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[2023] ZAFSHC 20
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Standard Bank of South Africa v Mokoena (4150/2021) [2023] ZAFSHC 20 (3 February 2023)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Case
number: 4150/2021
Reportable:
YES/NO
Of
interest to other Judges: YES/NO
Circulate
to Magistrates: YES/NO
In
the matter between:
THE
STANDARD BANK OF SOUTH AFRICA
Applicant / Plaintiff
[Registration
Number: 1[…]]
And
ALETTA
MALESELA MOKOENA
Respondent/ Defendant
[Identity
number: 6[…]]
HEARD
ON:
15 SEPTEMBER 2022
JUDGMENT
BY:
DANISO, J
DELIVERED
ON:
This judgment
was handed down electronically by circulation to the parties'
representatives by email and by release to SAFLII. The
date and time
for hand-down is deemed to be 11h00 on 03 February 2023
[1]
This opposed summary judgment application arises from a summons
issued by the applicant
(“plaintiff”) against the
respondent “(defendant”) as surety for payment of
R1 238 634.83 together
with interest and costs.
[2]
The opposing affidavit raises points
in
limine
in terms of which the
defendant essentially complains about the plaintiff’s lack of
compliance with Uniform Rule 32.
[3]
According to the defendant, the plaintiff’s supporting
affidavit is fatally
defective for want of compliance with subrule
(2) (a) and (b) and regulations 2(1), 3(1) and 4(1) of the
regulations governing
the administering of oath or affirmation
[1]
.
[4]
It is the defendant’s case that in the affidavit, the deponent,
Farhana Essop
has declared that she is “…
an
adult female
” whereas the
commissioner of oaths’ certificate refers to the deponent as a
“he”. Accordingly, no reliance
can be placed on the
commissioner of oaths certification. It cannot be confirmed whether
the deponent was in fact the female Farhana
Essop in whose name the
affidavit was made and/or the affidavit was signed and sworn to in
the presence of the commissioner of
oaths. The defendant further
states that the deponent was not party to the negotiations and/or
conclusion of the alleged agreements
between any of the parties
therefore she has no personal knowledge of the facts contained in the
said affidavit and the facts that
the plaintiff will have to
establish against the defendant to verily deny that the respondent
has no bona fide defence to the plaintiff’s
claim. Lastly, the
supporting affidavit does not identify any point of law relied upon
and the basis upon which the plaintiff contends
the defence raised by
the defendant does not raise any issue for trial.
[4]
Regulation 4 (1) provides that:
“
Below
the deponent's signature or mark the commissioner of oaths shall
certify that the deponent has acknowledged that he knows
and
understands the contents of the declaration and he shall state the
manner, place and date of taking the declaration
.”
[5]
The commissioner of oaths certified the affidavit as follows:
“
I
certify that the above signature is the true signature of
FARHANA
ESSOP
and that he acknowledged that he knows and
understands the contents of this affidavit, which was signed and
sworn to before me at
my office at ALBERTON on this 12
th
day of
APRIL 2022
in accordance with the
provisions of Regulation No. 1258 dated 21 July 1972 (as amended) and
Government Notice Number R1648 dated
19
th
August 1977 as amended.
”
[6]
The provisions of regulation 4(1) are directory not peremptory in
that, failure to
comply can be condoned at the discretion of the
court where it is clear from other indications in and on the document
that an oath
was in fact administered.
[2]
[7]
Ex
facie
the
affidavit it is evident that the deponent is a female.
[3]
Except for the erroneous use of the pronoun “he” instead
of “she” by the commissioner of oaths, the circumstances
under which the affidavit was commissioned are clear namely, the
date, place and also the details of the commissioner of oaths.
I am
satisfied that the error does not render the plaintiff’s
affidavit fatally defective in the sense that the court would
be
unable to give effect to the presumption of regularity for the
purposes of assuming that the oath was sworn to and signed in
the
presence of the commissioner of oaths. The defect is
accordingly condoned.
[8]
On the available facts, the plaintiff is a legal entity hence the
supporting affidavit
was deposed to by its authorised employee Ms
Essop. Expectedly, Ms Essop would not possess first-hand knowledge of
every fact relied
upon by the plaintiff and having regard to the
averments in her affidavit, Ms Essop has relied on the records in the
plaintiff’s
possession for the personal knowledge of the
relevant facts. In her affidavit she states that:
“
1.1.
I am an adult female Head, Defended Legal, Credit Operations,
Personal and Business Banking Credit, The Standard
Bank of South
Africa Limited (“the Plaintiff”) and employed as such at
the Plaintiff’s offices situated at […]
F[…],
[…] S[…] Street, Johannesburg.
1.2.
I have been duly authorised on behalf of the Plaintiff and represent
the Plaintiff in these proceedings.
My authority is derived from the
letter of authority attached hereto marked
Annexure
“SD1
.”
1.3.
The facts contained are, unless indicated to the contrary, within my
own direct knowledge, and
are to the best of my belief true and
correct.
