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[2014] ZAGPJHC 68
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Sparax Trading v ABSA Bank (37151/2013) [2014] ZAGPJHC 68 (11 April 2014)
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IN THE HIGH COURT
OF SOUTH AFRICA
(SOUTH GAUTENG
HIGH COURT JOHANNESBURG)
CASE
NO: 37151/2013
DATE:
11 APRIL 2014
In the matter
between.
SPARAX
TRADING
.....................................................
Applicant
And
ABSA
BANK
............................................................
Respondent
JUDGMENT
MATTHEE AJ:
[1] In this matter
the Applicant seeks Leave to Appeal, to the full bench of the South
Gauteng High Court, against paragraph one
of the order of my
judgment, handed down on the 27“' February 2014.
[2] Having
considered the arguments of the Applicant, I am unpersuaded that the
Applicant has a reasonable prospect of success on
appeal.
[3] Accordingly, the
application is dismissed with costs.
KEITH MATTHEE
ACTING JUDGE OF
THE HIGH COURT
(Africa
Transcriptions (Pty) Limited
IN THE HIGH COURT
OF SOUTH AFRICA
(SOUTH GAUTENG
HIGH COURT. JOHANNESBURG)
CASE NO: 37151-13
DATE: 27-02-2014
In the matter
between
SPARAX
TRADING Applicant
And
ABSA
BANK Respondent
JUDGMENT
MATTHEE J: This is
an ex tempore judgment. In this application the applicant seeks an
order that the respondent, within two days
of service 20 of this
order upon It, credit the applicant's attorney’s trust account
with the sum of R2.716625.00. from the
account held at the
respondent’s East Rand Branch under account number 4068021652.
The applicant also then seeks the costs
of the application.
At the hearing of
the matter it became apparent that the amount now sought by the
applicant is R809 866.12. as a result of the respondent
having
already paid the balance of the said sum back to the applicant.
Briefly the history of the matter is as follows;
The applicant and
the respondent, along with Mr Daniel Jacobus Zletsman, the latter in
his capacity as a surety, during March 2007
entered into an agreement
In terms of which the respondent opened a cheque account on behalf of
the applicant, with the account
number 4068021652. Part and parcel of
that transaction was that the respondent, which is a bank, extended
overdraft facilities
to the applicant, In accordance with the
agreement between the parties.
It is the
respondent's case that as of November 2012 the said cheque account
was overdrawn in the sum of R857 256.30 and as a result
of that, the
respondent issued summons against the applicant, and against the said
Mr Zietsman in his capacity as a surety, for
the amount, during
January 2013.
The applicant filed
a notice of intention to defend in that matter, whereupon the
respondent applied for summary judgment. The summary
Judgment was
dismissed by the court. Thereafter, on 11 June 2013, the applicant
filed its plea and after this there was an exchange
which has given
rise to the present application. The exchange involved 20 an amount
of money, namely the figure that was first
claimed In the notice of
motion, which was deposited by a client of the applicant Into the
said bank account. This occurred a few
months after the particulars
of claim and the plea in June 2013 had been filed with the High
Court.
As a result of this
deposit Into the bank account, the respondent bank took the following
view of what should transpire: This view
is contained in a letter
from the respondent's attorney dated 30 September 2013 and I quote:
"Our
instructions are that the deposit of R2, 716,625.00 was made into the
overdue account number 4068021652 (hereinafter referred
to as "the
account") on 19 September 2013 which has resulted in a credit
balance in the account in the amount of R1,
826,758 88. As the
account has a legal hold on it. as a result of the pending legal
10proceedings instituted against your client,
your client will not be
able to access any credit balance on the account. We therefore
request you to ascertain from your client
into which account these
credit funds must be transferred. Our client will further deduct
interest and legal fees from the credit
balance on the account as per
the agreements between our clients. In light of what has transpired,
we suggest without prejudice
to any of our client's rights, that your
client tenders our client’s costs to 20 date on the attorney
and own client scale,
whereafter the matter will be settled."
In response to the
allegation in the particulars of claim, the plea reads as follows: I
quote from the particulars of claim first.
"The first
defendants cheque account Is overdrawn..."
.the first defendant
there being the applicant in the present matter,"...and the
balance owing as at of 13 November 2012 was
R857 256.30 plus interest
at the rate of 19.25% per annum, capitalised monthly from 14 November
2012 to date of payment, both days
inclusive."
The response by the
applicant in Its capacity as first defendant in that matter is as
follows:
"Each and every
allegation is denied as If 10 specifically traversed and the
plaintiff is pul to the proof thereof."
The gist of the
respondent’s case is that of set off, that the applicant owes
it money and this money is in this bank account
and it is entitled to
retain It pending the trial that has been set down for May, when it
will be decided whether or not this money
is in fact owed.
