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[2014] ZAGPJHC 330
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Grove v Nedbank Ltd (A3050/14) [2014] ZAGPJHC 330 (29 October 2014)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
LOCAL DIVISION, JOHANNESBURG)
APPEAL
CASE NO: A3050/14
DATE:
29 OCTOBER 2014
In the matter
between:
CHRISTOFFEL
GERHARDUS GROVE
...............................
Appellant
And
NEDBANK
LTD
...............................................................
Respondent
J
U D G M E N T
Headnote -
Summary judgment – failure to attach written agreement upon
which claim base – Rule 18(6) not satisfied -
particulars of
claim alleging document lost – an alleged generic
template attached instead - Absence of attachment
of agreement not
per se fatal to summary judgment – depends on the allegations
of defendant – where defendant denies
concluding such an
agreement as the template or any agreement at all, a irresolvable
dispute of fact is alleged- summary judgment
inappropriate and
refused
DEWRANCE AJ
[1]
This
is an appeal from the Magistrate, Johannesburg ("the court
aquo
").
The court
a
quo
granted summary judgment in favour of the respondent.
[1]
[2]
The
appellant instituted action in the court
a
quo
based on contract. The original contract was not attached to its
particulars of claim. I will return to this aspect later.
[3]
Before
I deal with the merits of the appeal, it is necessary to dispose of a
preliminary issue.
NOTICE OF APPEAL
[4]
Mr
Van Reenen, for the respondent, submitted,
in
limine
,
that the appellant's notice of appeal is fatally defective because
the appellant
"merely
contradicted aspects of the magistrate's judgment without indicating
any substantial basis for doing so"
.
Therefore, the notice of appeal does not meet the requirements of the
relevant Rule.
[5]
Rule
51(7) of the Rules regulating the Conduct of the Proceedings of the
Magistrates' Court of South Africa ("the Magistrate
Court
Rules") dictates the form of a notice of appeal and provides as
follows:
"
(7)
A notice of appeal or cross-appeal shall state -
(a)
whether the whole or part only of the judgment is appealed against,
and if part only, then what part; and
(b)
the grounds of appeal, specifying the findings of fact or rulings of
law appealed against.
"
[6]
The
relevant portions of the notice of appeal read as follows:
"…
BE
PLEASED TO TAKE FURTHER NOTICE
that
the Appellant's grounds of Appeal are set out hereunder, namely:-
1.
the learned Magistrate erred in finding that the Plaintiff's claim is
calculated and a computed amount;
2.
the learned Magistrate erred in finding that the Plaintiff's claim is
not excipiable;
3.
the learned Magistrate erred in finding that the Magistrate's Court
has jurisdiction to hear the matter;
4.
the learned Magistrate erred in finding that the debt was paid;
5.
the learned Magistrate erred in not finding that there is a bona fide
defence for Reckless Credit;
6.
the learned Magistrate erred in finding that a valid agreement
existed between the Plaintiff and the Defendant.
..."
[7]
The
objects of the notice of appeal are
[2]
to enable the magistrate to frame his reasons for judgment; to give
the respondent an opportunity of abandoning the judgment; to
inform
the respondent of the test he has to meet; and to notify the Appeal
Court of the points to be raised.'
[8]
In
Van
der Walt v Abreu
,
supra
,
the Court stated how the objects must be achieved and held as
follows:
"
To
achieve these objects, a notice of appeal must, in terms of Rule
51(7)(b), state exactly what is being appealed against (
by
'specifying the findings of fact or rulings of law appealed
against'
);
and it must also indicate broadly, and without the detail of an
argument, why each finding of fact or ruling of law appealed
against
is said to be wrong (
by
stating 'the ground of appeal', being, as indicated in Riesberg v
Kroll and subsequent cases that followed it, notice of ground(s)
upon
which each fact or finding is to be attacked
)."
(
emphasis
added
)
[9]
The
Court of Appeal will exact strict compliance with the requirements of
Rule 51(7)(b) and will relax the prescribed practice only
in cases
where it is absolutely plain what issue of law is going to be raised
under a notice of appeal (see
Jones
and Buckle
Vol II RS 7, 2014, pages 51- 11
.
[10]
If
it is not clear that there is only one point of law which could
possibly be argued, and it is not clear that there is only one
finding or fact by the magistrate which could possibly be challenged,
the notice of appeal is fatally defective and the appeal
must be
struck off the roll (see
Wassenaar
v Robertson
1945 TPD 10
at 15;
Gaffoor
v Mvelase
1938 NPD 429
,
Van
Zyl v Burger
1966 (1) SA 692
(O)).
[11]
Whilst
it is so that the notice of appeal does not strictly comply with Rule
51(2), in my view it discloses, on the face of it,
several points of
law which can be argued. The notice of appeal, for instance,
states that the court
a
quo
erred in finding that it had jurisdiction to hear the matter.
This clearly indicates that there is an identifiable point
of law
which could possibly be argued. Accordingly, I am of the view
that the rule should be relaxed and, therefore, I exercise
my
discretion to do so.
