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[2021] ZAKZDHC 22
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Nedbank Limited v Dolbey and Another (D3809/2016) [2021] ZAKZDHC 22 (28 April 2021)

IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
LOCAL DIVISION, DURBAN
Case
No: D3809/2016
IN
THE MATTER BETWEEN:
NEDBANK
LIMITED

PLAINTIFF
and
RICHARD DAVID
DOLBEY

FIRST DEFENDANT
LOUISE HELEN
DOLBEY
SECOND
DEFENDANT
ORDER
(a)
The plaintiff’s summons and particulars of claim are amended so as
to reflect the second
defendant as LOUISE HELEN RIDDLE;
(b)
Subject to paragraph 3 hereunder, judgment is entered against the
first and second defendants,
jointly and severally, the one paying
the other to be absolved, for:
(i)
Payment in the amount of R2 454 998.62;
(ii)
Interest thereon at a rate of 10.50% per annum from 09 May 2017 to
date of payment
in full;
(iii)
Costs of suit.
(c)
Save that:
(i)
The judgment against the second defendant is limited to R2 million;
(ii)
The first defendant is not required to pay any costs from 26 August
2020.
JUDGMENT
Delivered
on: 28 April 2021 Hadebe J:
[1]
For ease of reference, the parties will be referred to as they appear
in the summons.
On 11 November 2014 (as per the summons) but (11
October 2014 in terms of the attachment to the Index Trial Bundle),
the Plaintiff
(‘Nedbank’) entered into a written term loan
agreement (‘the agreement’) with an entity known as Typically
Midlands FLM (Pty)
Ltd (‘the company’).
[2]
On 19 September 2014, the first defendant (Mr Dolbey) executed an
unlimited deed of
suretyship in respect of the company. He was at
that stage one of seven shareholders at the company. By resolution
passed at a meeting
of Directors / Officials of the company held on 8
September 2014, he had been authorised to sign the necessary Power of
Attorney
for the registration of the Notarial Bond (‘bond’) on
behalf of the company. This was after a resolution had been taken to
borrow
the sum of R78 million from the plaintiff. This bond was meant
as a continuing covering security to secure the repayment of the
loan.
[3]
On 30 July 2014, the second defendant (Mrs Dolbey) purportedly
executed a deed of suretyship
for a limited amount of R2 million
in respect of the obligations of the company. The word ‘purportedly’
is deliberately
used in this paragraph. The liability of Mrs Dolbey
to Nedbank is what is at issue in these proceedings.
[4]
The R7.8 million borrowed from Nedbank was to be repaid within a
period of sixty months
in equal instalments of R166 300.23 with
the first instalment being payable on 1 November 2014. In the normal
course of business,
the final instalment would be due on 1 October
2019. Interest was to be levied on the loan amount at the variable
prime rate of interest
of the plaintiff plus 1%.
[5]
In a document entitled ‘Extract from the Minutes of a Meeting of
Typically Midlands
FLM (Pty) Ltd’ which it would seem was held on
30 April 2014 (the date on the document is not clear) the first
respondent was authorised
to settle the terms and to sign the
facility letter (containing the offer of the loan facility) to the
company. The document was
said to be a true extract signed by the
secretary and the chairperson of the company.
[6]
It is common cause between the parties that the company was
subsequently placed under
business rescue on 19 November 2015 as per
Notice of Appointment of Business Rescue Practitioner in terms of
s129 (3)(
b
) of the
Companies Act 71 of 2008
. The plaintiff
avers that as a result of this, the company placed itself in a
position wherein it is in breach of clause 12 of the
agreement. The
said clause deals with instances where breach of the agreement will
be deemed to have taken place. It provides as
follows:
‘
12.
BREACH
12.
Should the Client breach any term or condition contained in this
Agreement and/or any term,
condition or covenant recorded in the
Facility letter, or should the Client breach a term or condition of
any other Agreement with
the bank (which breach shall constitute a
breach of this Agreement), or in the event that:
12.1.1.
