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[2023] ZAGPJHC 876
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Grindrod Bank Limited v Culverwell and Another (17343/2022 ; 17345/2022) [2023] ZAGPJHC 876 (7 August 2023)

SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
REPUBLIC OF SOUTH
AFRICA
IN THE HIGH COURT
OF SOUTH AFRICA
GAUTENG DIVISION,
JOHANNESBURG
DATE
:
7
th
August 2023
(1)
CASE NO
:
17343/2022
NOT REPORTABLE
NOT OF INTEREST TO
OTHER JUDGES
REVISED
In the matter between:
GRINDROD
BANK
LIMITED
Applicant
and
CULVERWELL
,
ALLAN MONTAGUE
First
Respondent
CULVERWELL
,
DUSTIN MONTAGUE
Second
Respondent
(2)
CASE NO
:
17345/2022
In the matter between:
GRINDROD
BANK
LIMITED
Applicant
and
CULVERWELL
,
ALLAN MONTAGUE
First
Respondent
CULVERWELL
,
DUSTIN MONTAGUE
Second
Respondent
Neutral Citation
:
Grindrod Bank v Culverwell and Another; Grindrod Bank v Culverwell
and Another (17343/2022 & 17345/2022)
[2023] ZAGPJHC ---
(07 August 2023)
Coram:
Adams J
Heard on
: 01
August 2023
Delivered:
07
August 2023 - This judgment was handed down electronically by
circulation to the parties' representatives by email, by being

uploaded to
CaseLines
and by release to SAFLII. The date and
time for hand-down is deemed to be 10:00 on 07 August 2023.
Summary:
Contract
– specific contracts –  demand guarantee and
performance guarantee – compliance – guarantees
in
question – consisting, as they did, of an undertaking to make
payment of amounts of money on the happening of a specified
event –
autonomous in nature –  it must be paid according to its
terms – only where fraud was involved that
liability may be
declined – defences raised by respondents rejected as bad in
law – judgment granted in favour of applicants.
ORDER
(1)
Under case number: 17343/2022, the first
and the second respondents’ application to stay the main
application be and is hereby
dismissed with costs on the scale as
between attorney and own client.
(2)
Under the said case number: 17343/2022,
judgment is granted in favour of the applicant against the first and
the second respondents,
jointly and severally, the one paying the
other to be absolved, for: -
(a)
Payment to the applicant of the sum of
R56 000 000, plus interest thereon at the rate of prime per
annum, calculated daily
and compounded monthly in arrears from 6
April 2022 to date of payment, both days inclusive.
(b)
The applicant may not recover more than the
amount set out in paragraph 2(a) from the respondents and the
principal obligor, Eldacc
Proprietary Limited (in liquidation).
(c)
Payment of costs on the scale and between
attorney and own client scale.
(3)
Under case number: 17345/2022, the first
and the second respondents’ application to stay the main
application be and is hereby
dismissed with costs on the scale as
between attorney and own client.
(4)
Under the said case number: 17345/2022,
judgment is granted in favour of the applicant against the first and
the second respondents,
jointly and severally, the one paying the
other to be absolved, for: -
(a)
Payment to the applicant of the sum of
R40 551 603.77, plus interest thereon at the rate of prime per
annum, calculated daily
and compounded monthly in arrears from 6
April 2022 to date of payment, both days inclusive.
(b)
The applicant may not recover more than the
amount set out in paragraph 4(a) from the respondents and the
principal debtor, Cream
Magenta 98 Proprietary Limited (in
liquidation).
(c)
Payment of costs on the scale and between
attorney and own client scale.
JUDGMENT
Adams J:
[1].
On 01 August
2023 the above two opposed applications by the applicant, Grindrod
Bank Limited (‘Grindrod Bank’), against
the same two
respondents, came before me in the opposed Motion Court. Grindrod
Bank is the applicant in both of these applications
and the same
persons are the first and the second respondents in both
applications. The further commonality between these two opposed

motions is the fact that the factual matrices underlying the
applicant’s causes of action are almost identical in that they

are both based on Guarantees executed by the respondents in favour of
Grindrod Bank in respect of the due performance by two related

