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[2023] ZAGPJHC 708
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Absa Bank Limited v Rena Business Solutions (Pty) Ltd and Others (2022/2098) [2023] ZAGPJHC 708 (15 June 2023)
REPUBLIC OF SOUTH
AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
GAUTENG DIVISION,
JOHANNESBURG
Case Number: 2022/2098
NOT REPORTABLE
NOT OF INTEREST TO OTHER
JUDGES
REVISED
In
the matter between:
ABSA
BANK LIMITED
Plaintiff
and
RENA
BUSINESS SOLUTIONS (PTY) LTD
First
Defendant
MOKOBANE
MOTHUSIMANG LELE
Second
Defendant
MOKOBANE
MANINI DAPHNE
Third
Defendant
This judgment was
handed down electronically by circulation to the parties’
representatives via e-mail, by being uploaded
to CaseLines/Court
Online and by release to SAFLII. The date and time for hand- down is
deemed to be 10h00 on 15 June 2023.
JUDGMENT
[1]
This is an opposed application for summary
judgment in which the plaintiff claims payment in the amount of
R1 918 084.59
together with interest on the aforesaid sum
at the rate of 7.75% linked, per annum, capitalised monthly from 8
April 2022 to date
of final payment. The application is opposed
solely on the grounds that the defendants have a
bona
fide
defence to the plaintiff's claim.
[2]
In circumstances where the plaintiff's
claim is for a liquidated amount in money, the defendant is, in terms
of Rule 32(3)(b), required
to:
“
[S]atisfy
the court by affidavit (which shall be delivered five days before the
day on which the application is to be heard), or
with the leave of
the court by oral evidence of such defendant or of any other person
who can swear positively to the fact that
the defendant has a bona
fide defence to the action; such affidavit or evidence shall
disclose fully the nature and grounds
of the defence and the material
facts relied upon therefor."
[3]
Accordingly, the defendants are obliged to
set out facts and particulars in their affidavit resisting summary
judgment to enable
this Court to decide whether the nature and
grounds of their defence have been disclosed and whether such defence
is
bona fide
and good in law.
The parties
[4]
The
plaintiff, ABSA Bank Limited (“ABSA”), is a public
company duly registered and incorporated with limited liability
in
accordance with the laws of the Republic of South Africa, trading,
inter
alia
,
as a banker and financier in terms of the provisions of the Banks
Act
[1]
and registered as a
credit provider in terms of the provisions of the
National Credit Act
34 of 2005
.
[2]
[5]
The first defendant, Rena Business
Solutions (Pty) Ltd, is a company duly registered and incorporated
with limited liability in
accordance with the laws of the Republic of
South Africa.
[6]
The second defendant, Mothusimang Lele
Mokobane is an adult male married in community of property to the
third defendant, Manini
Daphne Mokobane.
Background facts
[7]
On
1 October 2020, the plaintiff and the first defendant, represented by
the second defendant, entered into a Covid-19 NCA Out Loan
Agreement,
marked annexure "A" ("the agreement"). The
third defendant signed a consent in terms of the
provisions of the
Matrimonial Property Act.
[3]
.
In its particulars of claim, the plaintiff pleads that the
first defendant breached the terms of the Covid Loan agreement
in
that the first defendant failed to pay the requisite monthly
instalments to the plaintiff on the relevant due dates. Also,
that the first defendant was in arrears with its payment obligations
in terms of the Covid Loan agreement in the amount of R265 722.39
as at 13 December 2021.
[8]
Due to the first defendant's alleged breach
of the payment terms of the Covid Loan agreement, the plaintiff
elected to cancel
the Covid Loan. The plaintiff accelerated the
full outstanding indebtedness and instituted legal proceedings
pursuant to
such cancellation. The plaintiff pleads that the
amount of the facility advanced had to be repaid in equal instalments
of
R37 274.62, with the first instalment being payable on 1 May
2021 and the last instalment payable on 1 April 2026. These
allegations are admitted by the defendants in the plea.
[9]
The defendants defence is two-fold. First,
the defendants allege that payments were made to the plaintiff by the
first defendant
and as a result, the defendants deny they are liable
to the plaintiff as alleged. It is contended by the defendants
that
the following payments were made - R140 476.77 on
2 July 2020; R396 170.28 on 8 September 2020;
R40 000.00
on 13 November 2020; R162 109.92 on
22 January 2021; and R1 015 570.95 on
22 January 2021
totalling R1 754 327.80.