……
12.1.2.
……
12.1.3.
……
12.1.4.
……
12.1.5.
……
12.1.6.
the Client is voluntarily or compulsorily placed under
judicial
management or is wound up or enters into a compromise, composition or
arrangement with its creditors, or any class thereof;
or
12.1.7.
the ultimate beneficial control of the Client changes
during the
period of the Loan Amount; or
12.1.8.
……
12.1.9.
……
12.1.10.
……
12.1.11.
……
12.1.12.
……
12.1.13.
the bank shall be entitled, without derogating from any other
right
which the bank may have, to claim immediate repayment of the Loan
Amount together with the interest and all amounts owing or
claimable
by the bank in terms of this Agreement, all of which amounts shall
Immediately become due and payable, or to increase with
immediate
effect, the Interest Rate applicable to the Agreement with a maximum
of 5% (five percent) Every event of breach shall trigger
this
increase, in the bank’s discretion, and any failure to exercise the
right to Immediately Increase the Interest Rate shall
not be
construed as a waiver thereof and may be exercised by the bank at any
time after an event or events of breach has/have occurred,
and
irrespective of whether the breach was rectified or not.’
[7]
Flowing from the provisions of clause 12 of the agreement, the
plaintiff claims that
the whole amount outstanding as at the date of
the breach is now due and payable. In terms of the certificate of
balance signed by
two of the bank’s managers, (Labotsibeni
Nokwethemba Seme and Sijabulile Sibongile Ntshangase) the amount
outstanding and due to
the company is the sum of R2 454 998.62
with interest thereon at the rate of 1% above the prime overdraft
rate as applicable
from 9 May 2017.
[8]
Having entered an appearance to defend, the first defendant
subsequently signed the
confession to judgment for the plaintiff’s
claim along the following lines:
‘
2.
I have no defence to the action instituted against me and confess to
final judgment in
favour of the plaintiff in respect thereof.
3.
Now therefore please take notice that I the undersigned Richard David
Dolbey, the
first defendant, do hereby confess to the plaintiff’s
claims and consent to final judgment being granted against me for:
3.1
payment in the sum of R2 454 998.62;
3.2
Interest thereon at the rate of 10.50% per annum from 9 May 2017 to
date of payment in full;
3.3
costs of suit.’
[9]
Having secured this confession to judgment by the first defendant,
the plaintiff now
seeks the following order against the second
defendant:
‘
1.
The plaintiff’s summons and particulars of claim are amended so as
to reflect the second
defendant as Louise Helen Riddle;
2.
Subject to paragraph 3 hereunder judgment is entered against the
first and second
defendants, jointly and severally, the one paying
the other to be resolved, for:
2.1
payment in the amount of R2 454 998.62;
2.2
interest thereon at a rate of 10.50% per annum from 9 May 2017 to day
of payment in full;
2.3
costs of suit.
3.
Save that:
3.1
The judgment against the second defendant is limited to
R2 000 000-00;
3.2
The first defendant is not required to pay any costs from 26 August
2020’
[10]
The claims by the plaintiff are countered by the second defendant on
a number of grounds. These are,
amongst others, that:
(i)
She never appended her signature to the suretyship agreement. In this
regard, the second
defendant raises a number of issues which she
argues will prove that she did not attend the plaintiff’s premises
on 30 July 2014
and thus did not place her signature on the document
purporting to be a deed of suretyship. The second defendant avers
that the curve
and the slant of the letters purporting to be her
signature differs from her own signature.
(ii)
She further argues that she was neither a shareholder nor a director
and she had no
financial interests in the company. She was married
out of community of property to the first defendant and that at the
alleged time
of the signing of the deed of suretyship, they were
living separately.
(iii)
She produced two documents automatically generated by the systems of
her erstwhile employer.
