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[2016] ZAWCHC 174
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Absa Bank Limited v Scarlet Dawn Trading 135 CC and Others (13504/2014) [2016] ZAWCHC 174 (5 September 2016)
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Certain
personal/private details of parties or witnesses have been
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IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE DIVISION, CAPE TOWN)
Case No: 13504/2014
In
the matter between:
ABSA
BANK LIMITED
Plaintiff
and
SCARLET
DAWN TRADING 135 CC
First
Defendant
(Registration
Number 2005/080754/23)
CHRISTINE
JOSEPH
Second
Defendant
DAWIS
JACOBUS JOSEPH
Third
Defendant
Court:
Canca,
AJ
Date
of Hearing:
24
August 2016
Judgment:
5
September 2016
JUDGMENT
INTRODUCTION
1.
I
shall refer to the parties in this application as they are cited in
the main action.
2.
This
is an application for summary judgment against the third defendant,
the plaintiff having already obtained judgment against
the first and
second defendants. The judgment sought is for the payment of
the sum of R196 965,50, together with interest
thereon, at the
rate of 14.5 percent per annum calculated and capitalised monthly
from 1 July 2014 to date of payment. The
applicant also seeks
costs as between attorney and client. The application has its
origins in a deed of suretyship.
3.
The third
defendant, who is married in community of property, opposes this
application on various grounds. In brief summary,
the defences
raised are the following:
3.1 The deponent to the
affidavit in support of the application was unable to attest to the
facts and verify the cause of action;
3.2 The particulars of
claim were excipiable;
3.3 The third defendant
denies:
(a)
signing the suretyship;
(b)
that his wife consented to the suretyship; and
(c)
the amount claimed or that the same is due and payable; and
3.4 The third defendant
requests the Court, in the exercise of its discretion, to refuse
summary judgment in this matter.
BACKGROUND
FACTS
4.
The second
and third defendants are siblings and were, at all material times,
members of the first defendant. During July
2006, the parties
concluded a written credit agreement in terms of which the plaintiff
lent and advanced monies to the first defendant
in respect of cheque
account number 4[…] opened at its Kuils River Branch.
This credit agreement was apparently inadvertently
destroyed during
August 2009 by the company that handles the plaintiff’s
document management. An unsigned copy of the
general terms and
conditions which applied to overdraft and other banking facilities in
2006 was attached to the plaintiff’s
particulars of claim.
5.
It was a
specific term of the credit agreement that a certificate signed by a
manager of the plaintiff would be
prima
facie
proof
of the amount owing to the plaintiff, the interest due or any other
fact or matter relating to the cheque account or overdraft
facility.
6.
A
suretyship bearing the details of the third defendant and those of
his wife (and apparently signed by them at the plaintiff’s
Zevenwacht branch on 31 January 2009) forms part of the papers in
this application. This suretyship, as with the credit
agreement, also provides that a certificate signed by a manager of
the plaintiff was
prima
facie
proof
of the amount owing to it.
7.
It is
convenient to quote the clause dealing with the certificate in full
given some of the defences raised by the third defendant
referred to
in paragraph 3 above. The clause reads as follows:
“
A certificate
signed by any manager of the Bank
[the
plaintiff]
shall
be sufficient proof of any applicable rate of interest and the amount
owing in terms hereof or of any other fact relating
to the suretyship
for the purposes of judgment, proof of claims against insolvent and
deceased estates or otherwise and if I/we
dispute the correctness of
such certificate, I/we shall bear the onus of proving the contrary.
It shall not be necessary
to prove in such proceedings the
appointment or capacity of the person signing such certificate.”
8.
A
certificate of balance was duly signed by the plaintiff’s
manager; Legal Resources: Business Support and Recoveries, on
31 July
2014 reflecting the amount owing as at 30 June 2014 and for which
judgment is sought.
9.
A summons
was issued and served on the defendants but for reasons that are not
entirely clear from the papers, judgment by default
was obtained only
against the first and second defendants. However, a warrant of
execution against the movable assets of
the third defendant was
issued on 21 October 2014, and on receipt of a
nulla
bona
return,
the plaintiff applied to have the third defendant and his wife’s
immovable property declared executable.
10.
The
application to declare the property executable was granted on 19
January 2016, erroneously it subsequently turned out, as there
was no
judgment against the third defendant, only the first and second
defendants. The judgment declaring the aforesaid property
executable was abandoned by the plaintiff during April 2016.