In seeking to
support its case, at page 01 of the record, paragraph 33 we read the
following by the respondent:
“I am advised
that it Is uncontroversial that the respondent's entitlement to apply
set off does not depend on whether the
applicant admits such
indebtedness, but whether such indebtedness is clear and easily
ascertainable or calculable."
In support of this.
Mr Botha, who appeared on behalf of the respondent, furnished me with
case law. The essence of which was to
support this contention
contained In the answering affidavit of the respondent. The problem
the respondent has in the present matter,
is the court is faced with
a denial by the applicant that it owes any money.
So when it says
where such indebtedness is clear and easily ascertainable or
calculable, that simply does not apply in the present
matter. There
was a suggestion at one stage, although as I understood Mr Botha, he
did not persist with that with any great vigour,
that the certificate
of balance which forms part of the papers, should be sufficient for
the court to decide what amount is owed
and therefore that set off
can apply. If in fact set off can apply in these circumstances, 10
and in that regard for purposes of
the present Judgment I find no
need to make any ruling, the problem the respondent has, is that the
issue of the reliability of
the certificate of balance is going to be
resisted by the second defendant when it comes to the trial.
But even if it is
found that the certificate is in order that has no bearing on the
present applicant. It is common cause that the
contract between the
applicant and the respondent was an old contract. And there was no
reference in it to a certificate of balance
being prima facie proof
of the amount that is outstanding.
All the court has
before it as regards an amount, is what is 20 contained In the plea
at this stage. And the plea says it denies
the allegation that any
amount is outstanding. (Given the plea the reliance of respondent on
the reference only to interest in
the Summary Judgment is not
persuasive.) Accordingly, even accepting certain things as I have
done for the respondent in the present
matter, set off simply cannot
apply Which then leaves the situation that money has been deposited
into this account, which belongs
to the applicant, via a third party
and as things stand now, there is nothing before me to support
retention of that money by the
bank.
Obviously when the
trial comes around, and evidence is led, a very different conclusion
might bo reached. But at this stage I simply
do not have anything
before me other than what is stated in the plea and to the extent
that Mr Botha was able to persuade me to
rely on the summary judgment
affidavit and on the replying affidavit.
At the end of the
day, the plea is very clear that it denies liability. 10 It denies
that the account is overdrawn and that any
money is owed.
Accordingly, I find no basis for what the respondent seeks to
convince me of at this stage, viz. that the bank is
entitled to
retain the money which is in the bank account. Accordingly, I find
that the applicant is entitled to the relief It
seeks with proviso
that the amount It seeks is adjusted to accommodate the amount of
money which has already been paid back by
the respondent to the
applicant.
Which then leaves
the issue of costs. The applicant in addition to asking for an order
that the bank be directed to release that
money to It also asked for
costs of this application. I am of the view, and here I agree with
Mr Botha, that this is an issue
that should be reserved for
determination by the trial court.
As if it does emerge
at the trial, that in fact there was no defence and that this simple
denial that there was money owing, or
that they were overdrawn is not
true, and absent any tender by the applicant to at least pay back the
money that the respondent
says It owes, then quite clearly In my
opinion the trial court would attend such conduct with the
appropriate costs award which
would include the costs of this
application.
Accordingly I would
make the following order.
ORDER
1) The respondent is
ordered, within five days of this order being served upon it, to pay
to the credit of the applicant’s
attorney's trust account held
under the name of Larry Marks Attorneys Trust Account, held at First
National Bank, Balfourpark Branch,
10 Johannesburg.
Branch code 2……., under account number
6………..,
the sum of R809 866.12.
2) The costs of the
application be reserved for determination by the trial court.
APPEARANCE FOR
THE APPLICANT: ADV BOTHA
APPEARANCE FOR
THE REvSPONDENT: ADV COHEN
I the undersigned,
hereby certify that. In as far as It Is audible, the aforegoing is a
VERBATIM transcription of the proceedings
as was ordored to be
transcribed by iAfrica Transcriptions and which had been recorded by.
Digital Court Recording Services by
moans of a digital recorder in
the matter of:
SPARAX
TRADING Applicant
And
ABSA
BANK Respondent
CASE NO. 3715113
RECORDED
AT: Court: Johannesburg
Court Nr: Unknown
Stenographer: Unknown DATE OF HEARING: 27 February2014
ORDER TO
TRANSCRIBE. Transcribe audio CD as ordered
ORDER COMPLETED
ON: 28 March 2014.
NO OF
CD's: Dropbox
NUMBER OF
PAGES: 0
PLEASE NOTE
The following
problems were encountered during transcription of the audio record:
1. Where no clear
annotations were furnished, names were transcribed phonetically.