The documents were meant to show that on the
day in question, the 30
th
of July 2014, she was at her place of employment. One document
purportedly shows tasks the second defendant would have completed
on
the day in question, whereas the other document is said to reflect
the leave days taken by the second defendant during the years
2012 to
2014.
(iv)
The second defendant denies ever meeting the first witness for the
plaintiff, Ms Shoba Kirpal (Ms
Kirpal) prior to October 2014.
(v)
Her argument is that she only met Ms Kirpal for the first time after
the opening of the Food
Lovers Market Store in October 2014 and that
the only time she met with Mrs Kirpal in her office was in March 2015
after she became
a member of Whysalls Property CC (Whysalls) and
required asset finance. She challenged the plaintiff to show proof by
way of an attendance
book wherein she would have signed in. According
to her, she only became aware of her purported suretyship somewhere
in 2016, when
she was contacted by Ms Kirpal regarding the Whysalls
motor vehicle finance.
(vi)
In so far as she was concerned, the suretyship document contained
numerous errors and discrepancies
for her to have appended her
signature. These are, according to her, the reference to her in the
marital status declaration as Dolbey,
instead of Riddle, and that the
deed of suretyship referred to incorrect parties. A consideration of
the suretyship document indicates
that it is entitled ‘Incorporating
Cession of claims’ and what purports to be an indication for
‘suretyship’ is written as
‘suretship’). The document further
indicates that the suretyship is entered into in consideration of any
indebtedness incurred
or to be incurred by:
(a)
Typically Midlands FLM (Pty) Ltd
Reg. No
020131
958 807
(b)
Typically Midlands FLM (Pty) Ltd
Reg. No
201 319 318 807
(c)
Typically, Midlands FLM (Pty) Ltd
Reg.
No
201 319 518 80
7
Whilst
at this issue of the reference to the company, it is worth noting
that in the agreement between Nedbank and the company, the
registration number of the company, referred in the agreement as the
“client”, is reflected as being
201 319 518 807
[11]
The defences raised by the second defendant relating to the validity
of the ‘suretyship’ document
(relating to whether she signed this
document), are challenged by the plaintiff as follows:
(a)
It would be unreasonable to expect the court to draw a negative
inference against the plaintiff
for not presenting the security
register for an event that would have occurred more than six years
ago – if, at all, one existed.
(b)
On the issue of security which was purportedly held by the second
defendant at the time she
purportedly signed the suretyship document,
the second defendant contended that the plaintiff’s argument that
Ms Kirpal had conducted
due diligence before meeting with the second
defendant and had established that the second defendant was a member
of Whysalls and
owned property, is demonstrably false. This was so,
the second defendant argued, because it had been established that the
second
defendant had only become a member of this entity in February
2016.
(c)
The plaintiff argues in this regard that it is irrelevant whether the
security was held in
the name of Whysalls or the second defendant.
What matters, according to the plaintiff is that there was such
security. The plaintiff
seems to simply dismiss the second
defendant’s argument of when she became a member of Whysalls and
thus acquiring the necessary
security.
Surely the plaintiff
would not have accepted the suretyship of the second defendant
without satisfying itself that there was sufficient
security against
which she could bind herself as a surety for the amount of
R2 million. If it was not in the form of membership
by the
second defendant in Whysalls, as argued by the second defendant, one
would then wonder what was considered by the plaintiff
to have
persuaded it to enter into the suretyship agreement.
[12]
The plaintiff also argues that although the second defendant denies
executing the suretyship, as pleaded,
however, she had not
specifically disputed that she was at the plaintiff’s premises on
30 July 2014 until she gave evidence in
court. In this regard, it
must be noted that at paragraph 10 of the plaintiff’s particulars
of claim, the plaintiff alleged that
the second defendant executed a
deed of suretyship, limited to an amount of R2 million, in
respect of the obligations of the
company. It was further indicated
that a copy of the deed of suretyship which is annexed and marked
“D”, only indicates that
it was signed in Durban without
specifying the plaintiff’s premises. The second defendant’s reply
in this regard is couched as
follows ‘[t]he second defendant denies
these allegations’.