[12]
This
does not mean that I am satisfied with the manner in which the notice
of appeal was crafted. In future, care should be
taken to
ensure exact compliance with the Rules. Failure to do so may
have disastrous consequences for litigants, a situation
which cannot
be tolerated.
WHETHER SUMMARY
JUDGMENT HAS BEEN GRANTED OR NOT
[13]
Paragraph
3 of the respondent's particulars of claim provides as follows:
"
3.
During or about November 2008 the Defendant completed and caused to
be submitted to the Plaintiff's credit card department, a
written
application for credit card account ("the application"), to
be opened in his own.
The
Plaintiff cannot locate such application form at present, but a pro
forma thereof, similar to that completed by the Defendant,
is annexed
hereto marked as 'A'
.
"
(
emphasis
added
)
[14]
The
particulars of claim allege that the application was sent to the
respondent's credit card department at Braamfontein, Johannesburg.
The application was received by the credit card department by a duly
authorised employee. The credit card account was opened
in the
appellant's name upon approval of the application by the respondent.
The respondent then despatched a letter to the
appellant's postal
address stated on the application form informing him that the
application had been accepted.
[15]
The
respondent alleges that the material express terms of the application
were that:
15.1
the
postal address of the defendant was indicated as 68 Barnard
Street, Oberholzer, Carletonville;
15.2
defendant
agreed that the credit card would be issued subject to the relevant
terms and conditions of use printed on the reverse
of the application
form, which defendant further confirmed having read and understood.
[16]
For
purposes of this judgment, it is not necessary to discuss the terms
and conditions which are subject to the issue of the credit
card.
[17]
The
law is quite settled on the attachment of original agreements where a
plaintiff relies on such agreement (see Rule 18(6) of
the Uniform
Rules of Court and Rule 14(2) of the Magistrate Court Rules).
In such a case, the original contract must be adduced.
Where an
original has been destroyed or cannot be found despite a diligent
search, a litigant, relying on such a contract,
can adduce secondary
evidence of its conclusion and terms (see
Singh
v Govender Bros Construction
1986 (3) SA 613
(N) at 616 J - 617 D;
Absa
Bank Ltd v Zalvest Twenty (Pty) Ltd and Another
2014 (2) SA 119
(WCC)).
[18]
The
appellant takes issue with the fact that the original agreement is
not attached to the particulars of claim and, based on this,
he
alleges,
inter
alia
,
that the respondent's particulars of claim are vague and
embarrassing. He further denies that he signed the
pro
forma
agreement attached to the papers. He puts it as follows:
"
10.
I further confirm that the Applicant/Plaintiffs particular (sic) of
claim is excipiable, vague and embarrassing. On this
they
haven't pleaded to any specific agreement whether it is an oral or in
writing, they merely make allegations of a document
which I would
have signed, of which they could not trace the original.
I
deny that I signed such a document
.
"
(
emphasis
added
)
and
"
13.
I further confirm that I am advised that
for
the Plaintiff to succeed with a Summary Judgment Application they
will have to plead a written or oral agreement and the agreement
will
have to be attached to the Summons, they have failed to do so
and
this is definitely a trial-able (sic) issue as their only excuse is
that they could not locate the application.
"
(
emphasis
added
)
[19]
In
his heads of argument, Mr Vermeulen, on behalf of the Appellant,
submitted that "
by
its very nature, Summary Judgment proceedings do not provide the
appropriate forum for such secondary evidence to be adduced
and
therefore it would be grossly inappropriate for a court to draw any
conclusions of the existence of an agreement and the terms
thereof at
Summary Judgment phase
".
In making this submission, Mr Vermeulen relied on the unreported
cases of
Absa
Bank Ltd v Jenzen
;
Absa
Bank v Grobbelaar.
[3]
[20]
In
Absa
Bank Ltd v Jenzen
;
Absa
Bank v Grobbelaar
,
Sutherland J made five important observations. Firstly,
failure to attach the loan agreement and non-compliance with
Rule 18(6) of the High Court Rules
[4]
cannot constitute the substance of an exception. Secondly, the
terms of the agreement need to be proven by secondary evidence
to
fill the gap left by the missing document. Thirdly, it would be
inappropriate to prejudice the merits of the defendant's
allegations,
and the plaintiff should extricate itself from its regrettable
predicament on trial, not by way of summary judgment.
Fourthly,
the finding should not be construed to mean that merely because the
foundational document is unattached to a claim that
summary judgment
is not feasible. Finally, the decision in each case "
will
determine by the import of the allegations made by the defendant to
question the version of the plaintiff about the terms of
the alleged
agreement by the plaintiff
".
Where such challenges are susceptible to rebuttal on the papers, or
are demonstrated not to be
bona
fide
,
the remedy of summary judgment remains available.
[21]
The
appellant denies that he entered into a written contract with the
plaintiff; that an application was received by the plaintiff's
credit
card department and accepted by duly authorised employees; that the
plaintiff despatched a letter to his postal address;
that he agreed
to a credit card being issued; and he never received the application
form containing the terms and conditions on
the reverse side.
