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[2011] ZAGPPHC 132
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Standard Bank of South Africa Ltd v Kroonhoek Boerdery CC and Others (23054/2011) [2011] ZAGPPHC 132 (1 August 2011)
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NOT
REPORTABLE
IN
THE
NORTH GAUTENG HIGH COURT,
PRETORIA
REPUBLIC OF SOUTH AFRICA
CASE
NO:
23054/2011
DATE:01/08/2011
In
the matter between:
STANDARD
BANK OF SOUTH AFRICA
LIMITED
......................................................
Applicant
and
KROONHOEK
BOERDERY CC
.......................................................................
First
Respondent
ANDRE
NORTJE
…......................................................................................
Second
Respondent
ANDRIES
JOHANNES BURGER
..................................................................
Third
Respondent
JUDGMENT
Tuchten
J
:
1.
The applicant applies for summary judgment against the respondents
for R1 075 700. interest and certain ancillary relief. Its
claims are
based on a loan agreement with the first respondent ("Kroonhoek"),
which the applicant says was varied in
writing on two subsequent
occasions, and on suretyships executed by the second and third
respondents, Mr Nortje and Mr Burger respectively.
The loan was
secured by a mortgage bond.
2.The application for
summary judgment was supported by an affidavit sworn by Ms
Harripersad, in which she said the following:
1
1. I am employed at The
Standard Bank of South Africa Limited as Manager, Business
recoveries, Personal and Business Banking Credit.
Johannesburg, and
the facts herein stated are within my personal knowledge and I am
duly authorised to make this Affidavit.
2.
I confirm that all files, documents and records pertaining to this
matter are in my possession and under my control.
3.
I can swear positively to the facts herein and state that the First,
Second and Third Respondents/Defendants are indebted to
the
Applicant/Plaintiff on the grounds stated in the Summons and I
confirm the content and correctness of the averments contained
in the
Summons and hereby verify the facts, cause of action and the amount
claimed.
4.
In my opinion the First, Second and Third Respondents/Defendants do
not have a bona fide defence to the action and a Notice of
Intention
to Defend has been delivered solely for the purpose of delay.
3.
The applicant's claim is set out in a statement of claim attached to
the summons. It recites firstly the parties and their descriptions
(paragraphs 1 to 4), and the loan agreement, Its terms and the two
variations alleged by the plaintiff and their alleged terms
(paragraphs 5 to 8). Then there is an allegation to the effect that
the applicant has complied with all its contractual obligations
towards the respondents, that the first respondent has failed to make
payment of interest and capital and that the full amount
owed has
become due for payment (paragraph 9) as a result of which the
applicant converted the loan into one payable on written
demand,
which it says it has given (paragraph 10). But despite proper demand,
says the applicant, the first respondent has failed
to pay its
indebtedness, which a manager of the applicant has certified in
writing is due, owing and payable (paragraphs 11 and
12). The
statement of claim then continues to allege the agreement to pass a
mortgage bond, the properties to be bonded, the registration
of the
bond, a description of the properties so hypothecated and the terms
of the bond (paragraphs 13 to 17). The summons proceeds
to repeats
the allegations of indebtedness and certification thereof by a
manager of the applicant (paragraphs 18 to 19). Then
the statement of
claim alleges an intention on the part of the Mr Burger and Mr Nortje
to stand surety for the obligations of Kroonhoek
toward the
applicant, the fact that they executed deeds of suretyship and the
terms of the suretyships (paragraphs 20 to 22).
Then
the applicant yet again alleges that the respondents are indebted to
it and that the indebtedness has been certified as described
(paragraphs 23 to 25). The factual allegations in the statement of
claim conclude with the allegation that neither the loan agreement
nor the suretyships are hit by the National Credit Act, 34 of 2005
(paragraphs 26 to 27). Copies of all the documents referred
to in the
statement of claim were attached to it.
4.
I have set all this out because counsel for the respondents has
submitted, with reference to recent authority in this Division,
that
the affidavit of Ms Harripersad does not pass the muster of the
provisions of rule 32(2). which to the extent relevant to
counsel's
argument reads as follows:
The
plaintiff shall within 15 days after the date of delivery of notice
of intention to defend, deliver notice of application for
summary
judgment, together with an affidavit made by himself or by any other
person who can swear positively to the facts verifying
the cause of
action and the amount, if any, claimed and stating that in his
opinion there is no bona fide defence to the action
and that notice
of intention to defend has been delivered solely for the purpose of
delay.
