About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Western Cape High Court, Cape Town
SAFLII
>>
Databases
>>
South Africa: Western Cape High Court, Cape Town
>>
2010
>>
[2010] ZAWCHC 427
|
|
Nebdank v Minnaar en Ander (9512/2010) [2010] ZAWCHC 427 (25 June 2010)
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE HIGH COURT, CAPE TOWN)
CASE
NUMBER
:
9512/2010
DATE
:
25
JUNE 2010
In
the matter between:
NEDBANK
…...........................................................................................
Plaintiff
and
ROELOF
JOHANNES MINNAAR
….................................................
1
st
Defendant
ALAN
GEORGE NELSON
…..........................................................
2
nd
Defendant
JUDGMENT
DAVIS,
J:
This
is an application for summary judgment. The plaintiff institute it
against the defendants for payment by each of the sum of
R107 952,35,
being half the debit balance of an overdraft facility granted by the
plaintiff to the defendants jointly in terms
of the written contract
and interest thereon at the rate of 15% per annum, calculated daily
and capitalised monthly from 7 May
2010 to date of payment, both
dates inclusive. Plaintiff relies on certificates of balance to prove
the quantum of the claim, the
amounts appearing in the certificates
and the calculation of interest had not been disputed.
Two
defences had been raised by the defendants. Firstly, defendants'
claim is in the form of a
bona
fide
defence
that the claim against them is tainted by the contravention of
section 38(1) of the Companies Act 61 of 1973 (Act), in that
the
agreement on which the plaintiff relies was designed to make funds
available to a company, Prime Pine Products (Pty) Limited,
to enable
the company to assist the defendants to buy shares in the company. It
is trite law that the defendants bear an onus of
showing that there
has been a contravention of section 38 of the Companies Act.
Significantly
in this regard, section 38(2)A of the Act, which was introduced into
the Companies Act in 2006, waters down the scope
of the prohibition
to a considerable extent in keeping with modern company law. It
provides that the prohibition against giving
financial assistance for
the purchase of shares in a company or its holding company does not
apply, if the company's board is satisfied
that, subsequent to the
transaction, the consolidated assets of the companies, fairly valued
will exceed its consolidated liabilities.
Further, subsequent to
providing assistance for the duration of the transaction, the company
will be able to pay its debts as they
become due in the ordinary
course of business, and that the terms upon which the assistance will
be given are approved by a special
resolution of the company.
Mr
Kruger
,
who appears on behalf of the plaintiff, was correct when he submitted
that there is no indication in the opposing papers that
the board had
come to the conclusion that the company was not sufficiently solvent
and liquid to justify the financial assistance.
A
bland assertion that section 38 is contravened is surely not
sufficient to indicate a
bona
fide
defence.
The second defence concerns a defence of
lis
pendens,
namely
that the entire facility agreement upon which the claim is
predicated, is subject to proceedings in the George Magistrate's
Court. It is trite law that for a valid plea of
lis
pendens
to
be sustained, the actions must be between the same parties and upon
the same cause of action, instead of simply the same subject
matter.
In
the first place, it appears to be common cause that only the first
defendant and his wife are parties in the magistrate's court
action
and not the second defendant. But there is a further difficulty.
Defendant does not attach the summons to its particulars
of claim in
the magistrate's court action to support its contention that
lis
pendens
applies.
It, therefore, makes it very difficult, if not impossible, for this
Court to ascertain whether this is a sustainable defence
and, most
certainly the least that could have been expected of the defendants,
was to indicate by way of the provision of the relevant
documentation, that this was a case in which the same claim has been
brought in the George Magistrate's Court, leaving aside, I
might add,
the difficulties of the identity of the parties.
It
was, however, contended that if regard was had to clause 3 of the
facilities agreement, there was a set of provisions relating
to loans
which were interlinked. The argument ran as follows: There were two
categories of loans, one to PPP and another to R J
Minnaar and A J
Nelson; that is the two defendants. Insofar as the latter were
concerned, the facilities were broken into three,
a letter of
guarantee, a temporary overdraft facility and insofar as it was
relevant, an overdraft facility of R160 000, which
is the subject of
the present proceedings. The argument, therefore, proceeded thus: all
three forms of loan to the defendants form
part of the same loan
agreement and, therefore, once this was litigated in the George
Magistrate's Court, in effect the same proceedings
were again being
heard; thus in two different forums.
The
difficulty with this contention is that these were three
separate
loans made by plaintiff to defendants, albeit that they
were
contained in one agreement. On its own, without more, it
cannot be
suggested, in my view, that it is a
bona
fide
defence
to
say that because there is litigation insofar as one or other
of
these facilities or guarantees are concerned, it must,
therefore
follow that there is the same litigation insofar as a
recycled
overdraft facility is concerned. As I have already
noted, absent
any indication as to the summons and the
particulars of claim in
the magistrate's court action, there is no
support for the
contention that
lis
pendens
actually
applies
Therefore, the merits of this defence are impossible
to
penetrate.
In
my view, the defences are not
bona
fide
in
terms of the standard of evidence required for their evaluation, in
an application for summary judgment. For these reasons, therefore,
the defendants are found to lack the
bona
fide
defence
to the plaintiff's claim, which would justify dismissal of the
summary judgment. Accordingly summary judgment is granted
as prayed,
with costs.
DAVIS,
J