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[2011] ZAGPPHC 109
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Standard Bank of SA Ltd v Pienaar (59159/2009) [2011] ZAGPPHC 109 (5 May 2011)
NOT
REPORTABLE
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTH
GAUTENG HIGH COURT. PRETORIA)
Case
No: 59159/2009
DATE:05/05/2011
In
the matter between:
STANDARD
BANK OF SA LTD
…...................................................................
Applicant/Plaintiff
And
BAREND
DANIEL
PIENAAR
................................................................
Respondent/ Defendant
JUDGMENT
MAVUNDLA,
J.
[1]
This is an opposed application for summary judgment against the
defendants, for:
(1) payment in the amount
of R3 755 624, 19;
(2)
interest at the rate of 13, 5 percent per annum, calculated daily and
compounded monthly in arrears, from 25 July 2009 to date
of final
payment, both dates inclusive, from 25 July 2009;
(3)
Costs of suite; and
(4)
Further and/or alternative relief.
[2]
The plaintiff's claim arises from a written agreement and an oral
agreement. The terms of the written agreement are contained
in
annexure B. It is common cause that the plaintiff lent and advanced
moneys to the defendant pursuant to an overdraft facility
provided by
the plaintiff to the defendant through a Business Current Account
Overdraft Agreement, account number 330 504 290 held
at Modimolle
Branch.
[3]
It is also common cause that an amount of R1 500 000. 00 was loaned
and advanced to the defendant. The loan was advanced for
purposes of
working capital. There was no fixed term to pay the overdraft account
but the facility would be reviewable and payable
in full on demand in
the event the defendant defaulting in terms of the conditions
applicable as set out in clause 10 of Part B
of annexure B. The loan
was subject to an interest rate of 3% per annum above the plaintiff's
lending rate from time to time, which
at the time of the signing of
the agreement, the plaintiff's prime lending rate was 14.5% (fourteen
point five percent) per annum.
[4]
The plaintiff has further alleged in paragraph 4.5 of the particulars
of claim, that "In terms of a further oral agreement
entered
into between the Plaintiff and the Defendant during September 2008,
the Defendant was afforded a temporary facility whereby
the initial
amount was increased to R3, 500, 000, 00 and which amount would be
repaid within three months. The repayment of the
temporary facility
would then reduce the loan to the initial facility of R1, 500, 000."
[5]
According to the plaintiff's paragraph 6 of the particulars of claim:
the defendant has breached the terms of the agreement
and as the
result the plaintiff has terminated the agreement.
The
plaintiff further averred in his particulars of claim that the
balance on the business current account was on 24 August 2009
the sum
of R3, 755, 624. 19 plus interest thereon at the rate of 13.5 percent
per annum, calculated daily and compounded monthly
in arrears from 25
July 2009 to date of final payment, both dates inclusive. The
plaintiff has attached annexure C which is a certificate
of balance
duly signed by a manager if the plaintiff.
[6]
The plaintiff has further alleged in the particulars of claim that,
it has complied with the provisions of the National Credit
Act and
attached the certificate of compliance as annexure D. It has further
averred that it is a registered credit provider in
terms of
s40
of
the
National Credit Act 34 of 2005
and in terms of
s41
of the Act,
registered to provide developmental credit. In this regard it
attached a copy of the issued certificate as annexure
E. It further
accordingly is claiming the alleged balance in the amount of R3, 755,
624. 19 together with the ancillary relief.
[7]
In resisting the summary judgment application the defendant contends
that during the operative period of the agreement, i.e
3 March 2008
to date of summons, defendant did not breach the provisions of clause
10 of the agreement. It is submitted that this
defence, if proven at
trial, constitute a valid defence for purposes of summary judgment.
It is contended that there are no factual
circumstances pleaded to,
substantiating the conclusion by the plaintiff, that defendant is in
breach of the agreement, save pleading
in general terms the alleged
breach. It is submitted that the summons as they stand are vague and
embarrassing and susceptible
to an exception.
[8]
The second defence raised by the defendant is that the written
agreement itself precludes any other agreement unless in writing
and
signed by both parties. The plaintiff's reliance of the oral
agreement, it is submitted is contrary to the Schifrin principle
enunciated in Brisly v Drotsk
1
y
:
the well known caveat subscritor locus classicus. It is further
submitted that the plaintiff does not disclose a cause of action
pertaining to the alleged increase of the overdraft facility in an
amount of R2million. 00.