This
defence was not raised in the respondents' affidavit resisting
summary judgment but was advanced by counsel from the bar without
objection from his opponent.
5.
Counsel's first submission in this regard is that on an analysis of
the affidavit, Ms Harripersad did not in fact purport to
swear
positively to the facts verifying the cause of action and verify the
amount claimed. I disagree. She did.
6.The
second submission has more to it and is that although Ms Harripersad
purported to swear positively to the facts verifying
the cause of
action, she could not competently do so because she lacked the
necessary personal knowledge required by the rule.
Counsel referred
to Firstrand Bank Limited v Beyer
2011 1 SA 196
GNP. Counsel built
his argument around paragraphs 9, 19 and 20 of the judgment of
Ebersohn AJ, which I quote below:
[9] An analysis and
consideration of rule 32(2) clearly show that the court must, from
the facts set out in the affidavit itself,
before it can grant
summary judgment, be able to make a factual finding that the person
who deposed to the affidavit was able to
swear positively to the
facts alleged in the summons and annexures thereto and be able to
verify the cause of action and the amount
claimed, if any, and be
able to form the opinion that there was no bona fide defence
available to the defendant, and that the notice
of intention to
defend was given solely for the purpose of delay. [19] Companies,
firms and other legal personae, like the plaintiff,
can only speak
and act through a representative, and therefore the deponent on
behalf of such a company or legal persona has to
state unequivocally
that the facts were within his personal knowledge and furnish
particulars as to how the knowledge was acquired
by him so as to
enable the court to assess the evidence put before it, and to be able
to make a factual finding regarding the acceptability
of the
supporting affidavit for summary judgment purposes. [20] An employee
of a bank like Von Mohlman will clearly not acquire
personal
knowledge of every one of millions of accounts with her employer
bank, and the supporting documents thereto, and would
clearly not be
able to testify with regard thereto in an open court. To argue that
her evidence becomes relevant and acceptable
just because it is put
before the court by way of an affidavit would be a fallacy and
unacceptable. It is thus incumbent upon the
court to be strict with
regard to summary judgments and to ensure that sufficient positive
material, and not hearsay matter, appears
ex facie the affidavit
filed in support of an application for summary judgment, to warrant a
factual finding by the court to the
effect that the deponent happens
to be a competent deponent.
7.
And then counsel referred to an unreported judgment of Southwood J in
Standard bank of South Africa v Han-Rit Boerdery CC and
Others (GNP
case no. 32371/2010; judgment delivered on 22 July 2011). The learned
judge emphasised the extraordinary nature of
the summary judgment
procedure and the fact that the deponent to the bank's affidavit in
support of the application for summary
judgment in that case
... does not allege that
she had any discussions or dealings with the defendants in connection
with their accounts and the amounts
claimed.
8.
The leading case on the point is Maharaj v Barclays National Bank
Limited
1976 1 SA 418
A. At 423A-424D. Corbett CJ said the
following:
2
Concentrating more
particularly on requirement (a) above,
3
-I
would point out that it contemplates the affidavit being made by the
plaintiff himself or some other person 'who can swear positively
to
the facts'. In the latter event, such other person's ability to swear
positively to the facts is essential to the effectiveness
of the
affidavit as a basis for summary judgment; and the Court entertaining
the application therefor must be satisfied, prima
facie, that the
deponent is such a person. Generally speaking, before a person can
swear positively to facts in legal proceedings
they must be within
his personal knowledge. For this reason the practice has been
adopted, both in regard to the present Rule 32
and in regard to some
of its provincial predecessors (and the similar rule in the
magistrates' courts), of requiring that a deponent
to an affidavit in
support of summary judgment, other than the plaintiff himself, should
state, at least, that the facts are within
his personal knowledge (or
make some averment to that effect), unless such direct knowledge
appears from other facts stated ....