[13]
In my mind, this response can safely be said to be in line with the
generalised tone of the allegation
made by the plaintiff. In the
premises, I am of the view that the plaintiff is not at liberty to
demand specifics from the second
defendant when its own allegations
were not thus couched.
[14]
Still, with regards to the allegations as per paragraph 10 of the
particulars of claim, the second defendant
had pleaded as follows:
‘
AD
PARA 10
13 . . .
14.
In the alternative
and in the event that it is held that the
second defendant signed the document annexed to the particulars of
claim marked “D”
then:
14.1
the plaintiff did not ever-
14.1.1
expressly request the second defendant to sign a suretyship;
14.1.2  inform
the second defendant that she was signing a suretyship;
14.2
the plaintiff, to the best knowledge of the second defendant,
presented the suretyship to the second
defendant for signature as
part of a bundle of documents which the plaintiff’s representative
explained were-
14.2.1
unrelated to the business of the company;
14.2.2  simply
for record-keeping or administrative purposes;
14.3
accordingly at the time that the second defendant signed the
suretyship, the plaintiff had represented
to the second defendant
that the document was not a suretyship
alternatively
would not
cause the second defendant to become bound to the plaintiff;
14.4
the second defendant signed the document in reasonable reliance on
what was conveyed as alleged in paragraph
14.2 above;
14.5
there was no reasonable appearance of consensus upon which the
plaintiff could have relied;
14.6
accordingly, the suretyship is not binding on the second defendant.’
[15]
The plaintiff argues that this alternative plea suggests that the
second defendant was at the plaintiff’s
premises. The plaintiff
further argues that the error that appears on the suretyship form
listing the principal creditor more than
once, does not invalidate
the suretyship. According to the plaintiff, this is so because the
second defendant did not pursue this
argument, notwithstanding it
being part of her plea.
[16]
According to
LTC
Harms
Amler’s
Precedents of Pleadings
9 ed (2011)
[1]
, it is usual to
insert a prayer for alternative relief but not necessary to do so
because the presence of such a prayer does not
entitle the court to
grant relief that is inconsistent with the terms and statements of
the express claim. See in this regard
Combustion
Technology (Pty) Ltd v Technoburn (Pty) Ltd
2003
(1) SA 265
(C);
Mgoqi
v City of Cape Town and Another; City of Cape Town v Mgoqi and
Another
2006 (4) SA 355
(C).
[17]
Section 6 of the General Law Amendment Act 50 of 1956 (Amendment Act)
deals with formalities in respect
of contracts of suretyship. These
are that:
[2]
(a)
The terms of the contract of suretyship must be embodied in a written
document signed by or
on behalf of the surety;
(b)
The document must identify the creditor, the surety and the principal
debtor;
(c)
In addition, the nature and amount of the principal debt must be
capable of ascertainment
by reference to the provisions of the
written document supplemented, if necessary, by admissible extrinsic
evidence.
[18]
The same section also deals with the obligations of a plaintiff who
wishes to claim on a deed of suretyship.
These are that, such
plaintiff must comply with the ordinary rules relating to the
pleading of contracts and that the onus rests
on such plaintiff to
allege and prove the following:
(a)
a valid contract;
(b)
that the causa debiti is one in respect of which the defendant
undertook liability and
(c)
the indebtedness of the principal debtor, that is the amount itself
and the fact that it is
due.
[19]
In commenting on the provisions of s 6 of the Amendment Act, CF
Forsyth and JT Pretorius
Caney’s
The Law of Suretyship
6
th
ed (2010), say the following on the issue of the formalities of a
suretyship
[3]
:
(a)
A ‘signature’ means any mark – whether it be a person’s full
name and surname, or
his initials and surname, or only his initials,
or a mere mark, placed on the contract with the intention of
identifying the signatory.
