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[2012] ZAGPJHC 265
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Killik v Investec Bank Ltd (261/12) [2012] ZAGPJHC 265 (30 August 2012)
IN THE SOUTH GAUTENG HIGH
COURT
JOHANNESBURG
CASE
NO
: 261/12
DATE
:
30/08/2012
In the matter between
JONATHAN
MOLYNE KILLIK
APPLICANT
and
INVESTEC
BANK LIMITED
RESPONDENT
J U D G M E N T
WILLIS
J
:
[1]
I
have before me an application for leave to withdraw the notice of an
application for rescission of judgment with a notice of withdrawal
having been tendered. The applicant tenders costs on an
attorney and client scale. This application is opposed by the
respondent.
[2] In the 33 years that
I have been a lawyer I have never come across an application for
withdrawal (either on an application or
for an action) that has been
opposed where there has been a tender for costs. I say this
without any sense of shame or embarrassment
because as Kumleben JA
said in the matter of
Levy v Levy
[1991] ZASCA 81
;
1991 (3) SA 614
(A) at 620B:
“
The
situation in such a case would be one difficult to visualise.”
(In his own words.)
[3] If, however, one may
be permitted to corrupt the famous saying of Pliny, the elder and
aver that
ex curia Johannesburgensis semper aliquid novi
, the
ingenuity of the lawyers in this town seems to know no bounds.
[4] The immediate
background to this particular application is that last week I was the
senior judge presiding in the Motion Court.
This matter was
before me as an opposed application for rescission of a judgment, to
which I shall refer later. The matter
was set down by the
respondent in the application for rescission of the judgment. The
applicant applied last week for a postponement.
I indicated in
court last week that I believed that the matter should to reach some
finality. There were squeals of protest
from counsel for the
applicant in this matter on the basis that he was in the invidious
position in such an important matter in
not having his learned leader
with him.
[5] Accordingly, I agreed
to stand the matter down in order for a date to be agreed upon this
week when his learned leader, Mr
Brett
SC would be in court to
lead him in this matter. I specifically arranged for this
matter to be heard today to accommodate
Mr
Brett
. I may
record that I am not sitting in an ordinary Motion Court week but
specifically arranged for this matter to be heard
because last week
it seemed that,
prima facie,
it had dragged on for far too
long.
[6] One can therefore
imagine my surprise when, this morning,
Mr
Brett
was not
in court but Mr Kaplan was being led by Mr
Du Toit
SC
who has been brought into this particular application.
[7] The
reason advanced for why the applicant wishes to withdraw is that
there is an affidavit by one Deborah Catharine
Smart who testifies to
the fact that she was employed by SSG, Security Services Group, and
that she perpetrated a fraud of a signature.
She refers to one
Mr Pauli Simpson, the managing director of Forensic Investigations at
SSG who, she says, called her to his office,
showed her a signature
and asked her to practice to see if she could copy it. Two days
after he had given her the document,
which had typing on it, he told
her to sign the signature (which she had practiced signing before) on
the document where provision
was made for a signature.
She says: “I did not have a chance to look at the document to
see what I was signing
neither did I know whose signature I was
signing.”
[8] This forgery (as
alleged) is contested by the respondent. The applicant contends, in
view of that protest of disagreement, that
this whole matter should
be referred to trial. That, so the argument goes, is why the
application is now brought for the withdrawal
of rescission of the
application. That is now to explain the application for
withdraw the application for rescission of the
judgment that had
previously been obtained.
[9] It is necessary to
have regard to the facts in somewhat more detail. The applicant
(Mr Killik) and a Mr Botha, were directors
of the MKB Group Holdings
(Pty) Ltd, (‘MKB’). MKB carried on business as a
property developer. It borrowed
money from the respondent,
Investec Bank Limited, (‘Investec’), to finance its
business. MKB owed Investec over
R100 million. Investec
made loans to MKB under six written loan agreements concluded between
2007 and 2008. Mr Botha
signed the loan agreements on behalf of
MKB. Mr Killik (the applicant) and Mr Botha stood surety for
the repayments of the
loans. It has never been in dispute (and
is indeed common cause even today) that the loan agreements were
concluded and that
the funds under these loans were advanced by the
respondent and the funds received by MKB.