The mere assertion by a deponent
that he 'can swear positively to the facts' (an assertion which
merely reproduces the wording
of the Rule) is not regarded as being
sufficient, unless there are good grounds for believing that the
deponent fully appreciated
the meaning of these words ... . In my
view, this is a salutary practice. While undue formalism in
procedural matters is always
to be eschewed, it is important in
summary judgment applications under Rule 32 that, in substance, the
plaintiff should do what
is required of him by the Rule. The
extraordinary and drastic nature of the remedy of summary judgment in
its present form has
often been judicially emphasised ... . The grant
of the remedy is based upon the supposition that the plaintiffs claim
is unimpeachable
and that the defendant's defence is bogus or bad in
law. One of the aids to ensuring that this is the position is the
affidavit
filed in support of the application; and to achieve this
end it is important that the affidavit should be deposed to either by
the plaintiff himself or by someone who has personal knowledge of the
facts. Where the affidavit fails to measure up to these requirements,
the defect may, nevertheless, be cured by reference to other
documents relating to the proceedings which are properly before the
Court.... The principle is that, in deciding whether or not to grant
summary judgment, the Court looks at the matter 'at the end
of the
day' on all the documents that are properly before it
... . It remains to apply
these principles to the facts of the present case. Ex facie the
summons plaintiffs cause of action is
founded upon moneys disbursed
on defendant's behalf in terms of an oral agreement of overdraft The
relevant facts would, therefore,
be the conclusion of the contract,
and the terms thereof, the deposits in, and withdrawals from,
defendant's current account at
the Stanger branch of the plaintiff
bank and the interest debits resulting in the debit balance as at the
date alleged in the summons,
viz. 24 October 1974, and the making of
a demand for payment. In regard to certain of these facts, it would
be difficult, if not
impossible, for any one person to have
first-hand knowledge of every fact that goes to make up the
plaintiffs cause of action.
In this connection I am in full agreement
with the following remarks of MILLER, J., in Barclays National Bank
Ltd v Love
[1975 2 SA 514
D] at pp516-7, made with reference to an
affidavit made by the manager of a branch of the plaintiff bank ..:
'We
are concerned here with an affidavit made by the manager of the very
branch of the bank at which overdraft facilities were enjoyed
by the
defendant. The nature of the deponent's office in itself suggests
very strongly that he would in the ordinary course of
his duties
acquire personal knowledge of the defendant's financial standing with
the bank. This is not to suggest that he would
have personal
knowledge of every withdrawal of money made by the defendant or that
he personally would have made every entry in
the bank's ledgers or
statements of account; indeed, if that were the degree of personal
knowledge required it is difficult to
conceive of circumstances in
which a bank could ever obtain summary judgment. It goes without
saying that a manager of a bank who
claims to have personal knowledge
of the extent to which a client has overdrawn his account must needs
rely upon the bank records
which show the amounts paid into his
account and the amounts withdrawn by the client.'
At para 9 of the
judgment in Hen-Rit, Southwood J comes to the conclusion, with
reference to Beyer (paras 9, 10, 19, 20 and 21)
and Shackleton
Credit Management (Pty) Ltd v Microzone Trading 88 CC and Another
2110
5 SA 112
KZP (paras 7 and 13) that a deponent who acquires his
knowledge solely from documents to which he has access ... cannot
swear
positively to the facts.
Southwood
J found support for his conclusion in Beyer, para 20, where it was
found that a bank employee in the position of the deponent
in that
case ...will clearly not acquire personal knowledge of every one of
millions of accounts with her employer bank, and the
supporting
documents thereto, and would clearly not be able to testify with
regard thereto in an open court.
10.
In my respectful view, this proposition may be too widely stated. The
question, I suggest, is not the general one whether the
deponent can
competently testify to all the documents with her employer bank but
whether she can competently testify to those relevant
to the case in
question. In the present case, Ms Harripersad is the official within
the applicant at the head of the department
responsible for the
recovery of amounts which the applicant regards as being in arrears.
She had the means to acquire personal
knowledge of the contents of
the documents attached to the statement of claim and she says, in
effect, that she did so.
Furthermore, the passage
from Maharaj which I have quoted makes it quite plain (at 423H) that
the principle is that in deciding
whether or not to grant summary
judgment, the court looks at the matter "at the end of the
day", on all the documents
that are properly before it.
12.
The enquiry is thus ultimately fact driven. It cannot be disputed
that, as was pointed out in Beyer, para 17. certain safeguards
are
built into rule 32(2) for the protection of defendants. But to my
mind, no safeguard is required in relation to an allegation
made by
an applicant
when the very allegation is admitted by a respondent
in summary judgment proceedings. And as has been made plain by the
SCA in ,
the "drastic nature" of summary judgment
proceedings should not be over-emphasised: as was held in Joob Joob
Investments
(Pty) Ltd v Stocks Mavundla Zek Joint Venture
2009 5 SA 1
SCA para 33:
Having regard to its
purpose and its proper application, summary judgment proceedings only
hold terrors and are 'drastic' for a
defendant who has no defence.