companies in terms of loan agreements. The two respondents also raise
the exact same defences in opposition to the claims by the
applicant
against them in the applications.
[2].
It is
accordingly convenient to deal with these two matters in one
judgment. The obvious difference between the matters relates
to the
specific amounts payable in terms of the loan agreements and the
guarantees.
[3].
In both
applications, Grindrod Bank applies to court for money judgments
against the first respondent (‘Allan’) and
the second
respondent (‘Dustan’) jointly and severally. In the first
application judgment is sought for payment of
the sum of R56 000 000
together with interest thereon and in the second application the
applicant seeks judgment in the
sum of R40 551 603.77 plus interest.
[4].
The salient
facts in both matters are by and large common cause.
[5].
In the first
application, Allan and Dustan executed a guarantee on 5 November
2020 (‘the guarantee’) in terms of
which they guaranteed
to Grindrod Bank ‘the guaranteed obligations’ (as
defined) and undertook to Grindrod that whenever
Eldacc Proprietary
Limited (‘Eldacc’) does not pay any amount when due under
or in connection with any of the defined
guaranteed obligations, the
respondents would within five business days of receipt of a written
request from Grindrod, pay that
amount as if they were the principal
obligor.
[6].
On 5 November
2020, Grindrod and Eldacc concluded a written mortgage bond
facilities agreement (‘the loan agreement’)
in terms of
which Grindrod afforded two facilities to Eldacc, facility 1 being a
mortgage bond facility in the maximum amount of
R55 880 500
and facility 2 being a mortgage bond facility in the amount of
R3 576 500.
[7].
In July 2021,
it became apparent that Eldacc would not be able to meet Its
obligations in terms of the loan agreement and consequently,
an
addendum was concluded on 1 September 2021, in terms of which the
development period as defined was extended by a further three
months,
which meant that it would expire on 7 October 2021. Eldacc would be
obliged to make payment of interest and the final repayment
date (as
defined) was extended for a further three months. Eldacc went into
default immediately and remains in default.
[8].
On 9 February
2022, Grindrod’s attorneys directed a letter of demand to
Eldacc, which demand was not complied with. Instead,
on 16 February
2022, Eldacc and a related entity, Cream Magenta 98 (Pty) Limited
(‘Cream Magenta’) – which company
also concluded a
loan agreement with Grindrod Bank and for which the respondents also
executed a guarantee – instituted an
application under case
number 2022/6023, seeking an interdict preventing Grindrod from
‘implementing credit control and recovery
procedures’
against Eldacc, Cream Magenta and the respondents until such time as
the mortgage bond over Erf [...] Elandshaven
is removed and Eldacc
and Cream Magenta are given a reasonable time to sell or finance that
immovable property and the release
of Erf [...] Elandshaven from
Grindrod’s security. I will revert to this application later on
in the judgment, as the relief
which was sought in that application
forms an important part of the respondents’ grounds of
opposition to the applications
for judgment against them.
[9].
It is worth
noting that Erf [...] is not owned by Eldacc, but rather by Cream
Magenta and is bonded in favour of Grindrod for the
debts owed by
Cream Magenta to Grindrod. It has nothing to do with the repayment of
the debt upon which the first application is
based. And this may very
well sound the death knell for the respondents’ case in the
first application.
[10].
All the same,
it is not in dispute that Eldacc is indebted to Grindrod in the
amounts of R55 705 947.65 and R2 420 106.17

together with interest thereon, and that these amounts have been due
and payable by Eldacc to Grindrod since during or about February

