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[2011] ZAGPPHC 5
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ABSA Bank Limited v Groenwald (14249/2010) [2011] ZAGPPHC 5 (14 January 2011)
NOT
REPORTABLE
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTH
GAUTENG HIGH COURT, PRETORIA)
Case
No: 14249/2010
DATE:
14/01/2011
In
the matter between:
ABSA
BANK
LIMITED
....................................................................................
APPLICANT
And
FRANCA
COLOMBA
GROENWALD
........................................................
RESPONDENT
JUDGMENT
MAVUNDLA
J;
[1]
This is an opposed application for summary judgment against the
respondent in respect of
claim
1:
For
payment of an amount of R284 177. 35 together with interest at the
rate of 18.5 per cent per annum capitalized monthly from
18 December
2009 to date of payment together with taxed attorney and client cost;
in respect of
claim
2
for
payment of an amount of R257488. 56 together with interest at the
rate of 11.5 per cent per annum capitalized monthly from 18
December
2009 to date of payment together with taxed attorney and client cost.
[2]
The amount claimed in respect of claim 1 is the balance of the
principal debt due by Simply Fish [Edenvale] CC to the plaintiff.
The
amount claimed in claim 2 is the balance of the principal debt due by
Simply Fish [Edenvale] to the plaintiff.
[3]
The liability of the defendant in respect of both claims arises from
the fact that it signed on 13 October 2007 surety in favour
of the
plaintiff "for the repayment of any sum or sums of money,"
which Simply Fish [Edenvale] owes or may owe to the
Bank from
whatever cause arising and the due fulfilment of all liabilities
incurred by the Debtor in his own name or in the name
of any business
under which he may be trading..."
1
.
[4]
The defendant in opposing the summary judgment application contends
in its affidavit that the letter of demand never reached
him because
it was sent to Post Office box 41348 Garsfontein. And therefore there
was no compliance with section 129(1 )(a).
[5]
Defendant further avers that during the negotiations with regard to
the cheque account claim 1 and simultaneously claim 2 it
was expected
of her to sign as surety for the increase of the outstanding bond
account of Steffenini Property Devolvement Trust
for the additional
security for Simply Fish Edenvale CC. held at the Plaintiff. The
increased bond loan would act as security for
the duration of the
loan in respect of claim 2.
[6]
According to the defendant it was never agreed in her presence nor
discussed with her that Simply Fish Edenvale CC cheque would
be
overdrawn or such facility. She however further states that she earns
an amount of R1300. 00 per month and had to make several
payments
because the existing bond of Steffenini Property Development was
already R16 000, 00 per month. She made it clear to the
plaintiff's
representatives that were there to be further debt given to her she
would not be in a position to repay, however she
was informed that
the bond increase was merely cosmetic. The defendant further avers
that it was never her intention to sign the
surety for any liability
of
Simply
Fish Edenvale CC and that the documents she signed in that regard be
used.
[7]
It was further submitted on behalf of the defendant that there was no
express agreement to increase the loan and that the conduct
of the
plaintiff in allowing such increase breached the agreement and that
therefore the respondent should not be held liable for
such increased
outstanding amount. In this regard I was referred to the matter of
Fry
and Another v First National Bank of South Africa Ltd
1996
(4) SA 924.
It is further contended that the particulars of claim do
not state what the principal debt was.
[8]
The plaintiff concedes that the letter of demand was remitted to the
aforesaid mentioned postal address. It is further submitted
that the
plaintiff subsequently corrected this mistake by sending another s129
(1) (a) letter dated 9 September 2009 to 682 Honoria
Street
Garsfontein (chosen domicilium). This latter letter was delivered by
the Sheriff at the aforesaid mentioned address on the
said date. It
is submitted that the second letter was a rectification which should
be accepted by this Court.
[9]
It was further submitted on behalf of the plaintiff that the
contention by the defendant with regard to the alleged purpose
she
signed the agreement for, this is not admissible because it is parole
evidence. It is further submitted that the particulars
of claim fully
set out what the clam is. It has further been submitted on behalf of
the plaintiff that the defendant does not state
what the limitation
of the agreement was. It is finally submitted that the defendant does
not have a
bona
fide
defence
and that the summary judgment should be granted against the
defendant.
