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[2021] ZAGPJHC 578
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Standard Bank of South Africa Limited v Darier and Others (17224/2018) [2021] ZAGPJHC 578 (23 June 2021)
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REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NO: 17224/2018
REPORTABLE:
NO
OF
INTEREST TO OTHER JUDGES:
NO
REVISED.
23
JUNE 2021
In
the matter between:
STANDARD
BANK OF SOUTH AFRICA LIMITED
PLAINTIFF
(Registration
number: 1962/000738/06)
And
JACK
WILLIAM
DARIER
FIRST DEFENDANT
(Identity
number [....])
ERIC
ARTHUR
DARIER
SECOND DEFENDANT
(Identity
number [....])
JEAN
ELIZABETH
DARIER
FOURTH DEFENDANT
(Identity
number [....])
JUDGMENT
Delivered:
This order was handed down
electronically by circulation to the parties’ legal
representatives by e-mail. The date and time
for hand-down is deemed
to be 10h00 on the 23
rd
June
2021.
TWALA
J
[1]
This is an application wherein the third defendant excepts to the
plaintiff’s
particulars of claim as amended on the basis that
certain paragraphs therein when read together fail to disclose and or
sustain
a cause of action against the third defendant.
[2]
The plaintiff’s action against the defendants is defended and
the third defendant
has filed an exception against the plaintiff’s
particulars of claim raising the point that they fail to disclose and
or sustain
a cause of action as against the third defendant. The
plaintiff persists that there is nothing amiss with its particulars
of claim
and refused to remove the cause complained about. In this
judgment, I propose to refer to the parties as the plaintiff and
defendant
going forward.
[3]
It is common cause that the plaintiff instituted proceedings against
the first defendant,
based on the breach of a loan agreement entered
into between the parties on the 14
th
of September 2010 for
payment of the sum of R2 413 559.63 and declaring the
property which is the subject matter executable.
Furthermore, as
against the second and third defendants based on a suretyship
agreement executed by the second defendant on the
21
st
of
September 2010 with the consent of the third defendant to whom he is
married in community of property, in favour of the plaintiff
in terms
whereof he bind himself as surety and co-principal debtor in solidum
for the repayment on demand of all the amounts which
the first
defendant may presently or at any time in the future owe to the
plaintiff, its successors in title or assigns.
[4]
The defendant contends that it did not sign the suretyship agreement
as a surety as
required by law but as a consenting spouse of the
surety. She contends that she signed the document only consenting to
her husband
to whom she is married in community to bind himself and
surety in favour of the plaintiff. Therefore, so the argument goes,
she
cannot be sued as a co-surety with her husband - thus the
particulars of claim do not disclose a sustainable cause of action
and are bad in law.
[5]
It is trite that an exception that a pleading is defective to the
extent that it does not
disclose or sustain a cause of action strikes
at the formulation of the cause of action and its legal validity. It
is not directed
at a particular paragraph within the cause of action
but at the validity of the cause of action as a whole, which must be
established
that in law does not give rise to a claim as pleaded.
Furthermore, it is trite that, for the purposes of determining an
exception,
the Court must assume that the factual averments made in
the pleading are correct. It is therefore the duty of the excipient
to
persuade the court that upon every interpretation that can be
ascribed to the pleading, it does not disclose or sustain a cause
of
action.
[6]
Almost a century ago the Appellate Division, as it then was, in the
case of
McKenzie v Farmer’s Cooperative Meat Industries Ltd
1922 AD 16
at 23
defined the phrase “
cause of action”
,
which definition has been quoted as trite in many recent judgments as
follows:
‘…
every
fact which it would be necessary for the plaintiff to prove, if
traversed, in order to support his right to judgment of the
court. It
does not comprise every piece of evidence which is necessary to prove
each fact, but every fact which is necessary to
be proved.”
[7]
In
M Ramanna and Associates cc v The Ekurhuleni Development
Company (Pty) Ltd, case No: 25832/2013 (4 April 2014) ZAGPJHC
this
Court stated the following:
“
It
is a basic principle that particulars of claim should be so phrased
that a defendant may reasonably and fairly be required to
plead
thereto. This must be seen against the background of the abolition of
the requests for further particulars of pleading and
the further
requirement that the object of pleadings is to enable each side to
come to trial prepared to meet the case of the other
and not be taken
by surprise. Pleadings must therefore be lucid and logical and in an
intelligible form; and the cause of action
or defence must appear
clearly from the factual allegations made.
The whole purpose of
pleadings is to bring clearly to the notice of the Court and the
parties to an action the issues upon which
reliance is to be placed
and this fundamental principle can only be achieved when each party
states his case with precision”.
[8]
In
Khan v Stuart
1942 CPD 386
at 392
a decision, which was
quoted with approval in the Ramanna case supra, the Court stated the
following:
“
It
is the duty of the court, when an exception is taken to a pleading,
first to ascertain if there is a point of law to be decided
which
will dispose of the case in whole or in part.