The learned authors further state that a
signature need not be in ink, nor be written in a specific manner or
in a specific place;
(b)
Further, the learned authors state that as a general rule these had
to be capable of ascertainment
by reference to the written document.
They further state that failure to include any of these terms in
writing, meant that there
was no compliance with s 6, and that, in
these circumstances, the contract would be void. The authors state
further that a meticulous
description of the principal debt and,
presumably, the various parties, is not required.
(c)
In this regard, the authors conclude that it is sufficient if the
essential terms can be properly
identified, and that extrinsic
evidence may, however, be required to identify the essential terms in
question. They state further
that evidence by the parties in regard
to their negotiations and consensus is excluded, the reason being
that, to admit such evidence
would be contrary to the provisions of s
6 as it would amount to ‘giving effect to a consensus not reduced
to writing and embodied
in the document’. See:
African Lumber Co
(Pvt) Ltd v Katz
1978 (4) SA 432
(C) at 435.
[20]
In her denial of her alleged liability to Nedbank, the second
defendant’s main contention is that she
did not attend at the
plaintiff’s premises and did not place her signature on the
document purporting to be a deed of suretyship.
The plaintiff has
correctly noted that in as much as the second defendant pleaded in
the alternative, such plea has not been pursued
in evidence before
court. In supplementation of her averment that she was not at the
plaintiff’s premises on the date in issue,
the second defendant
produced two computer generated documents which have already been
referred to earlier on in this judgment. In
an effort to have these
two documents admitted as part of her defence, she placed reliance on
the provisions of
s 15
of the
Electronic Communications and
Transactions Act 25 of 2002
.
[21]
Section 15(3)
provides as follows:
‘
(3)
In assessing the evidential weight of a data message, regard must be
had to-
(a)
The reliability of the manner in which the data message was
generated, stored or communicated;
(b)
The reliability of the manner in which the integrity of the data
message was maintained;
(c)
The manner in which the originator was identified; and
(d)
any other relevant factor.’
A consideration of
the record of the evidence in this matter will show that none of the
imperatives mentioned in subsec 3(1)(
a
) to (
c
) were
complied with by the second defendant in an attempt to place reliance
on the two documents.
[22]
In its reply to the second defendant’s heads of argument, the
plaintiff referred the court to
L A Consortium & Vending CC
t/a L A Enterprises v MTN Service Provider (Pty) Ltd
2011 (4) SA
577
(GSJ) para 19, where it was stated that:
‘
The
principle of ‘functional equivalence’ does not free data messages
from the normal strictures of the law of evidence, but only
from
those referred to in
s 15(1).
It follows that, despite the very wide
words of
s 15(4)
, any hearsay contained in a data message must pass
the criteria set out in s3 of the Law of Evidence Amendment Act 45 of
1988.’
(footnotes omitted)
Section 3(1)(
b
)
of the
Law of Evidence Amendment Act provides
that hearsay evidence
shall not be admitted as evidence at criminal or civil proceedings
unless the person upon whose credibility
the probative value of such
evidence depends, himself testifies at such proceedings.
[23]
Section 3(3)
of the same act makes a proviso that if the person upon
whose credibility the probative value of such evidence depends does
not later
testify it can also be admitted by the court if each party
against whom the evidence is to be adduced agrees to the admission
thereof
as evidence at such proceedings., .
Section 3(1)(
c
)
makes such admission dependent on the discretion of the court having
had regard to the circumstances listed under such subsection.
In the
present matter, the person on whose credibility the probative value
of the two documents depends did not testify, neither
were reasons
given why he did not testify. At one stage during the proceedings, a
stand down was requested so as to consider the
availability of such a
person. On resumption there was an indication that such person was no
longer going to be called to adduce
evidence relating to the two
documents produced by the second defendant. No reasons were advanced
for this decision. It stands to
reason that, in the circumstances,
the two documents qualify as hearsay evidence and they are
inadmissible.