11.
The third
defendant entered an appearance to defend the action. Acting in
terms of Rule 32, the plaintiff brought this application
for summary
judgment on 6 June 2016. As already mentioned in paragraph 3
above, the third defendant opposes the application
for the reasons
set out therein. Given this background, I now turn to deal with
the merits of the application.
THE
PLAINTIFF’S CASE
12.
The essence
of the plaintiff’s case is that the third defendant has failed
to disclose a
bona
fide
defence.
THE
THIRD DEFENDANT’S DEFENCES
13.
It is
appropriate to consider the defences in the order set out in
paragraph 3 above.
14.
Was the
deponent to this summary judgment application in a position to attest
to the facts and verify the cause of action?
Mr van der Linde,
for the third defendant, contends that the deponent to the verifying
affidavit in support of this application
had in the affidavit in
support of the application to declare the third defendant’s
property executable, misled the Court
as there was in fact no
judgment against him. Therefore, so it was contended, she
cannot be said to be in a position to swear
positively to the facts
in this matter as same were not within her personal knowledge.
The deponent should have done more
to convince me that she
understands the nature and meaning of the phrase “swear
positively to the facts” as required
by Rule 32 of the Uniform
Rules of Court, so the contention continued.
15.
The
deponent to the verifying affidavit, Ms Philander, is a manager in
the employ of the plaintiff’s business banking, restructuring
and recoveries division. She avers that she has acquainted
herself with all the data relating to this matter and as a result,
the facts are within her personal knowledge.
16.
The
plaintiff is a large organisation and as correctly conceded by Mr van
der Linde, the wording of Ms Philander’s affidavit
was not
unusual as it was substantially similar to those of large corporate
institutions. What the third defendant takes
issue with is the
fact that Ms Philander had in a previous affidavit failed to bring an
essential aspect of that matter to the
Court’s attention.
Consequently, I should not believe the correctness of her affidavit
in this matter as well, it was
contended.
17.
In his
affidavit opposing summary judgment, after citing the actions that
led to his property being wrongly declared executable
based on Ms
Philander’s affidavit in support thereof, the third defendant
states,
inter
alia
,
that:
“
6.8 Clearly
the Court was misled into granting an order in circumstances where
there was no reason whatsoever for the granting of
that order.
7. Now in the present
matter apparently the same Lizelle Philander has deposed to the
affidavit supporting summary judgment.
8. It is clear that
the previous affidavit in this matter was economical with the truth
and in fact totally misleading to the Court
hearing the application
to declare the property executable. I see no reason why the
Court should believe Philander’s
affidavit in this matter
either.
9. She mentions no
detail which would assist the Court in confirming that she actually
had sight of the documents which purportedly
set out the cause of
action against me.”
18.
It is trite
that, as was held by Corbett JA (as he then was) in
Maharaj
v Barclays National Bank Ltd
1976 (1) SA 418
(A) at 423F:
“
The mere
assertion by a deponent that he ‘can swear positively to the
facts’ (an assertion which merely reproduces wording
of the
Rule) is not regarded as being sufficient, unless there are good
grounds for believing that the deponent fully appreciated
the meaning
of the words …”
In
setting out the rationale for summary judgment proceedings, Navsa JA
in
Joob
Joob Investments (Pty) Ltd v Stocks Mavundla Zek Joint Venture
2009 (5) SA 1
(SCA) at 12 A-C states,
inter
alia
,
that:
“
Our courts,
both of first instance and at appellate level, have during that time
[“After
almost a century of successful applications in our courts …”]
rightly
been trusted to ensure that a defendant with a triable issue is not
shut out.”
The
learned Judge, citing the Maharaj case, states that summary judgment
applications essentially involve a two-stage enquiry.
This
involves ‘
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 bona fide and good
in law. A Court
which is satisfied that this threshold has been crossed is then bound
to refuse summary judgment …
However,
the learned Judge was equally astute to ensure that recalcitrant
debtors pay what is due to a creditor.’
19.
There is no
evidence in the affidavit resisting summary judgment proffered which
sustains the assertion that Ms Philander was unable
to attest to the
facts and verify the cause of action. There was no need for her
to furnish the Court with details confirming
that she had sight of
the documents in this matter. It is sufficient for her to
positively aver, as she has done, that she
had acquainted herself
with the documents, given that they were under her control. The
fact that Ms Philander’s affidavit
in a previous application
contained a crucial omission or mistake cannot be held against her in
this application in the absence
of evidence that her current
affidavit suffers a similar defect.