[10]
It is trite law that in order to successfully resist summary judgment
application, the defendant must satisfy the Court that
he has a
bona
fide
defence
by disclosing fully the nature and materia] facts upon which his
defence is premised, which appear, if proven on trial,
to establish a
bona
fide
defence
which is good in law;
vide
Maharaj
v Barclays National Bank Ltd
2
[11]
The defence so disclosed must go to the merits, and not merely
technical,
vide
Evelyn
Haddon & Co Ltd
v
Leonjanko
(Pty) Ltd
3
.
[12]
As
pointed out earlier the contention of the defendant is that that
there was no express agreement to increase the loan. The deed
of
Suretyship expressly state that the defendant bound herself for the
repayment "of any sum or sums of money, which the Debtor
owes or
may owe to the Bank from whatever cause arising and the due
fulfilment of all liabilities incurred...". The defendant
seeks
to explain what the terms of the agreement
were.
By so doing he is attempting to introduce extrinsic evidence. Further
with regard to her intention this is equally parole
evidence. In this
regard it is apposite to cite with respect Mlambo JA who said in
Fedbond
Participation Mortgage v investec Employee
4
that:
"[14]
Properly viewed Fedbond's argument in this regard suggests that the
written agreement does not contain all the terms
agreed by the
parties and seeks admission of facts that add to the terms thereof.
This is referred to as the intergration rule
in terms of which
extrinsic evidence of additional terms of a written agreement not
embodied therein is admitted. See
Union
Government v Vianini Ferro-Concrete Pipes
5
where
the following was stated:
"Now
this Court has accepted the rule that when a contract has been
reduced to writing, the writing is, in general, regarded
as the
exclusive memorial of transaction and in a suit between the parties
no evidence to prove its terms may be given save the
document or
secondary evidence of its contents, nor may the contents of such
documents be contradicted, altered, added to or varied
by parole
evidence..."
[13]
The matter of
Fry
and Another v First National Bank of South Africa Ltd (supra)
relied
upon by the defendant; in my view does not assist the defendant in
the light of the
Fedbond
Participation Mortgage v Investec Employee (supra)
matter.
I therefore find that the defendant cannot go outside the written
contract to explain what was agreed upon and what his
understanding
of the agreement or intention was when she signed the surety. I find
that he is bound by the terms as reflected in
the deed of suretyship
she signed.
[14]
The contention by the defendant that there was no compliance with
s129(1) is premised on the fact that the first letter of
demand was
sent per registered mail to P O Box 41349 Garsfontein and not to
chosen domicilium address 682 Honoria Street Garsfontein.
The
defendant alleges that this letter of demand never came to her
attention.
[15]
In the unreported matter of
Firstrand
Bank Ltd. And Carl Beck Estates (Pty) Ltd and Carl
Bec/c
6
Satchwell J, stated as follows:
"
Sureties
and NCA
[16]
The second respondent sought to rely on the argument that he, as a
co-principal debtor, was a consumer to whom a notice in
terms of
section 129 was required to be given.
[17]
The second respondent entered into a surety agreement whereof he
undertook to bind himself in favour of the plaintiff for all
debts of
the first respondent in unlimited amount. He signed that suretyship
undertaking as 'surety and co-principal debtor'.
[18]
There is no doubt that the suretyship obligations of the second
respondent theoretically fall within the definition of a credit
agreement which encompasses a credit guarantee in terms whereof "a
person undertakes or promises to satisfy upon demand any
obligation
of another consumer in terms of a credit facility or a credit
transaction..." However, section 8(5) requires the
credit
guarantee to apply to the obligations of another consumer in terms "a
credit transaction to which this Act applies".
I
have
already found that the NCA does not apply to the mortgage agreement
between the applicant and the first respondent. Accordingly,
the
obligations of the first respondent to the applicant were not
incurred in terms of a credit transaction to which the NCA applies.
The second respondent therefore cannot claim that the NCA applies to
him on the basis that the obligations arise in terms of a
credit
guarantee as set out in section8(5) of the NCA."
[19]...
[20]
The following reasoning of Trollip JA IN Neon and Cold Cathode
Illuminations (Pty) Ltd v Ephron
1978 (1) SA 463
at 471, credit was,
in fact, not granted to the second respondent. The loan finance
granted and the mortgage agreement is and was
between the applicant
and first respondent. The second respondent was not advanced credit
and did not become party to the contract
between the applicant and
the first respondent He did not contract with the applicant to
acquire himself or be a party to the agreement
between applicant and
the first respondent.
