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[2012] ZAECPEHC 91
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Standard Bank of South Africa Ltd v Schoonbee and Others (170/2012) [2012] ZAECPEHC 91 (6 December 2012)
IN THE HIGH COURT OF
SOUTH AFRICA
(EASTERN CAPE, PORT
ELIZABETH)
CASE NO: 170/2012
Date
Heard: 19 June 2012
Date
Delivered: 6 December 2012
NOT/REPORTABLE
In the matter between:
STANDARD BANK OF SOUTH
AFRICA LTD
.....................................................
Plaintiff
and
WILLEM CHRISTIAAN
LODEWYK SCHOONBEE
....................................
1
st
Defendant
THOMAS KRUGER ALFONSO
SCHOONBEE
.........................................
2
nd
Defendant
WILLEM CHRISTIAAN
LODEWYK SCHOONBEE
...................................
3
rd
Defendant
SOUTVLEI BESPROEINGS
PROJEK CC
.................................................
4
th
Defendant
___________________________________________________________________
JUDGMENT
___________________________________________________________________
GOOSEN, J:
The plaintiff instituted
action against the defendants in respect of various claims based on
inter alia
a loan agreement concluded with the first
respondent as well as suretyship agreements concluded with first to
fourth defendants
relating to monies loaned and advanced to the WCL
Schoonbee Trust of which the first to third defendants are (were)
trustees.
The WCL Schoonbee Trust was sequestrated finally during
2009.
After summons was issued
and the
dies
expired plaintiff applied for judgment by
default. That application was withdrawn when the defendants filed
notices of intention
to defend the action. Thereafter the plaintiff
applied for summary judgment. That application is opposed and was
postponed on
a few occasions before it came before me.
The claims against the
defendants set out in the particulars of claim are the following:
CLAIM 1
This is a suretyship
claim against the first and second defendants in which it is alleged
that the said defendants concluded unlimited
suretyship agreements in
favour of the plaintiff as security for an agricultural production
loan granted by the plaintiff in favour
of the WCL Schoonbee Trust in
the sum of R2 million. It is alleged that by reason of the Trust’s
default that the defendants
are indebted to the plaintiff in the sum
of R2,426,514.92, an amount supported by a certificate of balance
dated 25 October 2011.
The plaintiff, relying upon separate deeds of
suretyship concluded by the third and fourth defendants respectively
in respect of
the Trust’s indebtedness to it, claims the same
amount, on a joint and several basis, from the third and fourth
defendants
respectively.
CLAIM 2
This claim is formulated
in similar terms to claim 1 and is also based on deeds of suretyship
concluded by each of the first to
fourth defendants in favour of the
plaintiff in relation to a separate agricultural production loan
granted by the plaintiff to
the WCL Schoonbee Trust. In this instance
the claim is in the amount of R3,876,112.61, as evidenced by a
certificate of balance
dated 25 October 2011.
CLAIM 3
This claim is founded on
a written loan agreement concluded between the plaintiff and the
first defendant in an amount of R563,132.00
which was secured by a
mortgage bond registered against Erf 3060, Parsonsvlei, Port
Elizabeth. By reason of the first defendant’s
alleged default
in the repayment of the loan the plaintiff seeks payment of the sum
of R643,937.03 being the balance due as at
24 October 2011 as well as
an order declaring the aforementioned immovable property executable.
In the affidavit
opposing summary judgment the first defendant, on behalf of the
defendants, does not deny the allegations upon
which the plaintiff’s
claims are founded. He points out that the WCL Schoonbee Trust was
finally sequestrated on 26 November
2009. With reference to the
liquidation and distribution account lodged by the Trustees of the
insolvent estate during December
2011, a copy of which is annexed to
the papers, and correspondence from the Trustees it is alleged that
the plaintiff received
payment out of the insolvent estate of an
amount of R4,902,042.73. It appears that this payment was effected
in February 2012
after the issue of summons in this matter. It is
further alleged that the fourth respondent disposed of an immovable
property
owned by it, the farm Brakfontein in Somerset East, and
that from the proceeds of that sale an amount of R3,734,500.00 was
paid
to the plaintiff by way of reduction of the fourth respondent’s
indebtedness to the plaintiff. The allegation is made that
although
the property was bonded in favour of Standard Bank there was no
mortgage bond outstanding in respect of the property.
It is
appropriate to point out in this regard that the documents annexed
to defendants’ papers only reflect payment to
plaintiff of an
amount of R3,518,723.31 plus an interest payment of R2,882.34.
Based on these
allegations however it is accordingly alleged by the defendants that
the plaintiff has been paid in full and that
the defendants are not
indebted to the plaintiff as is alleged. The further allegation is
made that the defendants have from
time to time sought to get the
plaintiff to account to it in respect of the amounts paid to it out
of the insolvent estate and
otherwise so as to establish whether or
not the defendants are indeed indebted to the plaintiff as alleged.