[24]
On the issue of the validity of the suretyship document, it is true
that on a consideration of Annexure
“C”, the disputed suretyship
document shows a few shortcomings. The heading of the document is
entitled ‘Incorporating cession
of claims’ and in a handwritten
segment it shows ‘suretship’ (sic): where it refers to the
principal debtor, the entity is
depicted as three entities under one
name but with different registration numbers.
[25]
The issue to be decided is whether the aforementioned shortcomings
invalidate the suretyship. In
Fourland (Pty) Ltd v Maddison
1977
(1) SA 333
(A) at 345, the following was stated regarding the
identity of the principal debtor
‘…
identification
of the principal debt and debtor is not only a term of the contract
but is essential to the creation of the surety’s
liability,
suretyship being an accessory obligation. It is a term of the
contract in the true sense, in that it both defines and
limits the
surety’s obligation under the contract and determines the extent or
scope of the rights and obligations of the parties.’
This
same sentiment was referred to with approval in
Industrial
Development Corporation of SA (Pty) Ltd v Silver
2003 (1) SA 365 (SCA)
[4]
.
[26]
In
Sapirstein and Another v Anglo African Shipping Co (SA) Ltd
1978 (4) SA 1
(A) at 3F-H, the following was stated
‘
The
test for the validity of the suretyship is whether “the reasonable
person” or the “reasonably intelligent reader” may
clearly
visualise, or “obtain a clear picture”, of the description of the
terms (the principal debt)
ex facie
the writing, without recourse to the oral evidence…of either of the
parties…If the principal debt does not so appear
ex
facie
the writing, then the writing is
an avoidance of embodying the terms of the suretyship, as the
suretyship is then only partly written
and partly oral, which is
exactly what the legislature wanted to avoid, as a reference to the
oral part could lead to dispute which
the writing could not, on its
own, “set at rest”’. (footnotes omitted).
[27]
The second defendant is, in my opinion, and having seen her testify
before court, one of those ‘reasonably
intelligent readers’.
Although not a shareholder at the entity, she, however, played a
vital role to assist her ex-husband in the
day to day running of the
business. In her own right, and around February 2015, she became a
member of Whysalls. In
Industrial
Development Corporation of SA (Pty) Ltd,
[5]
the suretyship document did not reflect the name of the principal
debtor at all, with the space reserved for the inclusion of the
principal debtor’s name having been left blank. The court of appeal
held that the principle of incorporation by reference applied
in
cases of sales of land and that there was no justification for
holding that the principle did not apply in the case of contracts
of
suretyship.
The appellant was
thus allowed to rely on the reference in the deed of suretyship to
the loan agreement, which in turn disclosed the
identity of the
principal debtor.
[28]
In the present case, the principal debtor is identified in the
suretyship agreement, the only difference
is that it is reflected
three times under different registration numbers. A consideration of
the agreement shows the name of the
principal debtor and the
registration number. The registration number on the agreement,
corresponds with at least one of the registration
numbers appearing
on the entities cited in the suretyship agreement. I am of the view
that the discrepancies in the suretyship agreement
are not of such
magnitude as to invalidate the agreement itself. The principal debtor
is easily identifiable, even by the principle
of incorporation if the
suretyship document is contrasted with the agreement. In the
circumstances, this defence by the second defendant
falls to be
rejected.
[29]
It has been argued that the probabilities do not favour that the
plaintiff’s representative, Ms Kirpal
would produce a document
riddled with errors and knowingly allow a client to sign the said
document. The other improbability that
has been raised is that of Ms
Kirpal having an independent recollection of the exact documents
signed by the second defendant. This
is so, as argued on behalf of
the second defendant, because the document in question was concluded
in the course and scope of ordinary
business, that there was nothing
untoward or extraordinary about the transactions. The other averments
raised on behalf of the second
defendant are that it is highly
improbable that the defendant would bind herself as a surety when she
had no interest whatsoever
in the company; that she was, at that
stage, not on good terms with ‘the soon to be ex-husband’ and
where she was never asked
to sign a deed of suretyship.
