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[2016] ZAGPJHC 334
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Standard Bank of South Africa Limited v McCrae (21128/2015) [2016] ZAGPJHC 334 (6 December 2016)
SAFLII
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Certain
personal/private details of parties or witnesses have been
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REPUBLIC
OF SOUTH AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
GAUTENG LOCAL
DIVISION, JOHANNESBURG
CASE
NO:
21128/2015
6/12/2016
Not reportable
Not of interest to
other judges
Revised.
In the
matter between:
THE
STANDARD BANK OF SOUTH AFRICA
LIMITED
Applicant
(Registration
Number: 1962/000738/06)
and
LEAH
ANN
McCRAE
Respondent
(Identity
Number: …)
JUDGMENT
WEINER,
J
:
INTRODUCTION
[1]
The applicant seeks
judgment against the respondent for:
1.1.
payment of the amount of
R4 331 375,75 plus interest;
1.2.
payment of the sum of R42
524,19 plus interest;
1.3.
payment of the amount of
R4 139 820,67 plus interest; and
1.4.
costs on the attorney and
own client scale.
BACKGROUND
Basis
of the respondent’s indebtedness
[2]
2.1.
A written loan agreement
was concluded between the applicant and Strike Productions (Pty)
Limited (Strike Productions) on the 12
th
November 2009.
2.2.
Certain securities were
required which included a pledge of US $800 000 held in the name of
Robert Andrew McCrae (McCrae) at Standard
Bank Jersey/Guernsey.
2.3.
An event of default would
occur if
inter alia
Strike Productions was liquidated.
2.4.
In the event of such
default the applicant could require full payment of all Strike
Productions’ indebtedness under the loan
agreement.
2.5.
A written addendum to the
loan agreement was concluded by the applicant and Strike Productions
on the 5
th
July 2011.
2.6.
The addendum related to
the deletion of the clause in terms of which McCrae had to pledge the
amount held at Standard Bank Jersey/Guernsey
to the applicant and
instead the collateral required was an irrevocable undertaking by
McCrae, in a form and substance acceptable
to the bank.
2.7.
The conclusion of the loan
agreement, the addendum and the reschedule of payments are common
cause.
[3]
3.1.
A written fleet management
agreement was also concluded by the applicant and Strike Productions
on the 12
th
December 2011, the conclusion of which is also common cause.
Similarly, if Strike Productions was placed in liquidation the
applicant could claim payment of all amounts owing in terms of this
agreement.
3.2.
A written overdraft
agreement was also concluded by the applicant and Strike Productions
on the 20
th
November 2009. There is no real dispute in regard to the conclusion
of the written overdraft agreement despite the original agreement
having been lost. Similarly default would occur if Strike Productions
was placed under liquidation. A written variation of this
overdraft
agreement was concluded by the applicant and Strike Productions on
the 12
th
April 2011. Although the respondent denies the conclusion of the
written variation there appears to be no valid basis therefor
as she
was the sole director of Strike Productions at the time and she
signed the document on behalf of Strike Productions.
[4]
The respondent signed a
deed of suretyship in favour of the applicant in respect of the
indebtedness of Strike Productions on the
26
th
May 2011. The signature by the respondent and the terms of the deed
of suretyship are common cause.
[5]
Strike Productions was
liquidated in 2014, and as result the full amounts owing to the
applicant by Strike Productions in terms
of the loan agreement, the
fleet management agreement and the overdraft agreement became due and
payable.
[6]
The
amounts which are alleged to be due are recorded in certificates of
balance which, although denied by the respondent, are not
denied upon
any factual or legal basis. Accordingly, absent evidence on the part
of the respondent to rebut the certificate, the
certificate becomes
sufficient proof of the indebtedness. See S
olomon
N.O. and Others v Spur Cool Corporation (Pty) Ltd and Others
[1]
.
[7]
The respondent raised the
following defences:
7.1.
At the time that she
signed the deed of suretyship, she was intentionally, alternatively,
negligently not advised by the applicant
(who had a duty to so advise
her), that the collateral security required by the applicant, being
the pledge by McCrae referred
to above, had not been obtained.