Perhaps the time has come to discard these labels and to concentrate
rather on the proper application
of the rule, as set out with
customary clarity and elegance by Corbett JA in the Maharaj case
at425G – 426E.
13.It
is true that in the present case Ms Harripersad probably was not
present when the transactions giving rise to the applicant's
cause of
action were concluded and probably did not have any discussions with
the representatives of the first respondent about
the current state
of the first respondent's account. (Compare Maharaj at 424F-G) But
these should not be elevated to essential
requirements, the absence
of which would be fatal to the applicant's case
14.
It is further not necessary for me to express any final view on the
question whether, as was found in Hen-Rit, with reference
to
Shackleton, para 12, possession of the relevant documents alone is
insufficient to establish the required personal knowledge
for the
purposes of summary judgment. As was found in Maharajas well as in
Shackleton, para 15, each case must depend on its own
facts.
15.
I have set out the allegations made by the plaintiff at great, even
tedious, length because I want to make the point that there
is no
factual allegation in the plaintiff's statement of claim in the
present case in respect of which the deponent Ms Harripersad
would
not be able to testify in open court. (Compare Beyer para 20). She
would have been able competently in her official capacity,
by virtue
of her custody thereof, to produce in evidence all the documents
supporting the allegations in the statement of claim
and testify as
to their contents. Counsel for the respondents was unable to point to
a single allegation in the statement of claim
to which Ms Harripersad
could not have testified by reference to the documents under her
control,
16.
To my mind there is a consideration of importance in addition to the
evidence of the documents themselves: the respondents
admit the
allegations made by the plaintiff in its statement of claim. The
respondents' case, made in the affidavit put up to resist
the
application for summary judgment, is that there was a third variation
which, although agreed to between Mr Malatji, the manager
of the
applicant's Centurion branch and Mr Nortje, was not reduced to
writing and was subsequently repudiated by Mr Malatji. They
do not
dispute that the applicant is entitled to succeed against Kroonhoek
if the case is to be decided on the allegations made
by the
applicant, ie that (i) there was an agreement of loan, (ii) which was
varied twice, not three times, (iii) that the properties
alleged were
hypothecated as security for the loan, (iv) that Kroonhoek is in
arrears in regard to the loan agreement as varied
by the first and
second variations and (v) that the applicant has demanded payment of
the full balance of the loan, thus rendering
the amount claimed due.
In these circumstances, in my judgment, it would in the present case
be entirely artificial and in conflict
with the principle in Maharaj
to which I have referred to non-suit the applicant on any supposed
defect in its affidavit in support
of the summary judgment
application.
17.
The defence of an oral third variation may be dealt with shortly. It
cannot succeed. This is because clause 2.7 of the general
terms and
conditions applicable to loan terms, which admittedly governed the
agreement of loan in this case provides:
..no
variation of any of these terms and conditions and any other terms
and conditions relating to the loan, will be of any force
or effect
unless it is recorded in writing and signed by the borrower, any
surety for the loan and the bank.
18.
I mention in passing that to my mind the conclusion to which I have
come eliminates the consequence, which I think would be
absurd and
inimical to the interests of justice, that "unmeritorious
defendants" (Han-Rit para 7) found to be so on the
merits after
a full consideration of the defence raised by those defendants in a
procedural framework most advantageous to them,
would be entitled to
a place on the trial roll in due course to the potential prejudice of
other litigants with genuine issues
to be tried who are waiting in
the queue to be heard.
19.
In regard to the allegations that Mr Nortje and Mr Burger executed
deeds of suretyship in favour of the applicant, the opposing
affidavit says only this:
At the time when the loan
agreement was concluded, was the Deeds of Suretyship not made known,
nor explained, to myself and the
3rd Defendant.
Mr Burger and Mr Nortje
executed a single deed of suretyship, headed Suretyship, which
contained a multitude of references to the
suretyship and the
sureties. It is a lucid 6 page document printed in a relatively large
font and with relatively wide line spacing.
At the foot of the
document, at the places provided for signature by Mr Burger and
Mr Nortje respectively,
there is reference in bold type to Surety No 1 and Surety No 2. They
are both businessmen. It is impossible
to conceive of any bona fide
defence based on this rather cryptic allegation and counsel did not
attempt to persuade me otherwise.
20.
I therefore conclude that the respondents have failed to demonstrate
a bona fide defence or any other reason for non-suiting
the
applicant. Counsel for the applicant handed up a draft order which I
intend to embody in this judgment.