2022. This then means that, on first principles and having regard to
the wording of the guarantee, the respondents are liable to
pay to
Grindrod Bank the amount payable by them as per the undertaking they
gave in terms of the guarantee.
[11].
The aforegoing
sequence of events and the stated facts, with minor modifications,
are also of application in the second application.
The difference
being that, in that matter, the respondents executed the guarantee on
12 August 2020 and in terms of which they
guaranteed to Grindrod the
defined guaranteed obligations and undertook to Grindrod that
whenever Cream Magenta 98 (Pty) Limited
(‘Cream Magenta’)
does not pay any amount when due under or in connection with any of
the guaranteed obligations as
defined in the guarantee and undertook
to Grindrod, the respondents would within five business days of
receipt of a written request
from Grindrod, pay that amount as if
they were the principal obligor.
[12].
The maximum
liability of the respondents in the second application, jointly and
severally, is to make payment in a limited amount
of R43 000 000.
[13].
On 12 August
2020, Grindrod and Cream Magenta concluded a written mortgage bond
facilities agreement (‘the loan agreement’)
in terms of
which Grindrod made available to Cream Magenta a facility in the
amount of R42 677 500 of which R29 200 000
was to
be utilised to settle amounts owed to Mercantile Bank and R12 300 000
was to be utilised for working capital.
[14].
On 16 August
2020, a mortgage bond was registered by Cream Magenta in favour of
Grindrod to secure its indebtedness.
[15].
Cream Magenta
breached the terms of the loan agreement by failing to pay the agreed
monthly instalments and despite various demands,
it remains in
default.
[16].
As is the case in the first application,
there is no dispute – none whatsoever – that Cream
Magenta is indebted to Grindrod
in the amount of R40 551 603.77
together with interest thereon, and that this amount has been due and
payable by Cream Magenta
to Grindrod since during or about February
2022. This then means that, on first principles and having regard to
the wording of
the guarantee, the respondents are liable to pay to
Grindrod Bank the amount payable by them as per the undertaking they
gave in
the guarantee.
[17].
In both
applications, an answering affidavit was filed on behalf of the
respondents. The sum total of the defences raised by them
in respect
of the claims of Grindrod Bank were allegations to the effect that
the respondents are not liable to Grindrod, because:
(1) Grindrod
allegedly caused the respondents to be unable to make payments –
which assertion, as submitted by Mr Smit, Counsel
for Grindrod Bank,
is not supported by any fact and is contrary to the express terms of
the guarantee; (2) Grindrod had no right
to accelerate the loan
which, again, is contrary to the express terms of the loan agreement;
and (3) It is contended by the respondents
that the matters are
lis
pendens
,
in that there are other litigation pending between related entities
in relation to the very same debts owing to Grindrod, notably
the
application brought by Eldacc and Cream Magenta against Grindrod for
interdictory relief to stay debt collection processes
against them
and also Grindrod’s liquidation applications against both the
aforementioned companies.
[18].
A convenient
starting point for an analysis of the validity and the sustainability
of the respondents’ grounds of opposition
to the applications,
is the legal point of
lis
pendens
raised by them. A plea of
lis
alibi pendens
is based on the proposition that the dispute
(lis)
between the parties is being litigated elsewhere and therefore it is
inappropriate for it to be litigated in the court in which
the plea
is raised. The policy underpinning it is that there should be a limit
to the extent to which the same issue is litigated
between the same
parties and that it is desirable that there be finality in
litigation.
[19].
It
is trite that here are three requirements for a successful reliance
on a plea of
lis
pendens
.
They are: (1) that the litigation is between the same parties; (2)
that the cause of action is the same; and (3)
that
the same relief is sought in both. In that regard, see
Nestlé
(South Africa) (Pty) Ltd v Mars Incorporated
[1]
,
in which the SCA (per Nugent JA) held as follows: -
‘
[17]
There is room for the application of that principle only where the
same dispute, between the same parties, is sought
to be placed before
the same tribunal (or two tribunals with equal competence to end the
dispute authoritatively). In the absence
of any of those elements
there is no potential for a duplication of actions.’
[20].
In casu
,
none of these requirements are met. For starters, the respondents are
not parties to the other three applications and it cannot
possibly be
suggested that the litigation in those proceedings are the same as in
these applications. Moreover, the causes of actions
in those
applications are totally different from those in these applications –
for example liquidation of companies versus
claims for monetary
judgments.
[21].
Accordingly,
the respondents’ legal points
in
limine
of
lis alibi
pendens
are without merit and fall to be rejected without more.
[22].
In their
answering affidavits, the respondents also contend that there are
factual disputes and that Grindrod should have proceeded
by way of
action as opposed to motion proceedings. However, as was submitted by
Mr Smit, the material facts on which Grindrod relies
for the relief
are undisputed. Importantly, in both applications, the indebtedness
of the principal debtors to Grindrod and the
fact that it advanced to
them the amounts claimed are not seriously challenged. Therefore, in
my judgment, a real, genuine and
bona
fide
dispute of fact does not exist.
[23].
The
respondents also make much of the fact that, through no fault on
their part, they are unable to pay their debts. As righty contended

