IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE HIGH COURT, CAPE TOWN)
Case No: 1896/2023
In the matter between:
SOUTH AFRICAN SECURIT ISATION PROGRAMME
(RF) LIMITED
First Applicant/
First Plaintiff
SASFIN BANK LIMITED Second Applicant/
Second Plaintiff
SUNLYN (PTY) LTD Third Applicant/
Third Plaintiff
versus
WBT AUTO WHOLESALERS First Respondent/
First Defendant
LUCELLE FLEUR ANGEL Second Respondent/
Second Defendant
WESLEY ERNEST ANGEL Third Respondent/
Third Defendant
Coram: Adhikari AJ
Heard: 30 January 2024
Delivered: 5 February 2024
JUDGMENT DELIVERED ELECTRONICALLY ON 5 FEBRUARY 2024
Delivered: This judgment was handed down electronically by circulation to the
parties' legal representatives by email. The date for the hand- down is deemed
to be on 5 February 2024.
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ADHIKARI, AJ
[1] This is an opposed application for summary judgment.
[2] The plaintiffs seek summary judgment against:
[2.1] The second defendant (Ms Angel) for:1
[2.1.1] Payment of the sum of R25 406.97;
[2.1.2] Interest on the aforesaid amount at the rate of 9% per
annum from 19 August 2021 to date of payment; and
[2.1.3] Costs of suit on an attorney client scale.
[2.2] Ms Angel and the third defendant ('Mr Angel’) for:2
[2.2.1] Payment of the sum of R175 169.82;
[2.2.2] Interest on the aforesaid amount at the rate of 9% per
annum from 19 August 2021 to date of payment; and
[2.2.3] Costs of suit on an attorney client scale.
[3] It appears from the certificate of balance annexed to the particulars of claim
that the sum claimed in respect of Claim A (that is R25 406.97) comprises of an arrear
rental amount of R15 909.24 and future rental in the amount of R9 554.73. Claim A
arises from a photocopier rental agreement (‘the first rental agreement’) concluded on
or about 31 August 2017 between the third plaintiff (‘Sunlyn’) and the first defendant
(‘WBT’). WBT was provisionally wound up on 14 May 2021. A provisional liquidator
1 For ease of reference this claim is referred to in the remainder of the judgment as ‘Claim A’.
2 For ease of reference this claim is referred to in the remainder of the judgment as ‘Claim B’.
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was appointed on 27 May 2021. WBT was finally wound up on 24 June 2021. It does
not appear to be in dispute that Ms Angel’s liability in respect of Claim A arises from a
written guarantee in terms of which Ms Angel bound herself as guarantor and co-
principal debtor for the obligations of WBT under the first rental agreement.
[4] It appears from the certificate of balance annexed to the particulars of claim
that the sum claimed in respect of Claim B (that is R175 169.82) comprises of an
arrear rental amount of R 31 941.26 and future rental in the amount of R143 228.56.
Claim B arises from a photocopier rental agreement (‘the second rental agreement’)
concluded on or about 20 May 2019 between WBT and a close corporation known as
Corprint CC . The plaintiffs contend that t he liability of Ms Angel and Mr Angel
(collectively referred to as ‘the defendants’) in respect of Claim B arises from a written
guarantee in terms of which the defendants bound themselves as guarantors and co-
principal debtors for the obligations of WBT under the second rental agreement. The
defendants, however, deny signing this guarantee.
[5] It appears from the pleadings that:
[5.1] Corprint’s rights under the second rental agreement were ceded to
Sunlyn;
[5.2] Sunlyn’s rights under the first rental agreement and under the second
rental agreement were ceded to the second plaintiff (‘Sasfin’); and
[5.3] Sasfin’s rights under the first rental agreement and under the second
rental agreement were ceded to the first plaintiff (‘SASP’).
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Applicable legal principles
[6] The purpose of the summary judgment procedure is to prevent sham defences
from defeating the rights of parties by delay, and at the same time causing great loss
to plaintiffs who were endeavouring to enforce their rights. 3 A d efendant resisting
summary judgment must satisfy the court that it has a bona fide defence to the
plaintiff’s claim, that is a defence set up bona fide or honestly, which if proved at the
trial, would constitute a defence to the plaintiff’s claim. 4 A defendant is required to
disclose fully the nature and grounds of the defence in the opposing affidavit. In
assessing whether a defendant has a bona fide defence to the claim, the court is called
upon to enquire into (a) whether the defendant has fully disclosed the nature and
grounds of the defence and the material facts upon which it is founded, and
(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 both bona fide and good in law. 5 If
satisfied on these matters the court must refuse summary judgment, either wholly or
in part, as the case may be.