20.
I agree
with Mr Jonker, for the plaintiff, that the objection to the
verifying affidavit has no merit and does not disclose a
bona
fide
defence.
21.
Are the
Particulars of Claim excipiable? The third defendant relies on
two grounds for this defence. Firstly, he avers
that no cause
of action is disclosed. The foundation of this averment being
that, having alleged that the first defendant
opened a cheque account
with it, the plaintiff has failed to disclose on what basis that
amounted to advancement of credit and,
in addition, has failed to
plead the date, place and between whom it was agreed that credit
would be granted to the first defendant
on the cheque account.
The second ground is that the plaintiff’s prayer to have the
third defendant’s property
declared executable is not related
to its cause of action based on money owed on a cheque account.
Relying on the above,
it was contended by the third defendant that
the summons contained vague, irrelevant and embarrassing allegations
which made it
impossible for the third defendant to plead and stood
to be struck out. Something the third defendant undertook to do
on
being granted leave to defend the action, so the argument
continued.
22.
Mr Jonker’s
response was, in brief summary, simply this: The third
defendant’s complaint was not understood.
The simple
summons sets out the plaintiff’s cause of action in that (a)
paragraph 1.1 thereof alleges that monies were
lent and advanced by
the plaintiff to the first defendant at its special instance and
request on a cheque account and (b)
pleads the suretyship in
paragraph 1.5 of the particulars of claim. Regarding the third
defendant’s contentions with
respect to the prayer to have his
property declared executable, the plaintiff was no longer pursuing an
order in terms of that
prayer in this application.
23.
It is these
allegations to which the third defendant is required to plead.
Insofar as he contends that the allegations contained
in the summons
fail to disclose a cause of action, he has not persuaded me that upon
every interpretation the summons can reasonably
bear, no cause of
action has been disclosed. Insofar as he contends that the
allegations contained in the summons are vague
and embarrassing, he
has similarly failed to persuade me that any alleged vagueness or
embarrassment goes to the root of the cause
of action. I
therefore agree with Mr Jonker that this defence is not only vague
and flimsy but also lacks conviction.
In my view, the defence
is not
bona
fide
and therefore stands to be rejected.
24.
Did the
third defendant and his wife sign the suretyship? In summary,
the third defendant avers that he recalls, as a member
of the first
defendant, attending the plaintiff’s Kuils River branch in
order to apply for an overdraft on behalf of the
first defendant.
He states that an overdraft in the sum of R40 000 was granted
but that he was not asked to sign a suretyship
agreement. The
first time he saw the suretyship, was when the summons was served on
him. He admits that the signature
on the suretyship is his but
denies that he “
put
it there”
and, in an apparent support of this assertion, states that his
handwriting does not appear anywhere else on the document.
He
also denies having signed any document on behalf of the first
defendant at the plaintiff’s Zevenwacht branch which,
ex
facie
the suretyship, appears to be where the document was signed.
25.
The third
defendant also denies that his wife permitted him to sign the
suretyship or that she signed the document as well even
though her
signature appears on the suretyship. Although he states that
his wife’s organisation does its banking at
the Zevenwacht
branch, he denies that either his wife or himself would ever have
signed documentation to do with the first defendant
at that branch as
all the first defendant’s banking was done at the Kuils River
branch.
26.
The third
defendant is being disingenuous. It is common knowledge, given
the technologically advanced age we live in, that
banking
institutions are such that a customer can transact his or her
business at any of its branches. One is not confined
to the
branch where one does most, if not all, of one’s business.
It is well within the realm of possibility that,
as his wife’s
business conducted its banking at that branch, it was convenient for
her to have the suretyship signed at the
Zevenwacht branch.
Also, no affidavit by his wife was filed to confirm the third
defendant’s averments, rendering the
averments pertaining to
his wife, hearsay evidence. No weight is therefore afforded to
that evidence. Rampai AJP in
Patrick
Thabang Kgotlagomang v Petrus Johannes Joubert
(A 203/2013) 4 September 2014, an unreported judgment of the Free
State Division of this Court, with respect, correctly, states
that
“
it
is very easy to deny one’s signature. If such simple
denials, unexplained defences, and vague suspicions were to
be
glorified as triable issues or bona fide defences, then the
commercial world would be absolutely paralysed with catastrophic
economic repercussions. The Courts would not cope with the
resultant endless tide of commercial litigation.”