21.
I accordingly make an order for summary judgment for the applicant
against the first, second and third respondents in terms
of the draft
which I have marked "X", initialled and dated for purposes
of identification and attached to this judgment.
NB Tuchfen
Judge of the High Court
28 July 2011
StdBankKroonhMk23054
11
APPEARANCE
ON BEHALF OF PLAINTIFF:ADV RJ GROENEWALD
APPEARANCE
ON BEHALF OF DEFENDANT:ADV CJS KOK
NORTH
GAUTENG HIGH COURT, PRETORIA
(REPUBLIC
OF SOUTH AFRICA)
On
this the 26
th
day of July 2011
Before
the Honourable Tuchten J
CASE
NO.
23054/2011
In
the matter between :
THE
STANDARD BANK OF SOUTH AFRICA LIMITED
......................
APPLICANT/PLAINTIFF
and
KROONHOEK
BOERDERY CC
......................................
FIRST RESPONDENT/DEFENDANT
(REG
NO. CK2005/013461/23)
ANDRE
NORTJE
.........................................................
SECOND
RESPONDENT/DEFENDANT
(ID
NO. )
ANDRIES
JOHANNES BURGER
....................................
THIRD
RESPONDENT/DEFENDANT
(ID
NO.)
DRAFT
ORDER
After
perusal of the papers filed of record and hearing submissions by
counsel on behalf of the parties, summary judgment is granted
in
favour of the Plaintiff against the First, Second and Third
Defendants, jointly and severally, the one paying the other to be
absolved as follows:
IT
IS ORDERED THAT:
1.
Payment of the sum of R1,075,700.00;
2.Interest
thereon at the rate of 12 percent per annum, calculated daily and
compounded monthly in arrears, from 25 November 2010
to date of final
payment, both dates inclusive;
3.
Cost of suit as between attorney and own client;
AND AGAINST
the First Defendant for:
4.
An Order declaring the properties described as (and hereafter
referred
to as "the Properties"):
(1) THE FARM KROONHOEK
NO. 1591, DISTRICT BETHLEHEM,
FREE STATE PROVINCE,
MEASURING
420,4145 (FOUR HUNDRED AND TWENTY COMMA FOUR ONE FOUR FIVE) HECTARES;
HELD
BY DEED OF TRANSFER T..........;
(2) REMAINING EXTENT OF
THE FARM SCHEEPERSDRAAI NO.
1194,
DISTRICT
BETHLEHEM, FREE STATE PROVINCE, MEASURING 308,2873 (THREE HUNDRED AND
EIGHT COMMA TWO EIGHT SEVEN THREE) HECTARES;
HELD
BY DEED OF TRANSFER T......;
(3) PORTION 1 OF THE FARM
SCHEEPERSDRAAI NO. 1194,
DISTRICT BETHLEHEM, FREE STATE
PROVINCE,
MEASURING 42,8266 (FORTY TWO COMMA EIGHT TWO SIX
SIX)
HECTARES;
HELD BY DEED OF TRANSFER
T..........;
(4) PORTION 10F THE FARM
RIETFONTEIN NO. 8,
DISTRICT BETHLEHEM, FREE STATE
PROVINCE,
MEASURING 93,7394 (NINETY THREE COMMA SEVEN
THREE
NINE FOUR) HECTARES:
HELD BY DEED OF TRANSFER
T..........;
(5) PORTION 2 OF THE FARM
RIETFONTEIN NO. 8,
DISTRICT BETHLEHEM, FREE STATE
PROVINCE,
MEASURING 93,7366 (NINETY THREE COMMA SEVEN
THREE SIX
SIX) HECTARES;
HELD BY DEED OF TRANSFER
T.......;
(6) REMAINING EXTENT OF
THE FARM RIETFONTEIN NO. 8,
DISTRICT BETHLEHEM, FREE STATE
PROVINCE.
MEASURING 232,9377 (TWO HUNDRED AND THIRTY TWO
COMMA
NINE THREE SEVEN SEVEN) HECTARES;
HELD BY DEED OF TRANSFER
T.........:
executable.
5. Authorising Warrants
of Execution, relating to the Properties, in terms of Rule
46(1)(a)(ii) of the Uniform Rules of Court.
BY
ORDER,
REGISTRAR
OF THE COURT
1
Emphasis
and capital letters are those of the deponent.
2
I
omit
the references to authority.
3
That
the affidavit should be made by the plaintiff himself or by any
other person who can swear positively to the facts.