[10] As I am delivering
this judgment
ex tempore
and as it will therefore be riddled
with points upon which greater clarity and greater finesse could be
preferred, I wish to emphasise
in big, bold, red capital letters the
sentence that I uttered a few moments ago: it has never been in
dispute that the loan
agreements were concluded and the funds under
these loans were advanced by the respondent and received by MKB.
This fact,
to my mind, looms large and it looms larger than a number
of other points that have been argued before me today. If I do not
address
all the different points that have been raised by counsel,
both last week and today, I hope I may be forgiven for doing so
because,
as I say, I consider this one particular fact looms so
large.
[11] In December 2008,
Investec launched an urgent application for the winding up of MKB.
The order, which was unopposed,
was made final on 3 February 2009.
In January 2009 Investec brought an application against the applicant
(Mr Killik) and
Mr Botha, predicated upon their suretyships for
payments of the amounts MKB owed it (Investec) in terms of the six
loan agreements.
The applicant and Mr Botha opposed the
application. At that time the applicant (Mr Killik) and Mr
Botha, raised only one
substantive defence
viz
., that
Investec, the respondent, had breached the provisions of the loan
agreements and accordingly had prejudiced them as sureties.
In
other words, at that time the applicant, (Mr Killik) and Mr Botha
relied upon the provisions of the loan agreements precisely
in order
to escape their liabilities as sureties.
[12] The applications
against the applicant (Mr Killik) and Mr Botha, were argued in a
single application before Van der Walt AJ
who granted six separate
judgments against the applicant (Mr Killik) and Mr Botha, jointly and
severally on 10 November 2009.
The effect was an order for
payment by them jointly and severally to Investec (the respondent in
the present application) of an
aggregate amount of around R103 315
684.00, together with interest and costs.
[13] At that time, the
applicant (Mr Killik) and Mr Botha did not dispute the authenticity
of the six loan agreements in the money
judgment application.
The applicant (Mr Killik) and
Mr Botha applied to the High Court
for leave to appeal but this application was dismissed with costs.
The applicant (Mr Killik)
and Mr Botha, applied to the Supreme Court
of Appeal for leave to appeal by way of petition but this petition
was also dismissed.
[14] In September 2010
the respondent (Investec), launched an application for the
sequestration of Mr Botha’s estate.
Although answering
and replying affidavits were filed, Mr Botha consented to a
provisional order of sequestration, which was granted
on
22
February 2011. The return day was 5 April 2011. On 4
April 2011 Mr Botha launched an application to extend the return
day
so that he could file a further affidavit in the sequestration
application. In January 2011 the respondent in this application
(Investec), launched an application for the sequestration of the
applicant (Mr Killik).
[15] In June 2011 Mr
Botha launched an application seeking to rescind the money judgment
that had previously then obtained against
him. Mr Botha’s
ground for rescission was that his six signatures on the relevant
deeds of suretyship upon which Investec
relied were all forgeries.
Mr Botha at that time neither denied signing the loan agreements nor
has he ever questioned the
authenticity of his signatures thereupon.
Mr Botha’s case was based entirely on the reports of
handwriting expert,
Mr J F Hattingh, who in his first report ventured
the opinion that Mr Botha’s signatures on all six deeds of
suretyship were
forged. The hearing of Mr Botha’s
application for rescission took place before my brother, Moshidi on
21 May 2012.
Moshidi J then handed down a written judgment on
24 July 2012 in which he dismissed Mr Botha’s application for
rescission.
[16] On 3 November 2011
Mr Killik launched his proceedings in which he seeks to rescind the
judgment obtained against him.
Mr Killik seeks to rescind the
money judgment on the ground Mr Botha’s signature was forged on
at least one of the loan agreements
in question. On 8 December
2011 the applicant (Mr Killik), Mr Botha and the two trusts
controlled by them instituted an action
against the respondent,
(Investec), under case number 2011/47058 in which they claimed the
sum of R243 016 542.00. In that
action, the plaintiffs’
cause of action was founded on the allegation which was made on
behalf of Mr Killik, (the applicant
in the present matter), that
Investec (the respondent in this particular application) had acted
unlawfully in relying on certain
corporate suretyships that were
fraudulent and/or unsigned and thereby Investec unlawfully procured
the winding up of MKB.