by Grindrod, this fact is entirely irrelevant. What is sought by
Grindrod, is a judgment for payment by the respondents. In any
event,
no facts are advanced by the respondents in support of their sweeping
statements in this regard.
[24].
As
regards the half-hearted dispute by the respondents of the quantum of
Grindrod’s claim, which the respondents contend to
be
contradicted in Grindrod’s own papers, the respondents’
contention entirely disregards the existence of the certificates
of
balance put up by Grindrod, and their legal efficacy. Absent evidence
by the respondents, the certificates of balance serve
as
prima
facie
evidence of the amounts claimed and, because no countervailing
evidence has been put up by the respondents, it has become
conclusive.
(
Senekal
v Trust Bank of Africa Ltd
[2]
).
Accordingly, I conclude that this ground of opposition is baseless.
[25].
That then
leaves the respondents’ contention that they have a
counterclaim against Grindrod for damages which resulted from
their
unlawful conduct. These damages, so the respondents aver, amount to
about R5 670 000 for rental income and R15 000 000

in respect of the loss of business reputation as a result of the
ill-considered liquidation applications by Grindrod. There are
a
number of difficulties with these claims, not the least of which is
the fact that, as submitted by Grindrod, they are completely

unsupported by facts. What is more is that these claims, if they do
exist, would be those of Eldacc and Cream Magenta and not of
the
respondents. Even more telling is the fact that the alleged claims
fly in the face of the express terms of the loan agreements
and the
guarantees and do not provide a defence to the respondents from
making payment to Grindrod. The terms of the loan agreements
and the
guarantees are clear. The guarantees oblige the respondents to make
payment to Grindrod whenever Eldacc and Cream Magenta
do not pay any
amount when due under or in connection with the guaranteed
obligations, within five business days of receipt of
written request
from Grindrod. That condition has been met and the respondents have,
despite the five business days’ written
request, failed to make
payment.
[26].
The simple
fact of the matter is that the nature and the wording of the
Guarantee Agreements between the respondents and Grindrod
Bank, as
well as the applicable legal principles. do not lend themselves to
the defences raised by the respondents in these applications.
It may
be apposite at this point, before I deal with the legal principles,
to cite the guarantee provisions of the guarantee agreements,
which
read thus:
‘
4
GUARANTEE
4.1
Guarantee and
indemnity
Subject
to clause 4.2, the Guarantors, jointly and severally and as principal
obligors and not merely as sureties and on the basis
of discrete
obligations enforceable against the Guarantors –
4.1.1
guarantee to the Lender the Guaranteed Obligations;
4.1.2
undertake to the Lender that whenever the Borrower does not pay any
amount when due under or in connection with
any Guaranteed
Obligations, the Guarantors shall, within 5 business days of receipt
of written request from the Lender, pay that
amount as if the
Guarantors were the principal obligor;
4.1.3
agree with the Lender that if any Guaranteed Obligation is or becomes
unenforceable, invalid, illegal or suspended,
the Guarantors shall,
as an independent and primary obligation, within 5 business days of
receipt of written request from the Lender
indemnify the Lender
against any cost, loss or liability the Lender incurs as a result of
the Borrower not paying any amount which
would, but for such
unenforceability, invalidity, illegality or suspension, have been
payable by it under any Guaranteed Obligation
on the date when it
would have been due, and the amount payable by the Guarantors under
this indemnity will not exceed the amount
the Guarantors would have
had to pay under this clause 4.1 if the amount claimed had been
recoverable on the basis of a guarantee.
Without limitation to the
generality thereof it is recorded that this clause 4.1.3 indemnity
applies to any Guaranteed Obligation
which becomes either entirely,
partially or conditionally suspended because of any business rescue
proceedings in relation to the
Borrower or which is compromised or
discharged in whole or in part pursuant to the adoption of a business
rescue plan in relation
to the Borrower or which is compromised in
terms of section 155 of the Companies Act; and
4.1.4
agrees that if the Borrower fails to pay or procure the payment of
the whole or any portion of a Repayment Amount
("Monthly
Repayment Deficit) payable on any Lease Period Payment Date in
accordance with the Facility Agreement, the Guarantors
shall pay such
Monthly Repayment Deficit to the Lender forthwith upon receipt of
written notice from the Lender requesting payment
of such Monthly
Repayment Deficit.
4.2
… … …’.
[27].
In
Phillips
& Ano v Standard Bank of South Africa Ltd & Others
[3]
,
the court dealt with an application to stop payment under a letter of
credit because the goods delivered were defective. The application