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[7] The effect of the amendment to R ule 32(b) is that the plaintiff is now required
to engage with the content of the plea in order to substantiate its averments that the
defence is not bona fide and has been raised merely for the purposes of delay.
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However, as this court noted in Tumileng Trading, that the exercise is likely to be futile
in all cases other than those in which the pleaded defence is a bald denial because a
3 Joob Joob Investments (Pty) Ltd v Stocks Mavundla Zek Joint Venture 2009 (5) SA 1 (SCA) at
para [31].
4 Bentley Maudesley & Co. Ltd v "Carburol ” (Pty) Ltd and Another 1949 (4) SA 873 (C) at 874.
5 Maharaj v Barclays National Bank Ltd 1976 (1) SA 418 (A) at 426A-C.
6 Id.
7 Tumileng Trading CC v National Security and Fire (Pty) Ltd; E and D Security Systems CC v
National Security and Fire (Pty) Ltd 2020 (6) SA 624 (WCC) at para [22].
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court seized of a summary judgment application is not charged with determining the
substantive merit of a defence, nor with determining its prospects of success.8
The defences
[8] Having regard to the allegations in the particulars of claim, read with the plea,
it is apparent that the defendants admit that WTB breached the terms of the first and
second rental agreements respectively by failing to make regular monthly payments
in terms of those agreements and that consequently Sasfin or SASP are entitled to
claim “immediate payment of all amounts which would have been payable in terms of
the rental agreements … whether such amounts were then due for payment or not”.
[9] It is common cause that Ms Angel signed the guarantee which underlies the
plaintiffs’ cause of action in respect of Claim A. The defendants, however, dispute that
they signed the guarantee which underlies the plaintiffs’ cause of action in respect of
Claim B. No basis is set out in the plea for this denial. Further, the affidavit opposing
summary judgment does not deal with this issue and in fact, the defendants accept in
the affidavit opposing summary judgment that the arrear rental portions of Claim A and
Claim B are not disputed. This is confirmed in the defendants’ heads of argument
where the submission is made that the defendants’ opposition to summary judgment
is limited to the plaintiffs’ entitlement to the future rentals claimed.
[10] It is trite that a court should exercise its discretion against granting summary
judgment where it appears that there is a reasonable possibility that an injustice may
be done if summary judgment is granted. However, where the liability of the defendant
8 Id.
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is undisputed, the discretion should not be exercised against a plaintiff so as to deprive
it of the relief to which it is entitled.9
[11] Consequently, in the face of the defendants’ admitted liability in respect of the
arrear rental portions of Claim A and Claim B respectively, I am satisfied that the
defendants have not disclosed a bona fide defence to those portions of the plaintiffs’
claims, and that summary judgment ought to be granted in respect of the arrear rental
portions of the plaintiffs’ claims.
[12] Insofar as the future rental portions of Claim A and Claim B are concerned, the
defendants contend that:
[12.1] Given the provisions of s 37(c) of the Insolvency Act 24 of 1936
(‘the Insolvency Act’) these amounts cannot be claimed in an action for
specific performance because the rental agreements had been
determined on 28 August 2021 by the provisional liquidator, that is prior
to the action being instituted (action was instituted on 2 February 2022);
and
[12.2] The amounts claimed constitute unreasonable penalties as
contemplated by s 3 of the Conventional Penalties Act 15 of 1962
(‘Conventional Penalties Act’).
