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[2019] ZAGPJHC 335
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Sasfin Bank Limited and Another v Ormende Primary School and Another (24908/2018) [2019] ZAGPJHC 335 (14 August 2019)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NO: 24908/2018
In
the matter between:
SASFIN
BANK LIMITED
(REGISTRTION
NO:1951/002280/06) FIRST
APPLICANT
SUNLYN
(PTY) LIMITED
(REGISTRATION
NO: 1988/000147/07) SECOND
APPLICANT
AND
ORMENDE
PRIMARY SCHOOL FIRST
RESPONDENT
THE
MECE OF EDUCATION:
GAUTENG
PROVINCE SECOND
RESPONDENT
JUDGMENT
TWALA
J
[1]
In this opposed summary judgment application, the applicant seeks an
order against the respondents for payment of the sum of
R562 389.06
together with interest thereon calculated at 2% above the prime
interest rate as applicable from time to time
per annum, calculated
from the date of summons until the date of final payment. The
applicant seeks and order for costs on the
attorney and client scale.
[2]
It is common cause that on the 14
th
of June 2017 the second applicant and the first respondent concluded
a written rental agreement in terms whereof the first defendant
rented from the second applicant certain equipment specified in the
schedules and addendums to the Master Agreement of Hire for
the
duration of a contract period of 60 months. The first respondent was
represented by Prinavin Naick in his capacity as principal
and the
monthly rental amount was agreed at the sum of R9 342.3
(excluding Vat). It is not in dispute that the further term
of the
agreement was that should the first respondent fail to pay any amount
due to the second applicant, the second applicant
has the right to
claim immediate payment of all amounts which would have been payable
in terms of the agreement of hire until expiry
of the rental period
whether such amounts are then due for payment or not. Further, that
the second applicant would be entitled
to cancel the agreement, take
possession of the equipment and retain all amounts that have been
paid.
[3]
It was submitted by counsel for the respondents that a representative
of the second applicant misrepresented to the first respondent
that
it was installing cameras to the promises for the purposes of
demonstration only and was not renting it out the first respondent.
It was contended further that the debiting of the school account was
illegal and fraudulent and the first applicant had no authority
to
debit the account for the rental amount – hence the debit order
was stopped. Counsel argued further that the terms
of the
agreement were different from what was initially agreed upon and the
first respondent was never informed of the cession
of the rights of
the second applicant to the first applicant which cession occurred
long before the conclusion of the rental agreement.
The agreement, so
it was argued, was signed by the first respondent on the 15
th
of May 2017 and the annexure to thereto was signed on the 14
th
of June 2017.
[4]
Counsel for the applicants contended that there is a written rental
agreement and a debit order authorisation signed by the
principal of
the first respondent. The first respondent met the debit order on
numerous occasions and then stopped and or returned
the debit order –
hence the arrears in the amount of R67 247.16 as at the 19
th
of January 2018. The first respondent simply stopped the debit order
and did not cancel the agreement as alleged as there was no
notice of
cancellation directed at the second applicant. It was contended
further that the respondents do not dispute the existence
of the
rental agreement but allege that the terms are different from that
agreed upon but do not elaborate on those terms or the
difference
thereon. There is no confirmatory affidavit from the School Governing
Body as to what was agreed upon or how the agreement
differs from the
initial agreement between the parties.
[5]
I do not understand the respondents to say that there was no
agreement signed between the parties, but that the terms are
different
from that agreed upon by the School Governing Body (SGB).
However, the respondents failed to disclose the terms alleged to have
been agreed upon between the parties or to show the difference in the
terms. I am in disagreement with the respondent that the
debit order
was not authorised for it would not have been met if it did not have
the signature of the person responsible for signing
on the first
respondent’s bank account. Further, the respondents are silent
as to the steps taken to report the fraudulent
or unauthorised debit
orders to the police or recovery of the amounts debited from the
bank.
[6]
The common cause facts bore out that an agreement was concluded
between the parties and that both parties performed in terms
of the
agreement. The equipment was delivered by the first applicant to the
first respondent who also performed his obligations
in terms of the
agreement until the breach occurred. The intention of the parties can
be inferred from their conduct that they
accepted that they are bound
by the terms of the agreement – hence both parties performed in
terms of the agreement. It is
therefore absurd for the respondents to
now raise the issue that the annexure to the rental agreement was
signed on a different
date from the rental agreement. There is
nothing before this Court that suggests that the rental agreement
would be invalid or
voidable if it, together with its annexures, is
not signed on the same date. It is my considered view
therefore, that it
is irrelevant that the annexure to the rental
agreement was signed on date different from that of the Master
agreement. In
this regard, see the case of
Pillay
and Another v Shaik and Others
2009 (4) SA 74
).
[7]
I am in agreement with counsel for the applicants that there is no
collateral evidence that the terms of the agreement are different
from what was agreed upon between the SGB and the first applicant.
Further, nothing turns on the respondents not having been informed
of
the cession of rights between the applicants since it is a term of
the agreement that the first applicant has the right to cede
its
rights without informing the respondents. I accept that the first
applicant financed the transaction between the second applicant
and
the first respondent and that it has nothing do with the breakdown or
malfunctioning of the equipment. It is my considered
view therefore
that there is no reason for the applicants to join the supplier in
these proceedings.
[8]
It is trite that for a defendant to succeed in resisting an
application for summary judgment, it must show that it has a bona
fide defence to the action of the plaintiff. Although the defendant
does not have to establish such a defence as it would normally
in a
plea, but it must place certain facts before the Court which show
that such defence may succeed in the trial that might ensue.
[9]
In the case of
Joob
Joob Investments (Pty) Ltd v Stocks Mavundla Zek Joint Venture
2009
(5) SA 1
(SCA)
,
the Court stated the following:
“
The
rationale for summary judgment proceedings is impeccable. The
procedure is not intended to deprive a defendant with a triable
issue
or a sustainable defence of her/his day in court. After almost a
century of successful application in our courts, summary
judgment
proceedings can hardly continue to be described as extraordinary. Our
courts, both of first instance and at appellate
level, have during
that time rightly been trusted to ensure that a defendant with a
triable issue is not shut out. In the Maharaj
case at 425 G-426E,
Corbett JA, was keen to ensure first, an examination of whether here
has been sufficient disclosure by the
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 both
bona fide and good in law. A court which is satisfied that this
threshold has been crossed is
then bound to refuse summary judgment.
Corbett JA also warned against requiring of the defendant the
precision apposite to pleadings.
However, the learned judge was
equally astute to ensure that recalcitrant debtors pay what is due to
a creditor.”
[10]
I find myself in agreement with counsel for the applicants that the
respondents have failed to establish that they have a bona
fide
defence against the claim of the applicants. I am therefore
satisfied that the applicants are entitled to the order
as prayed for
in the application for summary judgment.
[11]
In the circumstances, I make the following order:
The draft order
marked “X” annexed hereto is made an order of Court.
__________________
TWALA
M L
JUDGE
OF THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION
Date
of hearing: 8
th
August 2019
Date
of Judgment: 14
th
August 2019
For
the Applicant: Adv N Lombard
Instructed
by: KWA Attorneys
Tel:
011 728 7728
For
the Respondents: Adv. M Ramaili
Instructed
by: The State Attorney
Tel:
011 330 7600