7.2.
Secondly, she signed the
deed of suretyship at a time when it was not explained to her by the
applicant what document she was signing
nor the implications thereof.
She alleges that she was going through a mental breakdown at the
time, that Padyachee of the applicant
knew of her condition, and
failed to explain to her what the document comprised.
7.3.
Thirdly, Padyachee told
her she had to sign the deed of suretyship or else the applicant
would terminate all existing loan agreements
and demand repayment of
all funds. On that basis he was able to “unduly influence”
her to sign the document.
[8]
The respondent also relies
upon the alleged untoward conduct of another representative of the
applicant, one Ramjan, to demonstrate
that she was unduly influenced.
However, this influence appears to have been exerted over her during
November 2011/December 2011,
at a time which is not relevant to the
present proceedings.
[9]
The respondent accordingly
contends that during May 2011 she was in no mental state to freely
and voluntary, in her sound and sober
mind, make an election to sign
a deed of suretyship
alternatively
she had no legal capacity to enter into and conclude same.
Secondly, she lacked the necessary mental capacity to have entered
into the agreement because of her mental breakdown, and she was not
of sound mind to know what she was signing.
[10]
The applicant submits that
the respondent’s defences are mutually destructive of each
other. She could not simultaneously
have been incapacitated, under
undue influence, and subject to a non-disclosure at the time she
signed the deed of suretyship.
NON DISCLOSURE
[11]
The
respondent does not state upon what basis the applicant had a duty to
disclose to her that the pledge from McCrae had not been
obtained. In
ABSA
Bank Ltd v Fouche
[2]
Conradie
JA held that a p
arty
expected
to speak when the information he has to part falls within his
exclusive knowledge.
[12]
The respondent was fully
aware when she signed the deed of suretyship that McCrae had not
provided the pledge. This is apparent
from the divorce settlement
agreement concluded between respondent and McCrae on the 25
th
March 2011, in particular clauses 19.1 and 19.2 thereof. She
signed the deed of suretyship on the 6
th
May 2011. These clauses provide as follows:
Clause 19.1:
“
The Defendant (
McCrae) undertakes to furnish Standard Bank of South Africa with the
requested unlimited Deed of Suretyship, alternatively,
the Pledge of
the Limited Surety, in the sum of US Dollars 800,000 being the sum
held in the Defendant’s Standard Bank Jersey/Guernsey
CFD
Account, if again after signature hereof by the parties hereto, be
called upon by the Standard Bank of South Africa to furnish
either of
these requirements of Standard Bank of South Africa
.
Clause 19.2:
“
The Defendant
warrants and records that after signature hereof he has and shall
have no claim to any shares in any company relating
to Strike
Productions (Pty) Ltd and for the avoidance of any doubt, he hereby
cedes, transfers and makes over unto and in favour
of the Plaintiff,
any rights, title or interest which he enjoys to any assets,
benefits, including shares relating to Strike Productions
”
[13]
The respondent states that
it was not explained to her what the implications of the deed of
suretyship were. She does not state
that she did not read the deed of
suretyship or that she did not understand what she was signing. The
fact that it was not explained
to her does not therefore assist her.
[14]
Furthermore, by the time
the respondent signed the addendum to the loan agreement on the 5
th
July 2011, she acknowledged that McCrae had not provided the pledge
(the addendum amended the term loan agreement to the effect
that the
pledge was no longer required. Despite this knowledge, and despite
having signed the suretyship agreement some two months
before, the
respondent did not raise with the applicant any issue in regard to
McCrae not having provided the pledge or that, at
the time she signed
the deed of suretyship, she did not understand its implications and
/or was not in her sound and sober senses.
Furthermore, it is
apparent from the deed of settlement that it was contemplated that
the respondent would be obliged to sign a
deed of suretyship. She was
to become the sole shareholder and director of Strike Productions and
the deed of settlement provided
for that event.