[17] In paragraph 18 of
the particulars of claim in that action the plaintiffs alleged that
the respondent (Investec) and MKB had
concluded a number of written
loan agreements and specified 18 such agreements by a deal number.
In paragraph 20 thereof,
the plaintiffs relied upon a quote from the
terms of each of the loan agreements. This is in paragraph 18
thereof.
The plaintiff relied upon the provisions of the
written loan agreements to substantiate their damages claimed against
Investec.
In other words, the plaintiffs in that action sought
to rely precisely upon the loan agreements which the applicant (Mr
Killik),
today wishes to have held in question.
[18] On 16 February 2012
Investec served a notice in terms of
rule 35 (12) in which it
requested an opportunity to inspect the 18 written loan agreements
referred to in the particulars of claim.
On
25 March 2012
the plaintiffs filed a response to the notice and on
2 May 2012
the applicant (Mr Killik), set down this rescission application for
hearing on 8 May 2012. The application was
postponed by
agreement in terms of a court order which provided,
inter alia
,
that the rescission application was postponed
sine die
and
that the applicant (Mr Killik), undertook not to set the rescission
down for hearing until such time as an application to compel
compliance with Investec’s 35 (12) notice in the action had
been determined.
[19] On 8 May 2012 the
respondent (Investec), served a rule 30A notice on the plaintiffs,
calling upon them to comply with the rule
35 (12) notice. In
response, on 23 May 2012 the plaintiffs, (including obviously the
present applicant, Mr Killik), filed
a notice withdrawing the action
and tendering Investec’s costs.
[20] The affidavit in
question, namely the affidavit by Ms Smart upon which the applicant
relies in seeking to obtain the withdrawal
of this particular
application is so appallingly bad that I believe that no regard need
be had to what it says. It is unusual
for a court to express
such a view but I need only repeat the sentence that I mentioned
earlier:
“
I did not have a
chance to look at the document to see what I was signing neither did
I know whose signature I was signing.”
The deponent to this
affidavit asks the court to believe that she was asked by one Mr
Pauli Simpson to practice a forgery and then,
two days later, she was
given a document to forge and, ‘hey, presto’, this
signature appeared thereon which it is now
claimed is a forgery.
Even if I have committed a serious solecism in criticising an
affidavit
ex facie
as document itself, even if it is accepted
that Mr Botha’s signatures on the loan agreements were forged,
the undisputed
and unchallenged evidence of certain persons whose
evidence has been put before the courts by way of an affidavit
namely, Ms Penny,
Ms Cross and Ms Curry makes it clear that the
forgeries must have been made before Ms Cross received them from MKB
and forwarded
them to Investec. The latter (viz. Investec)
could not have played any part in the forgery. In any event, in
the affidavit
that is presented in support of the application for
referring the whole matter to trial and in allowing the withdrawal of
the application
it is clear that SSG (which is not the respondent)
was the party to the fraud.
[21] I agree with counsel
for the respondent, Mr
Antonie
that the applicant (Mr Killik),
like
Mr Botha in his rescission application cannot succeed in
this application because an applicant for rescission, relying on the
ground
of fraud must establish by unequivocal evidence that the
successful litigant (
i.e
. Investec in this case), was a party
to the fraud. See
Makings v Makings
1958 (1) SA 338
(A)
at 344 to 345;
Rowe v Rowe
[1997] ZASCA 54
;
1997 (4) SA 160
(SCA) 166.
[22] There is a further
and more important reason why I believe the applicant cannot succeed
and that is the fact which I emphasised
right at the beginning of
this judgment in big, bold red luminous letters
viz
., that it
has never been in dispute that the loan agreements were concluded and
that the funds under these loans were advanced
by the respondent and
the funds received MKB. Anyone who has the most slender
acquaintance with banking will know that a
loan between a banker and
a customer does not come into existence purely by reason of a written
document signed by the parties.