[30]
Against the improbabilities being raised by the second defendant, the
following aspects must be considered:
(a)
The disputed signature on the deed of suretyship document is only the
defendant’s say so.
As correctly pointed out by the plaintiff, the
second defendant is not a handwriting expert. She cannot be the judge
in her own case,
that is, comparing and disputing her own signature
in a case like the present where the plaintiff places reliance on the
averment
that the second defendant signed the disputed document.
Surely her own comparison carries no weight. It is clearly bound to
be biased
in favour of her case.
(b)
When the second defendant was told about the existence of the
suretyship in 2016, she did
not challenge it. She said she waited for
the issuance of process. This is improbable if one considers the
amount she was alleged
to have bound herself surety to. One would
have expected the second defendant to make it clear to Ms Kirpal at
that first mention
of the suretyship that she was not party to such
an agreement. Her case in this regard is further weakened by the fact
that even
when she pleaded, this was never raised, neither did she
give an indication that the signature on the document was being
disputed
as well as the allegation of her attendance at the
plaintiff’s premises.
(c)
The second defendant cannot rely on the state of her relationship
with her now ex-husband
seeing that a year after the alleged
signature on the suretyship, she was at a meeting with the very same
husband. It does not assist
the second defendant that they had
arrived in separate vehicles. From her own statement, when the court
wanted to know why the ex-husband
was at that meeting, she told the
court that the reason was that he wanted the deal to be processed so
that he could be in a position
to utilise the vehicle that was being
purchased at his own company. Surely this means that the two parties
were still very much in
touch even after the alleged signing of the
suretyship document.
(d)
I have dealt extensively with the reasons why the two documents
produced by the second defendant
cannot be of any assistance to prove
that she could not have been at the plaintiff’s premises.
[31]
The approach expounded in
Stellenbosch Farmers’ Winery Group Ltd
and Another v Martell Et Cie and Others
2003 (1) SA 11
(SCA) at
14-15 relating to a resolution of a factual dispute by a court and to
ascertain where the truth lies between two conflicting
factual
assertions, is as follows:
‘
To
come to a conclusion on the disputed issues a court must make
findings on:
(a)
the credibility of the various factual
witnesses;
(b)
their reliability; and
(c)
the probability or improbability of each
party’s version on each of the disputed issues.
. . .
In light of its
assessment of (a), (b) and (c), the court will then, as a final step,
determine whether the party burdened with the
onus of proof has
succeeded in discharging it. The hard case, which will doubtless be
the rare one, occurs when a court’s credibility
findings compel it
in one direction and its evaluation of the general probabilities in
another. The more convincing the former, the
less convincing will be
the latter. But when all factors equipoised probabilities prevail.’
[32]
Having considered the credibility of the plaintiff’s witnesses as
well as that of the second defendant
as a witness along with their
reliability, I am satisfied that the probabilities favour a finding
that the second defendant was at
the plaintiff’s premises on 30
July 2014 and did sign the suretyship agreement wherein she bound
herself as a surety to the amount
of R2 million. The second
defendant’s defences accordingly fall to be rejected as improbable
and not reliable.
QUANTUM AND
COSTS
[33]
The second defendant has raised issues in so far as the outstanding
amount is concerned. Her argument
is that, in the event of the court
finding that the document that is being challenged is a valid and a
binding deed of suretyship,
then the court should consider the
provisions of clause 10 of the offer of banking facility clause
10.1.2 of this covenant, which
reads as follows:
‘
Shareholder(s)
loan funds, minimum R1 500 000 (one million five hundred
thousand rand), to be ceded and not to be withdrawn
without prior
consent of Nedbank’.