Unless
the excipient can satisfy the court that there is such a point of law
or such real embarrassment, then the exception should
be dismissed”.
[9]
It is necessary to restate the provisions of section 6 the General
Law Amendment Act,
50 of 1956 on which the defendant’s
contentions are based which state the following:
“
6
Formalities in respect of contracts of Suretyship
No contract of
suretyship entered into after the commencement of this Act, shall be
valid, unless the terms thereof are embodied
in a written document
signed by or on behalf of the surety: Provided that nothing in this
section contained shall affect the liability
of the signer of an aval
under the laws relating to negotiable instruments”.
[10]
Since this case involves litigants who are married in community of
property, it is appropriate
to mention the relevant provisions of the
Matrimonial Property Act,88 of 1984 (“the Act”) which
provides as follows:
“
15
Powers of Spouses
(1)
Subject to the provisions of
subsections (2), (3) and (7), a spouse in a marriage in community of
property may perform any juristic
act with regard to the joint estate
without the consent of the other spouse.
(2)
Such a spouse shall not without the
written consent of the other spouse –
(a)
……………………………
..
(h) bind himself as
surety.
17 Litigation by or
against spouses
(1)
A spouse married I community of
property shall not without the written consent of the other spouse
institute legal proceedings against
another person or defend legal
proceedings- instituted by another person, except legal proceedings –
(2)
………………………
(5) Where a debt is
recoverable from a joint estate, the spouse who incurred the debt or
both spouses jointly may be sued therefor,
and where a debt has been
incurred for necessaries for the joint household, the spouses may be
sued jointly or severally therefor.
[11]
Having regard to the trite principles of our law as enunciated above
and my understanding of
the authorities referred to herein, the
undisputed facts are that the defendant signed the suretyship
agreement albeit as a consenting
spouse. The defendant consented to
the second defendant to sign the suretyship agreement, as spouses
married in community of property,
to bind their joint estate for the
fulfilment of the obligations stated therein in favour of the
plaintiff. Subsections 17 (1)
and (5) of the Act are plain, clear and
unambiguous that spouses married in community of property cannot be
sued separately for
debts recoverable from the joint estate and,
where the debt has been incurred for the joint household necessaries,
the spouses
may be sued jointly or severally therefor.
[12]
I do not agree with the contentions of the defendant that she only
signed and gave the second
defendant the consent to bind itself as
surety. I hold the respectful view that the defendant signed the
consent granting the second
defendant the power and authority to bind
the joint estate and by extension binding the co-owners of the joint
estate as co-sureties.
I disagree with the defendant that there is
non-compliance with the provisions of section 6 of the General Law
Amendment Act and
therefore there is no merit in the contention that
the pleading is bad in law. It follows ineluctably therefore that,
when the
pleading is considered in the whole, it does disclose a
sustainable cause of action for it avers every fact which would be
necessary
for the plaintiff to prove at the trial of the case.
[13]
In
Cherangani Trade and Invest 50 (Pty) Ltd v Razzmatazz (Pty) Ltd
and Another (2795/2018) [2020] ZAFSCHC 100 (28 May 2020)
the
Court stated the following:
“
Paragraph
20: Unnecessary technicality should be avoided during litigation as
reliance thereon by a litigant is often aimed at trying
to evade
judgment on the merits and more often than not, the party relying on
a technicality know full well that he/she does not
have a proper
defence on the merits.”
[14]
I am unable to disagree with counsel for the plaintiff that the
defendants are overly technical
in their approach in this matter
which does not help to resolve the real issues between the parties.
Courts have in a number of
decisions emphasised the point that
parties should at all times attempt to bring finality to litigation
between them and that unnecessary
technicalities which delay the
proper ventilation of the real issues to bring the case to finality
should be avoided. This is one
such case where the exception is
raised, in my respectful view, only for the purposes of delaying the
plaintiff from receiving
the remedy it seeks without incurring
further unnecessary costs. It is patently an abuse of the process of
the Court which should
not be countenanced. Such conduct by a
litigant should be censured by the Court with a punitive costs order.
[15]
In the circumstances, I make the following order:
1.
The exception is dismissed with the
excipient to pay the costs of the exception on the scale as between
attorney and client.
TWALA
M L
JUDGE
OF THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION
Date
of Hearing:
11
th
June 2021
Date
of Judgment:
23
rd
June 2021
For
the Plaintiff:
Advocate PMP Ngcongo
Instructed
by:
Van Hulsteyns Attoneys
Tel: 011 523 5300
daniel@vhlaw.co.za
For
the Defendants:
Advocate JK
Berlowits
Instructed
by:
Anthony Berlowitz Attorneys
Tel: 011 457 6599
tony@berlowitz.co.za