There need not even be a
written document. There is a whole complex web of transactions: in
particular, either a transfer of money
into a loan account or an
allowance by a bank that cheques may be drawn or other withdrawals
may be made from the account in question.
An allowance made by the
bank that these withdrawals may be made, where a customer, in the
position of MKB genuinely transacts
thereupon. In other words,
there can be no room for any doubt in this matter that MKB did borrow
money from Investec and
that the applicant in this matter stood
suretyship for that debt. I wish to emphasise, there can be no
room for any doubt
about this.
[23] Accordingly, I can
see no basis whatsoever on which this document, to which I have
already alluded, an affidavit deposed to
by one Smart can in any way
be relevant. I did also emphasise that the judgment that was
obtained against Mr Killik was not
a judgment obtained by default.
It was a contested application. This also colours the whole
background to the matter.
As I said at the very beginning of
this judgment, it would normally difficult to visualise a situation
where a court would not
allow an application for withdrawal of an
application. But, in that judgment of
Levy v Levy
Kumleben JA, delivering the unanimous judgment of the court referred
to the case of
Hudson v Hudson & Another
1927 AD 259
at
268 where De Villiers JA observed that:
“
Where a Court
finds that an attempt had been made for ulterior purposes to abuse
the processes of the Court it was the duty of the
Court to prevent
such abuse. In other words, an abuse of Court process will
justify a Court dismissing an application for
withdrawal.”
I am satisfied in this
instance that there quite clearly has been an abuse of the court’s
processes. If one has regard
to the history of this matter it
is quite obvious that all that has been done is that the court’s
rules and processes have
been abused with a view to buying time for
the applicant in this particular matter.
[24] In question arises
whether, if I dismiss the application for withdrawal of the
application for rescission, I should also dismiss
the actual
application for rescission of judgment which was one of the matters
that was enrolled last week and which I expected
to hear today.
Mr Antonie argued that there should be a ‘package deal’
order because, in the end, the whole question
of whether there should
be a rescission and whether or not there should be a withdrawal of
the application depends on the simple
point whether the affidavit of
Deborah Smart has such a potent effect as to justify a trial action
to determine whether judgment
was correctly obtained against the
applicant in this matter (Mr Killik).
[25] The postponement
application made yesterday is really is of consequence because, if
anything, the matter was postponed to today
in the expectation that
it would fully argued. I therefore, am of the view that Mr
Antonie
is entirely right in his submissions. I afforded
Mr
Du Toit
an opportunity to address me on this aspect (the
dismissal of the application for rescission of judgment). I am not
sure whether
I can fairly say he did or he did not but, be that as it
may, it is quite clear that everything stands or falls in this
particular
matter on the status, the momentum, the gravity, the
power, the impetus, of Ms Smart’s affidavit.
[26] Mr
Antonie
,
counsel for the respondent, has argued that the costs of two counsel
should be allowed. There really can be no serious opposition
to this
request, given the scale of magnitude of the matter. I did not
understand Mr
Du Toit
to object thereto. After all, two
counsel have been employed on behalf of the applicant in the matter.
[27] It should be noted,
in order to avoid any confusion, that the judgment on 11 November
2009, to which reference is made in the
order that follows is
annexure A to the founding affidavit of the applicant in the
application for rescission of the judgment.
It is the judgment of Van
der Walt AJ delivered on 11 November 2009.
[28] The following are
the orders of the court:
1. The applicant’s
application for leave to withdraw the application for rescission of
the judgment granted against him in
this matter on 11 November 2011
is dismissed with costs.
2. The application for a
postponement of the application for rescission of the judgment
granted against the applicant in the above
matter on 11 November 2009
is dismissed with costs.
3. The application for
rescission of the judgment granted against the applicant in the above
matter on 11 November 2009 is dismissed
with costs.
4. The costs orders made
above are to include the costs of two counsel.
--------------------------------------------
Counsel for applicant:
Adv
S F du Toit
SC (with him, Adv
J L Kaplan
)
Counsel for respondent:
Adv
M
Antonie
SC
Attorney for applicant:
Laurencik Attorneys
Attorney for respondent:
Farber Sabelo Edelstein
Date of hearing: 30
August 2012
Date of judgment:
30 August 2012