[21]
The second respondent signed as surety and co-principal debtor. The
right enforceable by the applicant against the second respondent
arises from the contract of suretyship. The contract between
applicant and second respondent is separate and distinct from the
bond agreement between the applicant and second respondent, although
it is accessory to it. The second respondent is not a consumer
and
did not receive credit. He is a guarantor of a consumer's obligation
to a credit giver. Second respondent's contractual relationship
with
the applicant remains ancillary to the main agreement between the
applicant and the first respondent.
[22]
The
authorities on this point are clear. A surety who has bound himself
as surety and co-principal debtor remains a surety whose
liability
arises wholly from the contract of suretyship. Signing as surety and
co-principal debtor does not render a surety liable
in any capacity
other than a surety who renounced the benefits of exclusion and
division. As De Viliiers CJ stated, "the use
of the words
'co-principal debtor' does not transform the contract into any other
than suretyship".
[16]
In casu, the defendant's indebtedness in respect of both claims
arises from the fact that she signed as surety for the payment
of any
amount whatever the source owed by Simply Fish Edenvale CC to the
plaintiff. I find the words of Trollip JA
7
apposite
in casu and find that the second respondent is not a consumer and did
not receive any credit from the applicant. I also
find that the NCA
does not apply in casu and it was therefore not necessary for the
applicant to give any notice to the second
respondent in terms of
section 129
8
.
[17]
Assuming that the Credit Act applies in casu, which I do not concede,
I take note of the fact that the plaintiff concedes that
the first
letter of demand was not sent to the chosen domicilium. However, this
letter was remitted per registered post. In Munien
v BMW Financial
Services (SA) (Pty) Ltd
9
the Court said: "In
Van
Niekerk and Another v Favel and Another
10
it was held that the requirement of notifying the purchaser of the
contract concerned and making demand of the purchaser to rectify
the
breach of contract was satisfied, provided that the letter had in
fact been sent to him by registered post, whether or not
it was
received by the purchaser."
[18]
In
casu
the
first letter was remitted by registered post. It is immaterial
whether the defendant received it or not, but the plaintiff,
in my
view, substantially complied with the need to bring to the attention
of the defendant that he was in default and should regularise
her
breach.
[19]
The plaintiff subsequently remitted through the sheriff a second
letter of demand on 9 September 2010 to the chosen
domicilium.
The
second letter, save for the address, is substantially the same as the
first letter. Although the applicant did not send the
letter of
demand to the chosen address, in my view, both letters taken
together, it can be concluded, as I do, that the plaintiff
has
substantially complied with the provisions of s129 (1).
[20]
With regard to the contention of the defendant that the particulars
of claim do not state what the principal debt was, I need
to point
out that the defendant in his opposing affidavit must disclose fully
the nature and the grounds of his defence and the
material facts upon
which he relies,
vide
Maharaj v Barclays National Bank Ltd (supra).
The
contention referred to in this paragraph has not been raised in the
defendant's affidavit and it comes as an after thought.
Technical
defences that do not go against the merits but merely on the language
of the formulation of the particulars of claim
are not to be
countenanced,
vide
Trans-African
Insurance C
O.
Ltd
v Maluleka.
11
[21]
The plaintiff issued simple summons which are, in my view, lucid that
the first claim is in respect of the cheque account and
that the
amount owing is R284 17735 and that the second claim is in respect of
the loan agreement for the payment of the amount
of R257 488.50 being
the balance. The defendant can hardly claim, in my view that he is
prejudiced in the manner the claims are
coughed and cannot hide
behind the fact that the principal debt has not been stated;
vide
JNO.
G Teale & sons Ltd v Vrystaatse Plantediens Ltd.
12
In
the premises i find that there is no merit in this contention as
there is no prejudice
suffered
by the defendant as he can clearly see what the claims are for.
[22]
In
the premises summary judgment is hereby granted against the
respondent/defendant as follows:
AD
CLAIM
1
1.
Payment of the sum of R284 177-35;
2.
Interest at the rate of 18.5 per cent per annum as from
1
8
December
2009
and 11 per cent 40 date of payment;
A
3.
Payment of cost of suit as between attorney and client, to be taxed.
AD
CLAIM 2
1.
Payment of the sum of R257 488. 56;
2.
Interest at the rate of
1
1.5
per cent per annum as from 18 December 2009 and
11
per cent 40
date
of payment;
3.
