was R151 905.58 and the outstanding balance R2 011 099.07.
On 16 March 2023, the Plaintiff served a fresh Notice of Bar on the Defendant’s attorneys and on 28 March 2023, the Defendant filed his Plea.
On 17 April 2023, the application for summary judgment was served on the Defendant and the matter set down for hearing on 18 May 2023. The Defendant states that his opposing affidavit should only have been filed five (5) days before the matter was heard, which was 11 May 2023. He did not file it and the matter was enrolled on the unopposed roll for 18 May 2023. By agreement between the parties the application was postponed to 20 July 2023. The Defendant had to file a condonation application together with his opposing affidavit in the summary judgment application. He was ten (10) days out of time.
When the matter came before me, the legal representatives of the parties agreed that the condonation application be heard simultaneously with the main
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application. The requirements for condonation is trite and I will deal with them in due course.
The Defendant raised a plethora of defences in the form of Special Pleas/points in limine and defences. I carefully considered each of the grounds of opposition in light of the facts, the arguments and the applicable principles of law in respect of Summary Judgment.
SPECIAL PLEA – AMENDMENT OF PAYMENT TERMS AND PAYMENT
The first is a special plea is that a written agreement was concluded via email between the parties on or about 11 October 2022 in terms of which the Plaintiff “undertook to hold all further litigation in abeyance”. [3] The Defendant would pay R100 000.00 towards the arrears and thereafter instalments consisting of the instalment amount as well as an extra amount per month for a period of twelve (12) months in order to settle the full arrear amount. [4]
The arrangement was confirmed in an e-mail from the Plaintiff on 11 October 2022. It notes the proposal for payment of R100 000.00 as lump sum on the balance of R2 026 796.79. The arrears balance of R71 443.62 shall be paid over a twelve (12) month period in amounts of R5 953.63 plus an instalment of R20 405.40. The total monthly payment over twelve (12) months would be R26 359.03. [5]
The Defendant paid R100 000.00 on 11 October 2022 and thereafter R27 000.00 on 11 November 2022, R20 405.40 on 29 December 2022, R6 000.00 on 9 January 2023 and R26 000.00 on 7 February 2023. [6]
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On 4 November 2022, the Defendant’s attorneys stated:
“Our instructions are, that following the communication between our client and your client, represented by Sherika Kanhai, there was an agreement that the above action will be suspended upon our client’s payment of the amount of R100 000.00 and the balance of R51 905.58 to be paid over a period of twelve (12) months from date of payment of the R100 000.00. On the 11th October 2022 our client paid an amount of R100 000.00 and your client sent him an e-mail confirming the suspension of the action.
Our client informs us, however, that despite the suspension of the action, you proceeded with the action by delivering amended particulars of claim on the 2nd November 2022, contrary to the agreement concluded between our client and your client.” [7] [my emphasis]
In an e-mail from the Plaintiff to the Defendant on 4 November 2022, the Plaintiff referred to the Defendant’s attorney’s letter of 4 November 2022 and stated:
“It was our instruction from our client to pend legal action, but to first complete the amendment of the particulars of claim.
Legal action is not proceeding at this stage.” [8] [my emphasis]
On 27 March 2023, the Defendant stated that the e-mail of 11 October 2022 contains the “initial arrangement with a lump sum payment of R100 000.00.” [9] [my emphasis] It is apparent that when the e-mail of the Plaintiff dated 11 October 2022 that set out the monthly instalment plan of R26 359.03 (“payment plan”) is read with paragraph 1.3 of the Defendant’s Plea, the Defendant did not comply with the agreement. Only the payment of R27 000.00 exceeded R26 359.03. The other payments were all short. The Plea was signed on 27 March 2023 and by that date, the Defendant has not made any further payments. The opposing affidavit was filed on 26 May 2023. It, similarly, does not reflect any payments after 27 March 2023.
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It cannot be clearer that the obligatory monthly payments in terms of the loan agreement was not amended. Only an interim payment plan was agreed on.
The correspondence of the Plaintiff and the Defendant does not show that the action was to be withdrawn. What the Plaintiff did was to grant the Defendant an opportunity to reinstate the agreement and to pend further steps if he complies. He would in any event carry an onus in respect of not only the agreement but also payments according to the terms of the agreement that he relies on. His allegation that he remedied the breach by the payments in terms of the written agreement can be rejected. [10] His first point in limine is therefore not bona fide and is dismissed.
SPECIAL PLEA – MATTER IS MOOT AND RES JUDICATA
The second point in limine is that the matter became moot and res judicata due to the agreement and payments made. [11] As shown above he failed to comply with the agreement. His failure to pay as agreed, cannot make the issue moot. Res judicata does not find application as the indebtedness, even on his own version, was not finally settled as per the agreement.
FIRST DEFENCE – NON-COMPLIANCE WITH SECTION 129 OF THE NATIONAL CREDIT ACT
He alleges that a defective notice in terms of s 129 of the NCA was served incorrectly. He does not produce the notice. I already referred to the judgment of Boonzaaier AJ where she found that a s 129 notice was correctly served.
According to him the s 129(1) notice does not align with the particulars of claim and is therefore irregular.
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He proceeds to state that the contents of the s 129(1) notices and the amounts therein does not correspond with the claim. However, the Defendant himself liquidated the exact debt by acceptance of the payment plan. At date of the s 129 notice the amount was correct as it was not disputed by the Defendant when he negotiated the terms to bring the arrears up to date. On 26 August 2022 the arrears was R151 905.58. This was demanded in the s 129 notice. [12] When he made the payment arrangement the arrears was R171 443.62, which he accepted when he agreed to make the payments. [13]
SECOND DEFENCE – PLAINTIFF DID NOT PROVE REGISTRATION UNDER THE NATIONAL CREDIT ACT
It is not necessary to attach the NCR Certificate to the pleadings. It is obligatory to make an averment whether the claim is subject to the provisions of the NCA or not. In such instance the creditor has to show that there was compliance with s 129 and that the Defendant failed to explore the options granted therein. Averment of registration is facta probanda, whilst proof by way of a certificate is facta probantia. This point does not constitute a bona fide defence. The Plaintiff in any event attached, upon being invited by the Defendant to proof it, [14] its certificate to the affidavit in support of the application for summary judgment. [15] Complaining that it cannot be introduced in the affidavit for summary judgment is misplaced.
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THIRD DEFENCE – NEW ACTION NEEDED
He states that if the Plaintiff wish to rely on a breach of the payment plan, it should have issued a new action and complied with s 129. [16] The issue of mootness and res judicata would then find application. I already dealt with this
FOURTH DEFENCE - LACK OF AUTHORITY – RULE 7(1)
This was for the first time challenged in the plea. If the authority of an attorney is challenged by the other party, that attorney may not proceed to act unless he satisfies the court that he is in fact duly authorised so to act. The challenge must be by way of notice in terms of this Rule. [17] The object of the Rule is to eliminate the issue about authority because it is assumed that persons will not litigate who do not have the necessary authority. There is no proof that the Rule was utilised. It is important to distinguish between a power of attorney (Rule 7) and lack of authority. In the affidavit in support of summary judgment, the Plaintiff states that the Defendant already during October/November 2022 realised that...
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