1.4
Where such facts do not, strictly speaking, fall within my own direct
knowledge, they appear
from files, documents, statements or account,
contemporaneous notes, records of transactions and/or communications
of the Plaintiff
staff members. I submit that these transactions are
electronically stored upon the Plaintiff’s computer system
which are
data messages as defined in the Electronic Communications
and Transactions Act no.25 of 2002 (“the ECT Act’). In
the
circumstances, I confirm that I am an officer of the Plaintiff in
terms of the ECT Act.
1.5
Where records are relied upon below and have been stored
electronically and constitute “data”
or “data
messages” within the meaning of the ECT Act, I certify such
records in accordance with section 15 (4) thereof
as being true and
correct representations of such records, which have been stored by
electronic means.
1.6
I have control over and have personal
knowledge of the transactions relevant to the Plaintiff’s
dealings with the Defendant and I have familiarised myself with the
content thereof during the normal course and scope of my duties
with
the Plaintiff.
1.7.
I have also acquainted myself with the documents relating to the
litigation between the Plaintiff
and the Defendant.
1.8.
I therefore positively verify the cause of action as set out in the
particulars of claim. I thus
verify the facts and allegations
surrounding the cause of action, the documents relied upon by the
Plaintiff, the cause of action
itself and the amount claimed (relief
sought) by the Plaintiff.”
[9]
In
Shackleton
Credit Management (Pty) Ltd Microzone Trading 88 CC and Another
[4]
it
was held that “
first-hand
knowledge of every fact relied upon by the plaintiff in its claim is
not required and that it is not peculiar for the
deponent to rely on
the records in the company’s possession for the personal
knowledge of the relevant facts and actual ability
to swear
positively to such facts
.”
[10]
Similarly, I do not agree with the defendant’s contention that
the supporting affidavit must
identify the point of law relied upon
and the basis upon which the plaintiff contends the defence raised by
the defendant does
not raise any issue for trial. The grounds upon
which the plaintiff contends that the defendant’s defences are
bogus are
succinctly set out at paras 9 to 14 of the plaintiff’s
affidavit. The law is rite on this aspect. In
Tumileng
Trading CC v National Security and Fire (Pty) Ltd; E and D Security
Systems CC v National Security and Fire (Pty) Ltd,
[5]
it was held that these words cannot be taken literally because:
“
[21] The
requirement that the plaintiff’s supporting affidavit should
explain briefly why the pleaded defence ‘does
not raise an
issue for trial’ is of more interest. It cannot be taken
literally, for a plea that did that would be
excipiable, and there is
no indication that the amended summary judgment procedure is intended
as an alternative to the exception
procedure. For the reasons
given later with regard to the cases before me, I consider that the
amended rule 32(2)(b) makes
sense only if the word ‘genuinely’
is read in before the word ‘raise’ so that the pertinent
phrase reads
‘explain briefly why the defence as pleaded does
not genuinely raise any issue for trial’. In
other
words, the plaintiff is not required to explain that the plea
is excipiable. It is required to explain why it is contended
that the pleaded defence is a sham. That much is implicit in
what the Task Team said in para. 8.3 of its Memorandum. The
position would have been made clearer had the words ‘does not
make out a bona fide defence’ been used. That would
have
made for a more clearly discernible connection between the respective
requirements of subrules (2)(b) and (3)(b). That
there be such
a connection is necessary if the amended rule as a whole is to be
workable
.”
“
[23] It
seems to me, however, that the exercise is likely to be futile in all
cases other than those in which the pleaded defence
is a bald
denial. This is because a 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. It is
concerned only with an assessment of whether the
pleaded defence is
genuinely advanced, as opposed to a sham put up for purposes of
obtaining delay. A court engaged in that
exercise is not going
to be willing to become involved in determining disputes of fact on
the merits of the principal case.
As the current applications
illustrate, the exercise is likely therefore to conduce to
argumentative affidavits, setting forth
as averments assertions that
could more appropriately be addressed as submissions by counsel from
the bar. In other words,
it is likely to lead to unnecessarily
lengthy supporting affidavits, dealing more with matters for argument
than matters of fact.”
[11]
Based on these reasons above, I am inclined to dismiss the
defendant’s points
in limine
in
toto
.
[12]
I now turn to consider whether the defences raised by the defendant
raise issues deserving to
be entertained at trial.
[13]
The plaintiff’s claim is premised on a breach of a home loan
agreement concluded between
the plaintiff and Seriso 203 CC
(“Seriso”) as the principal debtor on 4 June 2007. It is
the plaintiff’s case
that the agreement incorporated a
suretyship agreement in terms of which the defendant and the deceased
bound themselves as sureties
and co-principal debtors for Seriso’s
unpaid debts. Annexure “F” of the particulars of claim is
a copy of the
said suretyship agreement and Annexure “E”
is the certificate of balance evidencing the computation of the
capital
amount due and the interest rate applicable.
[14]
It is the plaintiff’s submission that the defendant’s
opposing affidavit does not
raise triable issues it merely alludes to
unmeritorious technical defences and a bare denial of the plaintiff’s
claim.
[15]
On the other side, the plaintiff’s claim is disputed on the
basis that the plaintiff’s
locus
standi
to institute these
proceedings against the defendant has not been established in that,
in the particulars of claim it is alleged
that the plaintiff is “
a
company duly incorporated according to the Company Laws of the
Republic of South Africa
”
whereas the plaintiff is a bank and it can only be “
registered
in terms of the Banks Act, 94 of 1990 as amended.