[13] In essence, the defendants contend that the plaintiffs are not entitled to claim
specific performance arising from agreements that were terminated prior to action
being instituted and that in any event the plaintiffs repossessed the photocopier
machines when the first and second rental agreements were terminated and are thus
9 Jili v FirstRand Bank Ltd t/a Wesbank 2015 (3) SA 586 (SCA) at para [13] – [14].
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not entitled to the full amounts claimed in the particulars of claim . Further, the
defendants contend that the plaintiffs’ claims for future rentals constitute penalty
stipulations as contemplated by the Conventional Penalties Act . The defendants
further contend that substantially similar contractual provisions were found to
constitute unreasonable penalty provisions in Plumbago Financial Services (Pty) Ltd
t/a Toshiba Rentals v Joseph t/a Project Finance.10 The defendants contend that they
are entitled to a reduction in the conventional penalty (that is the claim for future
rentals), and that the extent of the reduction will depend on when the plaintiffs
repossessed the photocopier machines and what income the plaintiffs generated from
the photocopier machines after they were repossessed.
[14] In the affidavit filed in support of the application for summary judgment, the
plaintiffs accept that their claim is one for specific performance and legal costs. This
accords with the plaintiffs’ pleaded case. The plaintiffs contend that the liquidation of
WTB does not have the effect of discharging the defendants from liability in terms of
the guarantees and further dispute that they repossessed the photocopier machines.
Mr Braun for the plaintiffs sought to persuade me that none of the defences are good
in law, however, the arguments that Mr Braun relied on would require me to determine
the substantive merits of the defences. That is not what this court is called upon to do
in summary judgment proceedings.
[15] Having regard to the defences, I am persuaded that the defences are genuinely
raised and that the defences cannot fairly be said to constitute a sham put up for
purposes of obtaining delay. Further I am persuaded that the defences, if proved at
the trial, would constitute defences to the plaintiffs’ claims insofar as the future rental
10 Plumbago Financial Services (Pty) Ltd t/a Toshiba Rentals v Joseph t/a Project Finance 2008 (3)
SA 47 (C).
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claims are concerned. Consequently, I am satisfied that there is a reasonable
possibility that an injustice may be done if summary judgment is granted in respect of
the plaintiffs’ claims for future rentals.
Costs
[16] The agreements on which the plaintiffs’ claims are based provide for the
defendants to bear the costs of legal proceedings on a scale as between attorney and
client. The defendants have set out no basis in the plea for why they should not be
bound by the terms of the agreements in respect of those portions of the plaintiffs ’
claims in respect of which summary judgment is granted. As to the appropriate tariff
to be applied, the plaintiffs’ claims fall within the monetary jurisdiction of the
Magistrates’ Courts and consequently, I am persuaded that it would be appropriate for
the plaintiffs to be limited to recovering costs on the Magistrates Court tariff.
[17] In terms of the Rule 32(9), the court in summary judgment proceedings may
make such order as to costs as to it may seem just. The usual order is costs in the
cause. Rule 32(9)(a) provides for a deviation from the normal order where the plaintiff,
in the opinion of the court, knew that the defendant relied on a contention which would
entitle such defendant to leave to defend. Although the plaintiffs in this matter could
have anticipated that they would experience some difficulty in obtaining summary
judgment, having regard to the pleaded defences, I am not persuaded that the plaintiffs
knew that the defendants would be entitled to leave to defend. Consequently I am not
satisfied that on the facts of this matter a deviation is justified from the usual order in
respect of the portions of the plaintiff’s claims for which leave to defend is granted.
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In the result I make the following order:
1. Summary judgment is granted in favour of the plaintiffs against:
1.1. the second defendant for:
1.1.1. payment of the sum of R15 909.24;
1.1.2. interest on the aforesaid amount at the rate of 9% per
annum from 19 August 2021 to date of payment; and
1.1.3. costs of suit on an attorney client scale, on the Magistrates
Court tariff.
1.2. the second and third defendants, jointly and severally the one paying the
other to be absolved for:
1.2.1. payment of the sum of R31 941.26;
1.2.2. interest on the aforesaid amount at the rate of 9% per
annum from 19 August 2021 to date of payment; and
1.2.3. costs of suit on an attorney client scale, on the Magistrates
Court tariff.
2. Save as provided for in paragraphs 1.1 and 1.2 above, summary judgment is
refused and the second and third defendants are granted leave to defend.
3. The costs of the summary judgment application shall stand over for
determination at trial.
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_______________
ADHIKARI, AJ
APPEARANCES:
Applicant’s Counsel: Adv B Braun
Instructed by: Smit Jones & Pratt Inc
Respondents’ Counsel: Adv MA McChesney
Instructed by: Potgieter & Associates