As indicated the
application was postponed from time to time. One such postponement
was to enable the plaintiff to consider the
allegations advanced by
the defendants in their opposing affidavit and to obtain further
certificates of balance from the relevant
official of the plaintiff
in support of its claims. These certificates of balance are filed as
annexures to heads of argument
filed on behalf of the plaintiff. The
first certificate of balance dated 17 May 2012 reflects that in
respect of bank account
82619468, which is the account number
allocated to the agricultural production term loan granted to the
WCL Schoonbee Trust (the
subject of claim 1), the Trust was indebted
to the plaintiff in the sum of R3,809.04. The other certificate
relates to the first
defendant’s indebtedness in respect of
claim 3 and indicates a balance outstanding at 17 May 2012 of
R669,194.73 together
with interest on that sum. In
Rossouw &
Another v First Rand Bank Ltd
2010 (6) SA 439
(SCA) it was held
that the production of a more recent certificate of balance at the
hearing of a summary judgment application
is not barred by Rule 32
(4). The court said (at paragraph 48):
“
The
certificate did not, as the court
a
quo
considered, amount to new evidence which would be inadmissible under
Rule 32 (4). To the extent that the certificate reflects the
balance
due as at the date of hearing, it is merely an arithmetical
calculation based on facts already before the court that the
court
would otherwise have to perform itself. Such calculations are better
performed by a qualified person in the employ of a financial
institution. To the extent that such a certificate may reflect
additional payments by the defendant after the issue of summons,
or
payments not taking into account when summons was issued, this
constitutes an admission against interest by the bank, and the
bank
is entitled to abandon part of the relief it seeks. Certificates of
balance handed in at the hearing (whether
a
quo
or on appeal) perform a useful function and are not hit by the
provisions of Rule 32 (4).”
As indicated the
payments effected to the plaintiff were made after summons was
issued. In the circumstances the plaintiff was
entitled to present a
certificate reflecting a balance due based upon such payments as
were received after the issue of summons.
In argument before me
the plaintiff accordingly amended the relief it sought. Based on a
calculation taking into account the amounts
payable to plaintiff as
indicated in the liquidation and distribution account and the
amounts that the defendants allege have
been paid to the plaintiff,
the plaintiff, at the hearing of the matter, sought, in respect of
claim 1, payment of the amount
of R3,809.04 as being the balance
still due in respect of that claim as well as the payment against
the first defendant of the
claim of claim 3. In respect of the
second claim the plaintiff effectively abandoned such claim.
The total claims
advanced by the plaintiff in its particulars of claim amount to some
R6,946,564.56. The total claim is therefore,
leaving aside the
reasonable escalation thereof by reason of accumulated interest,
slightly less than R7 million. The defendants
allege that the
plaintiff has received payment of an amount of approximately R8,4
million by way of payments made by the Trustees
in the insolvent
Trust as well as from the proceeds of the sale of the farm
Brakfontein. According to the defendants payment
of an amount of
R3,518,723.81 was paid into a bond account held by the plaintiff in
July 2010. It is not stated what the balance
was on the said bond
account at the time. Accordingly it cannot be determined what
amounts were allocated to the outstanding
indebtedness of the
defendants based upon the loans advanced to the WCL Schoonbee Trust,
if any. The evidence presented by the
defendants regarding payment
of the amounts due in respect of the trusts indebtedness to the
plaintiff in this regard
prima facie
supports the contention
that the full debt may have been extinguished by such payments.
Whether such payments have indeed been
made in reduction of the
indebtedness of the defendants upon which the plaintiff relies need
not, of course, be determined at
this stage. Nor is it necessary to
make any findings as to the veracity of the allegations in this
regard. All that need be decided
is whether the allegations made by
the defendants if established at trial would constitute a defence
against the plaintiff’s
claims. If so, then the defendants
have established a
bona fide
defence and summary judgment
ought to be refused. The fact that the plaintiff has reduced its
claim in respect of claim 1 and
has abandoned claim 2, apparently on
the strength of the allegation raised by the defendants in opposing
the application, strengthens
this view.
Claim 3 is however upon
a different footing. The defence raised by the first defendant in
respect of claim 3 is difficult to fathom.
It is alleged that
“
... had the applicant disclosed that a substantial
amount of money had been repaid to them as set out above, I would
have obtained
consent from my fellow respondents, having regard that
we are family members, to have the amount claimed by the applicant
in
respect of claim 3, be settled in full from the proceeds of the
excess amount already paid to the applicant.”
This
is in fact not a defence at all. At best for the first defendant it
is alleged that there is an amount paid to the plaintiff
which is in
excess of the amount due to it in relation to the indebtedness of
the WCL Schoonbee Trust and that he would have
sought
“
consent”
from family members to have this utilised to settle his
indebtedness to the plaintiff. Even assuming that there is such an
excess
amount the first defendant has,
as a
matter of fact,
not obtained the consent of the
remaining defendants and there is no indication that he has sought
or that he will obtain such
consent. In the circumstances no
bona
fide
defence to claim 3 is disclosed by the
first defendant and the plaintiff is entitled to judgment against
the first defendant in
respect of that claim.
In the result I make the
following order:
In respect of claims 1
& 2 as against first to fourth defendants –
The application for
summary judgment is refused;
The first to fourth
defendants are granted leave to defend said claims;
The costs of the
application for summary judgment shall be costs in the cause.
In respect of claim 3
as against the first defendant –
Judgment in favour of
the plaintiff is granted in the sum of R643,937.03 together with
interest thereon at the variable rate of
7.25% per annum charged by
the plaintiff from time to time from 25 October 2011 to date of
payment thereof;
The mortgaged property
being Erf 3060, Parsonsvlei in Nelson Mandela Metropolitan
Municipality, Division of Port Elizabeth, is
declared executable;
Costs of suit on the
scale as between attorney and client.
__________________________
GG GOOSEN
JUDGE OF THE HIGH
COURT
APPEARANCES
:
FOR THE PLAINTIFF
:
Ms T Zietsman, instructed by
Pagdens Attorneys
FOR THE DEFENDANTS
:
Mr V Naidu, instructed by
The Justice Centre, Port
Elizabeth