”
The defendant also denies having signed the suretyship agreement and
that the plaintiff is entitled to the interest claimed
viz
:
8.5% per annum.
[16]
On the facts germane to this matter it is not in dispute that the
plaintiff’s citation
is erroneous. According to the plaintiff
locus standi
has nothing to do with a party’s valid claim against another it
merely refers to a party’s capacity to litigate and
the fact
that the applicant has omitted to aver that it is a ‘bank
registered in terms of the Banking Act’ can be rectified
with
an amendment of the particulars of claim. The amounts due including
the interest rate have been set out in the certificate
of balance
which constitutes prima facie proof of the debt. There is also no
merit to the defendant’s contention that she
was not party to
the suretyship agreement, her signature appears above her personal
details in the suretyship agreement.
[17]
I do not agree with the defendant’s contentions. Having regard
to the defendants’
plea and the opposing affidavit, the home
loan and the suretyship agreements (except in relation to the
defendant) including their
essential terms are not disputed which
means the plaintiff exists. A
misdescription
which
involves
the citation of a party is not an impediment to instituting legal
proceedings. It can be cured with an amendment at any
stage of the
proceedings including after judgment.
[6]
[18]
With regard to the
disputed signature, as much as the
defendant is not expected to deal exhaustively with the facts and the
evidence she relies upon
to substantiate her defence she must at
least disclose the grounds for her defence and the material facts
upon which the defence
is based with sufficient particularity and
completeness to enable the court to decide whether a bona fide
defence which raises
a triable issue has been disclosed.
[19]
In
Breytenbach
v Fiat SA (Edms) Bpk
[7]
it was held that a defendant “cannot approach the court with
bold, vague and sketchy defences.” This was reiterated
in
NPGS Protection & Services CC v First Rand Bank Ltd
[8]
where the Supreme Court of Appeal said:
“
The
ever increasing perception that bald averments and sketchy
propositions are sufficient to stave off summary judgment is
misplaced
and not supported by the trite general principles developed
over many decades by our courts. See for example, the well-known
judgment
of this court in Maharaj v Barclays National Bank Ltd
1976
(1) SA 418
(A) where the proper approach to application of summary
judgments are stated.”
[20]
A Summary judgment procedure is intended to ensure that a defendant
with a triable issue or a
sustainable defence has her day in court
and that recalcitrant debtors pay what is due to their creditors.
[9]
The scant averments proffered by the defendant in this regard are
nothing more than a bare denial. They essentially cast doubt
on the
defendants’ bona fides.
[21]
Taking into consideration the facts of this matter, I am satisfied
that the plaintiff’s
claim against the defendant has been
clearly established. I am not persuaded that the defendants’
defence as pleaded
and also set out in the opposing affidavit
discloses a bona fide defence that is good in law to result in a
triable issue.
[22]
In the circumstances,
following
order is granted:
1.
Summary Judgment is granted
against the defendant for
;
1.1.
Payment of the sum of R1 238 634.83;
1.2.
Interest on the said amount, at the rate of 8.5% per annum calculated
from 27 June 2021
to date of final payment.
1.3.
The defendant shall pay the costs on an attorney and client scale.
N.S.
DANISO, J
APPEARANCES:
Counsel
on behalf of the applicant:
Adv K.N Petersen.
Instructed
by:
NOORDMANS ATTORNEYS
BLOEMFONTEIN
Counsel
on behalf of the respondent:
Adv R. KRIEK
Instructed
by:
HILL MCHARDY HERBST
BLOEMFONTEIN
[1]
Government
Notice R1258 dated 21 of July 1972 (as amended) promulgated in terms
of the Justices of the Peace and Commissioners
of Oaths Act No, 16
of 1963.
[2]
Nkondo
v
Minister
of Police and Another
1980 (2) SA 362
(O) at 365C
[3]
In para 1.1. of the affidavit, the deponent states that: “
I
am an adult female
.”
[4]
2010 (5) SA 112
(KZP), para 7.
[5]
(3670/2019)
[2020] ZAWCHC 28
;
2020 (6) SA 624
(WCC) (30 April 2020).
[6]
Mutsi
v Santam Versekeringsmaatskappy Bpk en ’n Ander
1963
(3) SA 11
(O);
Golden
Harvest (Pty) Ltd v Zen-Don CC
2002
(2) SA 653
(O);
Luxavia
(Pty) Ltd v Gray Security Services (Pty) Ltd
2001
(4) SA 211
(W);
Four
Tower Investments (Pty) Ltd v Andre’s Motors
2005 (3) SA 39 (NPD).
[7]
1976(2) SA 226 (T) at 229 F-H.
[8]
2020 (1) SA 494
(SCA) AT 498I -499A.
[9]
Maharaj
v Barclays National Bank Ltd
1976 (1) SA 418
(A) at 425G-426E;
Joob
Joob Investments v Stocks Mavundla Zek Joint Venture
[2009]
All SA 407(SCA)
;