[10]
The defendants allege that because of
payments having been made, an email was sent by a representative of
the plaintiff confirming
that payments "totalling R353 362.25
received were allocated to expunged [sic] the Covid relief account".
However,
as evidenced by the proof of the alleged payments, in
respect of the abovementioned transactions, each payment was made to
a beneficiary
account, "ABSA VEHICLE MANAGEMENT", with
account number: 4059751674.
[11]
The email relied upon by the defendants,
annexture “MLM12”, dated 28 September 2021,
from
the plaintiff
addressed to the defendants
in relevant parts reads thus:
“
The
discrepancies between your communicated arrear position as well as
our figures has been taken to account and thoroughly investigated
and
we have found that all POPs sent through to us were duly allocated to
your account. You will recall that you were granted payment
relief
when the Covid Pandemic Lockdown began so 3 payments totaling
R353,362.25 was allocated to expunged the Covid relief account.
As
per minutes below you were required to expunge 70% of the total
arrears by 22 September 2021 which will equate to:
CAF= R312,013 arrears @
70% equals R218,409.10 (Received R86000)
AVMS = R4,387,762 arrears
@70% = R3,071,433.40 (No payment received).
Please
provide us with POP of these funds by COB today so we can ensure
allocation to your accounts, if this is not received please
be
advised that your account will be handed over to legal without any
further communication
”
.
[12]
Any suggestion that payments were made to
expunge the Covid loan account based on MLM12 is not only
disingenuous, but without any
basis on the defendants’ own
version. As the plaintiff pointed out, in the heads of
argument, two of the five alleged
payments were made by the
defendants before the Covid Loan agreement was even concluded on 1
October 2020 and before the facility
was even extended to the first
defendant. If anything,
MLM12 serves
to confirm that the defendants had more than one account with ABSA
which they were servicing.
[13]
In this case however, there is no denying
that the relevant account which pertains to the Covid Loan agreement
is account number
30-5315-5716, as evidenced from the account
summary, from the written notice of default as well as the
Certificate of balance.
The first
ground of defense is quite clearly without merit.
[14]
Secondly, the second and third defendants
also allege as a defence that they were not given the opportunity to
read the suretyship
agreements, nor were they specifically advised of
the legal consequences thereof. In addition, they were informed
by the
ABSA official facilitating the agreement that signature of the
suretyship agreement was merely a formality and that same would not
adversely bind the signatories.
[15]
The
surety agreement, annexure B of the founding affidavit,
is
in bold letters clearly headed as such.
By
her conduct in appending her signature to the document, the third
defendant misrepresented that it was her intention to be bound
by the
suretyship and thereby misled ABSA into granting the loan so that it
is equally clear that the contract came into existence
by quasi
mutual consent. Once this is so, the onus rests upon the party
seeking not to be bound by it to prove that his error
in signing it
was
iustus
as defined in
George
v Fairmead
.
[4]
[16]
The defendants in the present case have
failed to put up a defence on the merits of the application.
Accordingly, the order
that follows is appropriate in a case
such as this.
Order
[17]
The following order will issue:
17.1
Judgement is granted against the
defendants, jointly and severally, the one paying and the other to be
absolved for:
[a]
Payment in the sum of R1 978 236.68;
[b]
interest in the aforesaid sum at the rate
of 7.75% linked per annum capitalised monthly from 8 April 2022 to
date of final payment;
and
[c]
Costs of suit on the scale as between
attorney and client.
T P Mudau
JUDGE OF THE HIGH
COURT
JOHANNESBURG
Date of Hearing: 3 May
2023
Date of Judgment: 15
June 2023
APPEARANCES
For
the Applicant:
Adv.
N Alli
Instructed
by:
Jay
Mothobi Inc
For
the Respondents:
Adv.
M Rodrigues
Instructed
by:
Paul
T Leisher & Associates
[1]
94
of 1990.
[2]
34
of 2005.
[3]
88
of 1984.
[4]
George
v Fairmead (Pty) Ltd
1958 (2) SA 465
A.