was refused. Goldstone J held as follows:
‘
In
my opinion the documentary credit issued in this case does indeed
constitute a contract independent of the contract of purchase
and
sale between the applicants and the third respondent. In respect of
that question, the dicta I have cited from the
Sztejn
and the Royal Bank of Canada
cases
appear to me to correctly reflect our own law, as well as the correct
approach which should be adopted by our Courts.’
[28].
Also,
in
Loomcraft
Fabrics CC v Nedbank Ltd & Another
[4]
Scott
AJA remarked as follows relative to the interpretation of guarantees:
‘
The
system of irrevocable documentary credits is widely used for
international trade both in this country and abroad. Its essential

feature is the establishment of a contractual obligation on the part
of a bank to pay the beneficiary under the credit (the seller)
which
is wholly independent of the underlying contract of sale between the
buyer and the seller and which assures the seller of
payment of the
purchase price before he parts with the goods forming the subject
matter of the sale.
The
unique value of a documentary credit, therefore, is that whatever
disputes may subsequently arise between the issuing bank's
customer
(the buyer) and the beneficiary under the credit (the seller) in
relation to the performance or for that matter even the
existence of
the underlying contract, by issuing or confirming the credit, the
bank undertakes to pay the beneficiary provided
only that the
conditions specified in the credit are met. The liability of the bank
to the beneficiary to honour the credit arises
upon presentment to
the bank of the documents specified in the credit, including
typically a set of bills of lading, which on their
face conform
strictly to the requirements of the credit. In the event of the
documents specified in the credit being so presented,
the bank will
escape liability only upon proof or fraud on the part of the
beneficiary.’
[29].
In
FirstRand
Bank Ltd v Brera Investments
CC
[5]
,
it was held as follows:
‘
The
guarantee in question – consisting as it did of an undertaking
to make payment of an amount of money on the happening
of a specified
event – was of the same nature as a performance guarantee,
performance bond or letter of credit. The autonomy
of a guarantee of
this nature was well recognised; it must be paid according to its
terms. It was only where fraud was involved
that the issuing
institution may decline liability, and in the present case no such
issue arose.’
[30].
In
Petric
Construction CC t/a AB Construction v Toasty Trading t/a Furstenburg
Property Development and Others
[6]
,
a dispute arose between the applicant and the first respondent as to
the validity and legality of the first respondent's purported

termination of the principal building agreement, which issue was
referred to arbitration.   Pending resolution of the

dispute, the applicant approached the High Court on motion for an
order restraining the second and third respondents from paying
the
first respondent any amount claimed by the first respondent in terms
of the construction guarantee. The application was granted
in the
form of a
rule
nisi
.
Sandi J held that the alleged disputes between the applicant and the
first respondent were irrelevant to the construction guarantee,
that
the first respondent had complied with the provisions of the
construction guarantee, and, there being no evidence that the
first
respondent had committed fraud, the second respondent was obliged to
comply with the terms thereof. At para [27] the Court
remarked as
follows:
‘
The
alleged disputes between the applicant and the first respondent are
irrelevant to the construction guarantee. Irrelevant too
is clause
36.6 of JBCC Contract which prohibits cancellation of the agreement
by the respondent on the ground of a material breach
of the JBCC
agreement. The second respondent, the guarantor, is not taking part
in these proceedings and has not alleged any reason
why it should not
pay the guarantee to the first respondent. It is the applicant that
invites the court to go behind the terms
of the guarantee. The court
cannot do so. The parties to the guarantee are the first and second
respondents. The applicant plays
no part in it.’
[31].
Applying these
principles
in
casu
, I
conclude that the respondents’ defences to the applicant’s
claims are bad in law.
[32].
In the
circumstances, Grindrod is, in both applications, entitled to
judgment against the respondents for payment, jointly and severally,