Clause 19.4 provides as
follows:
“
After repayment
of the full amount owed to the Standard Bank, the Plaintiff and
Defendant shall take all reasonable and necessary
steps and sign all
documentation necessary to procure both the Plaintiff and Defendant’s
release as sureties and co-principal
debtors with Strike Productions
(Pty) Ltd (if necessary) …
”
Clause 19.5 reads as
follows:
“
The Defendant
indemnifies the Plaintiff against all claims of whatsoever nature and
howsoever arising in respect of any damages
which may arise as a
result of his failure, refusal and/or neglect to furnish Standard
Bank with his unlimited Deed of Suretyship,
alternatively, his
refusal, failure and/or neglect to Pledge the sum of US Dollars
800,000 as aforementioned.
”
JOINDER OF MCCRAE
[15]
It is pertinent to point
out that as a result of this clause the respondent, on the 21
st
November 2016, applied for the main application to be postponed on
the basis that she had instituted a joinder application to join
McCrae based upon his indemnity.
[16]
I found that there was no
reason for the matter to be postponed as the respondent could
separately sue McCrae on the indemnity if
she believed it was in her
interests to do so and that she could establish a cause of action.
There was no reason for the applicant
to be involved in that
application. It appeared that the only reason for the matter to be
postponed, pending the joinder application,
was a plea
ad
misericordiam
in that
the respondent did not want to be held liable to pay without
simultaneously enforcing her right of indemnity from McCrae.
Accordingly, I refused the application for postponement with costs.
UNDUE INFLUENCE
[17]
The applicant also
contends that the respondent has not made out a case for undue
influence by either Padyachee or Ramjan.
[18]
As set out above, the
allegations relating to Ramjan took place in November/December 2011
which is irrelevant in regard to the signature
date of the deed of
suretyship being in May 2011.
[19]
The signature of the deed
of suretyship came about as a result of the settlement agreement
between the respondent and McCrae. McCrae
transferred his
shareholding in Strike Productions to the respondent and the
settlement agreement, as stated above, clearly envisaged
the
respondent signing a deed of suretyship for the debts of Strike
Productions.
[20]
The
respondent does not allege she would not have signed the deed of
suretyship had she had “normal free will”, and
not been
influenced by Padyachee. See
Patel
v Grobbelaar
[3]
and
Hofer
and Others v Kevitt NO and Others
[4]
.
MENTAL CAPACITY
[21]
In relation to this
defence, the respondent attached the report and affidavit of a
clinical psychologist, Ms Lorraine Barbara De
Raay. The psychologist
states that in May 2011, the respondent’s state of mind was
such that she would not have appreciated
what she was signing.
Although, the evidence in this regard, is not totally convincing, in
my view it would be just and equitable
to refer this aspect to oral
evidence.
[22]
Accordingly, the following
order is made:
22.1.
The issue of whether the
respondent had the mental capacity to appreciate the implications of
signing the deed of suretyship, when
same was signed, is referred for
the hearing of oral evidence on a date to be arranged with the
registrar of Weiner J.
22.2.
The evidence of any person
who has provided an affidavit in these proceedings may be led in this
regard;
22.3.
if any other witnesses are
to give evidence, a summary of same is to be provided 10 days before
the hearing of the oral evidence.
22.4.
Costs are to be in the
cause.
_______________________________
S WEINER
JUDGE OF THE HIGH
COURT
OF SOUTH AFRICA
GAUTENG LOCAL
DIVISION,
JOHANNESBURG
Appearances
For
the Applicant:
Advocate
L Hollander
Instructed
by:
Jason Michael
Smith Incorporated Attorneys
For
the Respondent:
Advocate
M Nowitz
Instructed
by:
Nowitz
Attorneys
Date
of hearing:
22
November 2016
Date
of Argument:
22
November 2016
Date
of Judgment:
6
December 2016
[1]
(3215/00)
[2002] ZAWCHC 1
(30 January 2002)at paras [70] to [72]
[2]
(344/2001)
[2002] ZASCA 111
;
[2002] 4 All SA 245
(SCA) (19 September 2002) (at
para [5])
[3]
1974
(1) SA 532
(A) at 534A-B
[4]
(122/96)
[1997] ZASCA 79
;
1998 (1) SA 382
(SCA);
[1997] 4 All SA 620
(A); (26
September 1997) at 388E-F