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[2011] ZAGPPHC 120
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Standard Bank of South Africa v Han-Rit Boerdery CC and Others (32371/2010) [2011] ZAGPPHC 120 (22 July 2011)
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Certain
personal/private details of parties or witnesses have been
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REPORTABLE
I
N
THE NORTH GAUTENG HIGH COURT, PRETORIA
(REPUBLIC OF SOUTH AFRICA)
Date: 2011-07-22
Case Number:
32371/2010
In the matter between:
STANDARD BANK OF
SOUTH AFRICA
...........................................
Applicant
and
HAN-RIT BOERDERY
CC
.........................................................
First
Defendant
REGISTRATION NUMBER: 1999/017328/23
BERNARDUS
JOHANNES BEZUIDENHOUT
.....................
Second
Defendant
SUSANNA MARIA
BEZUIDENHOUT
......................................
Third
Defendant
JUDGMENT
SOUTHWOOD J
[1]
The
applicant seeks summary judgment against the defendants, jointly and
severally, the one paying the others to be absolved, for
payment of
R44 078,57, R111 328,78, interest on both amounts and costs. The
defendants have filed answering affidavits in which
they raise points
in
limine
and
purport to set out a defence to the claims. The defendants’
counsel has conceded frankly that the defence set out in
the
answering affidavits is set out in a manner, which, in the
circumstances is bald, vague and scanty and is not a
bona
fide
defence
as required by Rule 32(3)(d) –
Breitenbach
v Fiat SA (Edms) Bpk
1976
(2) SA 226
(T)
at
228D-E. Nevertheless the defendants’ counsel argues that the
application should be refused because the applicant’s
application for summary judgment is defective. The contention is
that the person who deposed to the affidavit in support of the
summary judgment application could not swear positively to the facts
verifying the cause of action and the amount claimed.
[2] The parties are
agreed that if the point
in
limine
is
upheld summary judgment should be refused and that if the point is
dismissed summary judgment should be granted.
[3
] The
deponent to the applicant’s affidavit is Sarasvathie Govender,
the Manager, Legal, Customer Debt Management, Personal
and Business
Banking Credit, a division of the applicant. Ms. Govender states –
‘It is my function within the
Plaintiff to deal with arrear accounts of clients of the Plaintiff.
I have full access to
all the Plaintiff’s ledgers, books of
account and files pertaining to these and all other accounts. I am
able to establish
the exact outstanding amount and interest in
respect of any account referred to me. I can therefore in the
circumstances state
that the facts herein contained fall within my
personal knowledge, I am duly authorised to make this affidavit and
can swear positively
to facts contained herein. Unless otherwise
stated, all facts herein stated are within my own personal
knowledge.’
[4
] The
applicant relies on
Maharaj
v Barclays National Bank
1976
(1) SA 418
(A)
at
423A-424H and
Standard
Bank of South Africa Ltd v Secatsa Investments (Pty) Ltd
1999
(4) SA 229
(C)
at
234B-235C for its contention that Ms. Govender can swear positively
to the facts verifying the cause of action and the amount
claimed.
The defendants contend that the facts of those cases are
distinguishable from the facts of the present case and that
it is
clear that Ms. Govender cannot swear positively to the facts. The
defendants rely on
Shackleton
Credit Management (Pty) Ltd v Microzone Trading 88 CC and Another
2010
(5) SA 112
(KZP)
and
Firstrand
Bank Ltd v Beyer
2011
(1) SA 196
(GNP).
[5
] It
is clear from the
Maharaj
and
Secatsa
judgments
that the courts did not deviate from the requirement that the
deponent must be able to swear positively to the facts and
that they
found in the particular circumstances of the cases that the deponents
were such persons. In the
Maharaj
case,
the deponent was an assistant to the Branch Manager at the branch
where the defendant’s account was kept and in the
Secatsa
case
the deponent was a regional manager of the bank’s credit
department who had discussions with the defendant. In both
cases it
was clear that the deponent did not derive his knowledge of the case
solely from the files, books of account and ledgers
in his possession
or to which he had access. It is significant that after considering
all the documents filed the court in the
Maharaj
case
regarded it as ‘a borderline case’. In the present case
it is clear that Ms. Govender’s knowledge is derived
entirely
from the applicant’s ledgers, books of account and files
pertaining to the defendants’ accounts. She does
not allege
that she had any discussions or dealings with the defendants in
connection with their accounts and the amounts claimed.
[6
] In
both the
Shackleton
case
(paras 7 and 13) and the
Beyer
case
(paras 9, 10, 19, 20 and 21) the court found that a deponent who
acquires his knowledge from documents to which he has access
cannot
swear positively to the facts. In both cases the courts reviewed the
relevant case law and the principles laid down over
the years and I
respectfully agree with the reasoning of the courts and the
conclusion reached.
[7] While I share
the concern of the court in the
Shackleton
case
(para 26) that insistence on strict compliance with the requirements
of the Rule by a plaintiff may lead to unmeritorious defendants
raising a multitude of technical objections to applications for
summary judgment I am ever mindful of the extraordinary nature
of the
procedure. The requirements of Rule 32(2) are straightforward and
can easily be complied with. Difficulties arise only
where
plaintiffs attempt to bend the rules and take short cuts. If
granted, summary judgment is final and closes the door on a
defendant. Accordingly, summary judgment should be granted only if
the plaintiff’s affidavit complies with Rule 32(2) and
it
appears that the deponent has personal knowledge of the facts and can
verify the cause of action and the amount, if any, claimed,
and can
express an opinion that the defendant has no
bona
fide
defence
to the action and has delivered a notice of intention to defend
solely for the purpose of delay.
[8
] The
defendants’ point
in
limine
must
therefore be upheld and the application for summary judgment refused
and leave granted to the defendants to defend.
[9
] The
following order is made:
I The application for summary
judgment is refused;
II Leave is granted to the defendants
to defend; and
III Costs of the
application will be costs in the cause.
______________________
B.R. SOUTHWOOD
JUDGE OF THE HIGH COURT
CASE NO:
32371/2010
HEARD
ON: 14 July 2011
FOR
THE APPLICANT: ADV. P. VAN DEN ORDEL
INSTRUCTED
BY: Findlay & Niemeyer Inc.
FOR
THE DEFENDANTS: ADV. C. MYBURGH
INSTRUCTED
BY: Joop Lewies Inc.
DATE
OF JUDGMENT: 22 July 2011