of the amounts claimed.
[33].
There is one
more issue which I need to deal with and that relates to applications
brought rather belatedly by the respondents for
the stay of these
proceedings, pending appeals against a judgment which went against
Eldacc and Cream Magenta in the applications
alluded to above. I
intend giving short shrift to these applications for the simple
reason that, if regard is had to my aforegoing
findings, there is no
point in staying an application which should fail howsoever one views
the main application, which is sought
to be stayed. The point is
simply that one of the requirements for the stay of proceedings is
that same must be in the interest
of justice, which will not be the
case if there are no prospects of success for the applicant for the
stay of the proceedings.
Those applications therefore fall to be
dismissed.
Conclusion
and Costs
[34].
In sum, in
both applications, Grindrod have made out cases for the relief sought
by them and judgment should therefore be granted
in their favour
against the respondents.
[35].
As
regards costs, the general rule is that the successful party should
be given his costs, and this rule should not be departed
from except
where there are good grounds for doing so, such as misconduct on the
part of the successful party or other exceptional
circumstances. See:
Myers
v Abramson
[7]
.
[36].
I can think of no reason why I
should deviate from this general rule. The agreements in question
provide that costs, in the event
of litigation, should be awarded on
the scale as between attorney and own client.
Order
[37].
Accordingly, I make the following
order: -
(1)
Under case number: 17343/2022, the first
and the second respondents’ application to stay the main
application be and is hereby
dismissed with costs on the scale as
between attorney and own client.
(2)
Under the said case number: 17343/2022,
judgment is granted in favour of the applicant against the first and
the second respondents,
jointly and severally, the one paying the
other to be absolved, for: -
(a)
Payment to the applicant of the sum of
R56 000 000, plus interest thereon at the rate of prime per
annum, calculated daily
and compounded monthly in arrears from 6
April 2022 to date of payment, both days inclusive.
(b)
The applicant may not recover more than the
amount set out in paragraph 2(a) from the respondents and the
principal obligor, Eldacc
Proprietary Limited (in liquidation).
(c)
Payment of costs on the scale and between
attorney and own client scale.
(3)
Under case number: 17345/2022, the first
and the second respondents’ application to stay the main
application be and is hereby
dismissed with costs on the scale as
between attorney and own client.
(4)
Under the said case number: 17345/2022,
judgment is granted in favour of the applicant against the first and
the second respondents,
jointly and severally, the one paying the
other to be absolved, for: -
(a)
Payment to the applicant of the sum of
R40 551 603.77, plus interest thereon at the rate of prime per
annum, calculated daily
and compounded monthly in arrears from 6
April 2022 to date of payment, both days inclusive.
(b)
The applicant may not recover more than the
amount set out in paragraph 4(a) from the respondents and the
principal debtor, Cream
Magenta 98 Proprietary Limited (in
liquidation).
(c)
Payment of costs on the scale and between
attorney and own client scale.
L R ADAMS
Judge of the High
Court
Gauteng Local
Division, Johannesburg
HEARD ON:
1
st
August
2023
.
JUDGMENT DATE:
7
th
August
2023 – judgment handed down electronically
FOR APPLICANT IN BOTH
APPLICATIONS
Advocate J E Smit
INSTRUCTED BY:
Edward Nathan
Sonnenbergs Inc, Umhlanga Rocks
FOR FIRST AND SECOND
RESPONDENTS IN BOTH APPLICATIONS:
Advocate Jan Wentzel
INSTRUCTED BY:
Advocate Jan Wentzel
(Advocate with Trust Account) Elandshaven, Germiston
[1]
Nestlé
(South Africa) (Pty) Ltd v Mars Incorporated
2001 (4) SA 542
(SCA) at para 17;
[2]
Senekal
v Trust Bank of Africa Ltd
1978 (3) SA 375 (A);
[3]
Phillips
& Ano v Standard Bank of South Africa Ltd & Others
1985 (3) SA 301 (W);
[4]
Loomcraft
Fabrics CC v Nedbank Ltd & Another
1996 (1) SA 812 (A);
[5]
FirstRand
Bank Ltd v Brera Investments
CC 2013 (5) SA 556 (SCA);
[6]
Petric
Construction CC t/a AB Construction v Toasty Trading t/a Furstenburg
Property Development and Others
2009 (5) SA 550 (ECG);
[7]
Myers
v Abrahamson
1951(3)
SA 438 (C) at 455