[34]
According to the second defendant, the plaintiff’s evidence of,
Sijabulile Sibongile Ntshangase, employed
by the plaintiff presently
as a divisional manager, but previously having held the position of
the Recoveries Manager was that the
amount of R1.5 million was not
deducted from the outstanding balance as she was not aware of the
aforesaid security. The second defendant
further avers that the
plaintiff did not deny the existence of such security which means it
still holds the aforesaid amount. That
being the case, the second
defendant’s submission is that the aforesaid amount ought to be
deducted from the outstanding balance
before the plaintiff can rely
on any other security in the form of a surety.
[35]
This argument by the second defendant is challenged by the plaintiff
who avers that the unchallenged
evidence of Ms Ntshangase was that,
save for the first and second defendants, all recoverable security
had been recovered and allocated
against Typically Midlands accounts.
The other leg of the plaintiff’s argument is that its cause of
action arises principally from
annexure “A” (The Term Loan
Agreement) and not exhibit C34 which is the suretyship agreement.
According to the plaintiff, these
two documents are not the same.
[36]
In my view, the key word in this argument is ‘all recoverable
security’. In the circumstances, Ms
Ntshangase’s evidence stands,
including the evidence on her certificate of balance. As a result,
the argument by the second defendant
on the issue of the amount of
R1.5 million remains unsubstantiated.
[37]
The plaintiff has sought an order amending the particulars of claim
so as to claim the costs of suit.
It notes it had omitted the claim
for costs in the delivery of its amended pages, notwithstanding the
fact that the notice of amendment
did not make such withdrawal. In
the circumstances, the plaintiff seeks an order amending the
particulars of claim so as to claim
costs. The other amendment being
sought by the plaintiff is that of the second defendant’s names
from Louise Helen Dolbey to Louise
Helen Riddle. This application
follows on some of the queries raised by the second defendant on
reasons why she could not have signed
the suretyship document. She
noted that her surname was spelled incorrectly in the marital status
declaration.
[38]
I am inclined to grant these two amendments for the following
reasons:
(a)
Costs are at the discretion of the court. It is trite that costs
follow the result unless
there may be a just cause shown for
deviation from this practice.
(b)
A change in the second defendant’s surname does not entail any
prejudice to her, at any
rate, when she entered into a suretyship
agreement she was still married to the first defendant; her now
ex-husband. So a change
in her present surname will have no adverse
effect on her.
[39]
In the final analysis, I am satisfied that the plaintiff has made out
a case for the order that it seeks.
I accordingly grant the following
order:
(a)
The plaintiff’s summons and particulars of claim are amended so as
to reflect the second
defendant as LOUISE HELEN RIDDLE;
(b)
Subject to paragraph 3 hereunder, judgment is entered against the
first and second defendants,
jointly and severally, the one paying
the other to be absolved, for:
(i)
Payment in the amount of R2 454 998-62;
(ii)
Interest thereon at a rate of 10.50% per annum from 09 May 2017 to
date of payment
in full;
(iii)
Costs of suit
(c)
Save that:
(i)
The judgment against the second defendant is limited to R2 million;
(ii)
The first defendant is not required to pay any costs from 26 August
2020.
Hadebe
J
APPEARANCES:
Date
of Hearing:

07
October 2020
Date
of Judgment:

28
April 2021
Counsel
for the Plaintiff:
Adv. D.W.
Eades
Instructed
by:
Shepstone & Wylie
Ref
No:
DJDV/NEDC1.5959
Counsel for the 2
nd
Defendant:     Adv. Z. Ploos van Amstel
Instructed
by:
Morris Fuller Williams Inc.
Ref
No:
Ms S Taylor/D031
[1]
LTC
Harms
Amler’s
Precedent of Pleadings
at 350
[2]
Sapirstein
and Another v Anglo African Shipping Co (SA) Ltd
1978
(4) SA 1
(A) at 12B-D.
[3]
At
chapter 5 – p.69 – p.72
[4]
At
3 F - H
[5]
Industrial
Development Corporation of SA (Pty) Ltd
para
6.