Payment of cost of suit as between attorney and client, to be taxed.
N.M.
MAVUNDLA
JUDGE
OF THE HIGH COURT
date
of hearing : 19/10/2010
date
of judgement : 14 /01/2011
Applicant
Att : Rooth Wessels Motla Conradie Inc.
Applicant
Adv : Adv. H.J.I Vorster
Respondant
Att : Claudia Privato Inc.
Respondant
Adv : Adv. C. Harms
1
1
Clause 1 of the Suretyship attached as annexure A to the summons.
2
1976
(1) SA418 where at 426 A-C Corbett J.A. said that: "
Accordingly, one of the ways in which a defendant may successfully
oppose a claim for summary judgment is by satisfying the Court by
affidavit that he has a bona vide defence to the claim. Where
the
defence is based upon facts, in the sense that material facts
alleged by the plaintiff in his summons, or combined summons,
are
disputed or new facts are alleged constituting a defence, the Court
does not attempt to decide these issues or to determine
whether or
not there is a balance of probabilities in favour of the one or the
other party. Ail the Court enquires into is: (a)
whether the
defendant has "fully" disclosed the nature and grounds of
his defence and the material facts upon which
it is founded, (b)
whether on the facts so disclosed the defendant appears to have, as
to either the whole or part of the claim,
a defence which is hona
fide and good in law. If satisfied on these matters the Court must
refuse summary judgment either wholly
or in part, as the case may
be... while the defendant need not deal exhaustively with the facts
and the evidence relied upon
to substantiate them, he must at least
disclose his defence and the material facts upon which it is based
with sufficient particularity
and completeness to enable the Court
to decide whether the affidavit discloses a bona fide defence. (See,
generally, Herb Dyers
(Pty) Ltd v Mahommed and Another
1965 (1) SA
31
(T); Caltex Oil (SA) Ltd v Webb and Another
1965 (2) SA 914
(N),
Arend and Another v Astra Furnishers (Pty) Ltd
[1974 (1) SA 298
(C)
] at 303-4; Shepstone v Shepstone
1974 (2) SA 462
(N) at 467E-H. At
the same time defendant is not required to formulate his opposition
to the claim with the precision that he
would be required of a plea;
nor does the Court examine it by the standards of pleading (See
Estate Potgieter v Elliott 1948
(I) SA 1084 at 1088-9; Herb Dyers
case supra at 32.).
3
1967(SA)
662(0) at
666A.
4
[2010]
4 ALL SA 467
(SCA)
at
473c—d.
5
(Pty)
Ltd
1941
AD 43
at 47. See also Johnson v Leal 1980 (3) 927 (A) at 944B-D
[Also reported at
(1980) 2 ALL SA 366
(a)-ED].
6
2009
(3) SA 384at
389H-390E.
7
Vide Neon and Cold Cathode Illuminations (Pty) Ltd v Ephron (supra)
at 471: "credit was, in fact, not granted to the second
respondent. The loan finance granted and the mortgage agreement is
and was between the applicant and first respondent. The second
respondent was not advanced credit and did not become party to the
contract between the applicant and the first respondent He
did not
contract with the applicant to acquire himself or be a party to the
agreement between applicant and the first respondent"
8
Vide
Firstrand Bnak Ltd v Carl Beck Estates (Pty) Ltd and Carl Beck
(supra) at paragraph: "5 Section 129 of the NPA requires
a
credit provider to comply with certain procedures before commencing
legal proceedings against a defaulting consumer. These
procedures
require, inter alia, that the credit provide give the consumer
written notice of the default and propose referral
to an entity
which may resolve any dispute or result in agreement on a plan for
full payment. Any approach by the credit provider
to court must
comply with certain time periods linked to the giving of such
notice."
9
2010(1)
SA 549 at 559 D-E.
10
2006
(4)SA 548(W).
11
1956
(2) SA 273
(A.D.) at 278 F-G:
"No
doubt parties and their legal advisers should not be encouraged to
become slack in the observance of the Rules, which
are an important
element in the machinery for the administration of justice. But on
the other had technical objections to less
than perfect procedural
steps should not be permitted, in the absence of prejudice, to
interfere with the expeditious and, if
possible, inexpensive
decision of cases on their real merits
„
12
1968 (4) SA 371
A at 374 G - H: Standard Bank of South Africa Ltd v
Roestof
2004 (2) SA 492
WLD,