[9]
It is trite that in summary judgment applications, for the defendant
to resist an order being granted against it, must satisfy
the court
that he has a bona fide defence to the action and disclose fully the
nature and grounds of the defence and the material
facts relied upon;
vide Breitenbach v Fiat SA (Edms) Bpk
2
.
[10]
In the matter Breitenbach v Fiat SA (Adms) Bp/c
3
Colman J commenting about
Rule 32(3)(b)
said: "It must be
accepted that the sub-rule was not intended to demand the impossible.
It cannot, therefore, be given its
literal meaning when it require
the defendant to satisfy the Court of the bona fides of his defence.
It will suffice, it seems
to me, if the defendant swears to a
defence, valid in law, in a manner which is not inherently and
seriously unconvincing."
[11]
It is worth mentioning that the relevant written agreement attached
to the summons, it is stated, inter alia, at the following
clause:
"13.4 Any agreed
changes to this agreement will be made in writing and signed by both
you and us in accordance with the Act.
We will, no later than 20
(twenty) business days after the date of the agreed change to this
agreement, Deliver to you a document
reflecting the agreed
amendment." It is this clause the defendant contends that it is
a non-variation clause, which debars
the plaintiff from relying on
the alleged oral agreement.
[12]
I find it appropriate to refer to the matter of HNR Properties CC And
Another v Standars Bank of SA LTD
2004 (4) SA 471
(SCA) at 479C-E
where the Supreme Court of Appeal said: " In SA Sentrale Ko-op
Graanmaatskappy Bpk v Shrifren en Ander
1964 (4) SA 760
(A) this
Court held that the terms in a written contract providing that al
amendments to the contract have to comply with specified
formalities
is binding. The principle has been consistently reaffirmed, most
recently by this Court in Brisly v Drotsky
2002 (4) SA 1
(SCA). (A
non-variation clause is not necessarily in a contract of suretyship
by reason of the provisions of
s6
of Act 50 of 1956—Tsaperas
and Others v Boland Bank Ltd (supra at 725B-C—but that does not
detract from legal force
of such clause where it exists.0 Courts have
in the past, often on dubious grounds, attempted to avoid the
Shrifren principle where
its application would result in what has
been perceived to be harsh result. Typically, reliance has been
placed on waiver and estoppel.
No doubt in particular circumstances a
waiver of rights under a contract containing a non—variation
clause may involve a
violation of the Shifren principle, for example,
where it amounts to a pactum de non petendo or an indulgence in
relation to previous
imperfect performance. 9For an interesting
discussion on the topic, see Hutchison 'Non-variation Clauses in
Contract: Any Escape
from Shifren Straitjacket' (2001 118 SLJ 720.)
But nothing like that arises in the present case."
[13]
The Shifren principle has overwhelmingly been found by the Supreme
Court of Appeal to be still good law
4
.
In view of the above authorities, it cannot be said that the second
defence raised by the defendants is not arguable. Put differently,
I
am not persuaded that the case of the plaintiff is unanswerable
5
.
I am of the view that the defendant has demonstrated that he is bona
fide in wanting to defendant the matter.
[14]
I deem it not necessary to interrogate the first defence raised by
the defendants. In my view, it is appropriate that the defendants
be
afforded an opportunity to have their entire defences ventilated in
trial.
[15]
In the result I make the following order:
1.
That the application for summary judgment is dismissed;
2.
That leave to defend is granted to the defendants;
3.
That the costs of this application shall be costs in the cause.
N.M.
MAVUNDLA
JUDGE
OF THE HIGH COURT
DATE
OF JUDGMENT : 05/05/2011
PLAINTIFF'S
ATT : NEWTONS INC
PLAINTIFF'S
ADV : ADV RETIEF.
DEFENDANT'S
ATT : DR SH GREGAN ATT
DEFENDANT'S
ADV : ADV J ROUX
1
2002 (4) SA I (SCA).
2
1976
(2) SA 226
TPD at 229B-E;
3
Supra
at
228B-C.
4
Vide
Brisly v Drotsky (supra) 26 paragraph [64].
5
Vide
the authorities cited in Nair v Chandler 2007 (I) SA 44 at 46
paragraph [7].