In
any event, the real purpose of
section 17(5)
of the
Matrimonial
Property Act 88 of 1984
, which deal with litigation against spouses
married in community of property, is not to permit a spouse married
in community of
property to a debtor to avoid liability in respect of
debt incurred in the furtherance of the interests of the joint
estate, but
rather to safeguard creditors who deal with such a
debtor. See
Nedcor
Bank Ltd and Another
1999 (3) SA 767
SECLD at 770 G – 771 A
27.
This
defence also lacks conviction. It does not contain a
bona
fide
defence
and has no merit.
28.
Is the
amount due and owing? The third defendant states that he ceased
being involved in the business of the first defendant
in September
2008. He and the second defendant, his sister, agreed that he
would resign as a member, she would run the business
of the first
defendant on her own and that she would bear the responsibility for
repaying the overdraft, which at that stage was
approximately
R30 000,00. Numerous requests by the third defendant to
the plaintiff for an explanation of the dramatic
increase in the
overdraft amount elicited no response, so the averment continued.
This is the high water mark of the third
defendant’s resistance
to the relief sought under this defence.
29.
Mr Jonker,
correctly argued that this defence is set out so baldly and vaguely
that it fails to meet the minimum requirements an
opposing affidavit
must comply with in summary judgment applications. Colman J ,in
Breitenbach
v Fiat SA (Edms) Bpk
1976 (2) SA 226
(TPD) at 229A held,
inter
alia,
that
“
what
I have set out in that regard is not a demand for, or an
encouragement to present lengthy and prolix affidavits in summary
judgment cases. All that is required is that the defendant’s
defence be not set out baldly, vaguely or laconically
that the court,
with due regard to all the circumstances, receives the impression
that the defendant has, or may have, dishonestly
sought to avoid the
dangers inherent in the presentation of a fuller or clearer version
of the defence which he claims to have.”
30.
The third
defendant has not provided any evidence to dispute the
prima
facie
evidential
value of the certificate of balance upon which the amount claimed is
based. It is not sufficient in proceedings
of this nature for a
defendant to simply aver that he or she does not know how the amount
claimed increased so significantly from
what he or she knew the
outstanding amount was when he or she was still actively involved in
the business. It seems to me
that such an enquiry, properly,
should have been directed at the person who ran the business, in this
case, the second defendant.
Also, an affidavit by the second
defendant confirming the query of the amount in the certificate of
balance, might have assisted
the Court in the evaluation of the
merits of this defence. This the third defendant failed to
provide. Finally, default
judgment has already been granted
against the first and second defendants and nowhere in the papers is
it alleged that the aforesaid
defendants are challenging the
judgments against them.
31.
In the
circumstances, I find that this defence is also not
bona
fide
and
good in law.
32.
In a final
attack the third defendant requests that, based on equity and to
ensure that justice is done between the parties, I should
exercise my
discretion and refuse summary judgment. This would allow the
third defendant to properly ventilate the issue
between him and the
plaintiff, so the contention continued.
33.
The learned
Judge in Breitenbach supra at 229C states that “
even
if the defendant’s affidavit does not measure up fully to the
requirements of sub-rule (3) (b) of
Rule 32
, the Court may
nevertheless refuse to grant summary judgment if it thinks fit …
The discretion, clearly, is not to
be exercised capriciously, so as
to deprive a plaintiff of summary judgment when he ought to have that
relief.”
In
this matter, it is manifestly clear, as I have shown above, that none
of the defences raised by the third defendant are
bona
fide
and
good in law. There has simply been no evidence that the third
defendant has a triable issue or a sustainable defence that
warrants
a trial. The third defendant has not even offered or has paid
the sum he claims he was aware of when he exited the
business of the
first defendant. And, there is nothing in his affidavit that
suggests that a refusal to exercise my discretion
in his favour will
result in an injustice to him.
34.
For all the
reasons set out above, the application for summary judgment in this
matter must succeed.
35.
In the
result, I order as follows:
There will be summary
judgment against the third defendant in terms of prayer (a) and (c)
of the plaintiff’s particulars of
claim.
________________________
CANCA,
AJ
Appearances
For
the Plaintiff
: Adv JW
Jonker
Instructed by:
Sandenbergh Nel Haggard
Attorneys
Bellville
For
the Third Defendant :
Adv DJA van der Linde
Instructed by:
Meyer Attorneys
Cape Town