[22]
The
appellant also denies signing the written contract. In fact,
before the affidavit resisting summary judgment was delivered,
the
appellant delivered a notice in terms of Rule 23(15) of the
Magistrates' Court Rules wherein he,
inter
alia
,
requested a copy of the duly signed agreement between the parties and
documentary proof that the defendant agreed to any specific
interest
rate.
[23]
Accordingly,
as I understand the agreement, the court
a
quo
erred in finding that a valid agreement exists. This argument also
goes to the heart of the appellant's denial that the court
a
quo
had jurisdiction.
[24]
I
do not agree with the appellant's contention that failure to attach
the original loan agreement rendered the particulars of claim
excipiable (see
Absa
v Jenzen supra
).
Therefore, the ground of appeal that it is excipiable is without
merit.
[25]
Mr
Vermeulen also submitted that the particulars of claim are vague and
embarrassing because, in paragraph 23 of the particulars
of claim, it
is alleged that the agreement was entered into "
during
or about November 2008
",
whereas paragraph 12 of the particulars of claim alleges that
"
section
92 of the National Credit Act was not complied with, as the
aforementioned agreement had been concluded prior to 1 June
2007
".
[26]
Mr
Van Reenen submitted that the particulars of claim are not vague and
embarrassing for this reason. He correctly pointed out that
paragraph
12 is an indication that, whether rightly or wrongly, section 92 of
the National Credit Act has not been complied with.
[27]
Accordingly,
I agree with Mr Van Reenen that, for this reason, the particulars of
claim are not excipiable.
[28]
I
now turn to the question of whether summary judgment should have been
granted by the court
a
quo
or not.
[29]
Summary
judgment proceedings are not and never have been intended as a forum
for the resolution of factual disputes (see
Mowschenson
and Mowschenson v Mercantile Acceptance Corporation of SA Ltd
1959 (3) SA 362
(W) 367C;
Venetian
Blind Enterprises (Pvt) Ltd v Venture Cruises Botel (Pvt) Ltd
1973 (3) SA 575
(R) 578 A). A trial is the proper forum for
that process, either because the nature of the relief presupposes a
trial or
because affidavits are not suitable for that purpose (see
Gulf
Steel (Pty) Ltd v Rack-Rite (Pty) Ltd
1998 (1) SA 679
(O);
Shackleton
Credit Management (Pty) Ltd v Microzone 88 CC and Another
2010 (5) SA 112
(KZP) 122 F - I).
[30]
Summary
judgment must be refused if the defendant discloses facts which,
accepting the truth thereof, or only if proved at a trial
in due
course, will constitute a defence (see
Raphael
and Co v Standard Produce Co (Pty) Ltd
1951 (4) SA 244
(C) 245 E - G;
Mowschenson
and Mowschenson v Mercantile Acceptance Corporation of SA Ltd
supra
).
While the defendant must fully present the facts upon which his
defence is based, he need not deal in detail with either
that defence
or the evidence in support thereof (see
Millman
NO v Klein
1986 (1) SA 465
(C) 469 F;
Absa
Bank Ltd v Coventry
1998 (4) SA 351
(N) 353 C - H).
[31]
Defects
in the opposing affidavits are not necessarily fatal for the
defendant as the court is entitled to adopt a lenient approach
to the
allegations contained therein and it is entitled to draw reasonable
inferences from those allegations (see
Fashion
Centre v Jasat
1960 (3) SA 221
(N) 222 G;
Koornklip
Beleggings (Edms) Bpk v Allied Minerals Ltd
1970 (1) SA 674
(C) 678 E.
[32]
The
appellant clearly denies entering into a written contract with the
plaintiff and accordingly denies that he signed a "
similar
"
agreement attached to the particulars of claim. This raises
doubt whether summary judgment should have been granted
or not.
That being so, summary judgment should have been refused.
[33]
Accordingly,
I am of the view that the
"
terms
of the agreement need to be proven by secondary evidence to fill the
gap left by the missing document
"
.
[34]
Accordingly,
I make the following order:
34.1
the
appeal is upheld;
34.2
costs
of the appeal are costs in the cause;
the
order of the court a
quo
is set aside and replaced with the following order:
"
Leave
to defend is granted, costs to be costs in the cause.
"
DEWRANCE,
AJ
ACTING
JUDGE OF THE HIGH COURT
GAUTENG
LOCAL DIVISION, JOHANNESBURG
I agree.
SUTHERLAND,
J
JUDGE
OF THE HIGH COURT,
GAUTENG
LOCAL DIVISION JOHANNESBURG
Date of Hearing:
14 October 2014
Date of Judgment:
29 October 2014
Representation
for the appellant
Counsel:
Mr M C Vermeulen (attorney)
Instructed
by: Smit & Grove Attorneys
Representation
for the respondent
Counsel:
Mr W H J van Reenen
Instructed
by: Smit Jones and Pratt
[1]
In
the amount of R68 583.18 plus interest at 21.4% per annum from 20
September 2010 to date of payment, with costs, on an attorney
and
client scale
[2]
See
Van der Walt v Abreu
1999 (4) SA 85
(W) at 104 C-F
[3]
Case
No 2014/877, Gauteng Local Division
[4]
Rule
14(2) in the Magistrates' Court