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2023
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[2023] ZAFSHC 127
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Firstrand Bank Limited t/a First National Bank v Cronje and Others (3955/2019) [2023] ZAFSHC 127 (20 April 2023)
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IN THE HIGH COURT
OF SOUTH AFRICA,
FREE STATE
DIVISION, BLOEMFONTEIN
Case number: 3955/2019
Reportable: YES/NO
Of interest to other
Judges: YES/NO
Circulate to
Magistrates: YES/NO
In the matter between:
FIRSTRAND BANK LIMITED
t/a FIRST NATIONAL
BANK
PLAINTIFF
and
PHILIPPUS
JOHANNES JACOBUS CRONJE
1
ST
DEFENDANT
ADOLF
JOHANNES DE BRUIN N.O.
2
ND
DEFENDANT
PHILIPPUS
JOHANNES JACOBUS CRONJE N.O.
3
RD
DEFENDANT
CECILE
CRONJE
N.O.
4
TH
DEFENDANT
ANDRIES
GUSTAV LE GRANGE N.O.
5
TH
DEFENDANT
(In
their capacity as trustees of the PC Trust registration
Number
IT[...])
DIE
CRONJE SEUNS BOERDERY CC
6
TH
DEFENDANT
HENDRIK
BERNARDUS CRONJE
7
TH
DEFENDANT
HESTER
CRONJE
N.O.
8
TH
DEFENDANT
(In
their capacity as trustees of the Hendrik Cronje Family
Trust
registration number IT[...])
JUDGMENT
BY:
C REINDERS, J
HEARD
ON:
18 JANUARY 2023
DELIVERED
ON:
20 APRIL 2023
[1]
This is an application brought by the defendants (as served on the
plaintiff on 14
November 2022) for the dismissal of the claims
instituted by the plaintiff (FNB – “the bank”)
against the defendants
under civil case number 3955/2019. For the
sake of clarity, the parties will be referred to as in the action.
[2]
It is common cause that the plaintiff on 27 August 2019 instituted
action proceedings
against the defendants for payment in the amount
of more than R30 million together with interest and costs. The
claims are
against the defendants jointly and severally, the one
paying the other to be absolved. The claims arise from an overdraft
facility
and four loan agreements. The plaintiff’s cause of
action is based on the allegation that the defendants have breached
the
agreements and are thus indebted to the plaintiff. When the
action was instituted, the plaintiff also sought orders of
executability
over certain immovable properties by virtue of twelve
registered mortgage bonds.
[3]
On 11 December 2019 the defendants caused to be filed their plea
seeking orders, amongst
others, an order in terms of the provisions
of s130(4)(b) of the National Credit Act 34 of 2005 (the “NCA”)
declaring
that the bank has not complied with the provisions of s129
of the NCA; an order that the de facto control of the PC Trust rests
with Mr PJJ Cronje (Mr Cronje, the first defendant); that the trust
operated as Mr Cronje’s alter ego and that the debt of
the PC
Trust to the bank must be added to Mr Cronje’s indebtedness
when assessing Mr Cronje’s financial position.
A further
order is sought in terms of s85 of the NCA referring the bank’s
claims against Mr Cronje, the trustees of the PC
Trust and Cronje
Seuns Boerdery to a debt counsellor who is to make a recommendation
to court. Defendants seek an order declaring
the overdraft facility
and business loan agreement to be the granting of reckless credit.
[4]
After the pleadings were considered to be closed in terms of Rule
29(b)(1) of the
Uniform Rules of Court (the “Rules”) on
27 December 2021 the defendants served a request for further
particulars on
plaintiff in terms of Rule 21(2). On even date the
defendants also served a notice in terms of Rule 35(3) indicating
further documents
to be produced by plaintiff.
[5]
On 24 February 2022 I was called upon to adjudicate an application
brought by plaintiff
for leave to amend its particulars of claim
(mentioned in para [2] above) in terms of Rule 28(4). The defendants
opposed the relief
sought and filed a counter-application praying,
amongst others, that the bank be ordered to furnish a reply to
defendants’
notice in terms of Rule 35(3) and to defendants’
request for trial particulars (both dated 27 December 2021), failure
whereof
it could approach court on supplemented papers for the
dismissal of plaintiff’s claims. At the time, the plaintiff had
not
responded to either the request for further particulars or the
Rule 35 (3) notice.
[6]
Having duly considered the papers and submissions by counsel, I
granted the following
order on 30 May 2022 (“the court order”):
1.
Leave is granted to the plaintiff in the main action (case no
3955/2019) to effect the amendment to its existing
particulars of
claim in the respects and to the extent contained in plaintiff’s
notice of intention to amend dated 23 December
2021.
2. The
reference to the word “second” in paragraph 68 of the
plaintiff’s notice of intention
to amend dated 23 September
2021 is removed and substituted with “third”.
3.
Plaintiff is ordered to furnish a reply to defendant’s notice
in terms of rule 35(3) dated 27 October
2020, within 20 days of this
order.
4.
Plaintiff is ordered to furnish a reply to defendants’ request
for further particulars dated 27 October
2020 within 20 days of this
order.
5.
Failing compliance by plaintiff with the orders in paragraphs 3
and/or 4 above, leave is granted to defendants
to approach this court
on the same papers duly supplemented for an order dismissing
plaintiff’s claim/claims.
6.
Plaintiff is ordered to pay defendants’ costs of the
application on a party and party scale, such costs
to include the
costs of two counsel where so employed.”
(emphasis added)
[7]
As leave was granted to the plaintiff to effect the amendment (which
inter alia excluded
the prayers for executability of the properties),
reference will be to the amended particulars of claim henceforth. The
defendants
issued the application which currently serves before me,
praying that the plaintiff’s claims as contained in its
combined
summons and amended particulars of claim be dismissed with
costs (including costs of two counsel) on an attorney and client
scale.
The application is opposed by the plaintiff, seeking that the
application be dismissed with costs on a punitive scale.
[8]
Mr Cronje (one of the trustees of the PC Trust, averring that he has
been duly authorised
to depose to the affidavit on behalf of the
trust) in the founding affidavit refers to prayers 3 and 4 of the
order and states
that the current application seeks to supplement
“the papers filed in the counter-application” in terms of
the leave
granted to do so as per prayer 5 of the court order. It is
submitted by the deponent that the defendant has failed to comply
“with
the above stated portion of the 30 May judgment and as
such approach this court for a dismissal of the respondents’
claims
as contained in the summons and particulars of claim.”
[9]
It is common cause that the plaintiff filed a reply to defendant’s
request for
further particulars on 24 June 2022, and its reply to the
Rule 35(3) notice on 27 June 2022, thus within the 30 days as
mandated
by the court order.
[10]
Both parties were represented by senior and junior counsel, and filed
comprehensive heads of argument.
I am indebted to counsel for the
assistance and arguments in open court. It is perhaps prudent to
mention that defendants seek
the dismissal of the plaintiff’s
claims in main based thereon that I am to find that plaintiff failed
to comply with the
orders
supra
made by me on 30 May 2022. I
was reminded of the provisions of Rule 21(4) and Rule 35(7) of the
High Court Rules and I was urged
to find that plaintiff abuses the
process of court, entitling me to dismiss the plaintiff’s
claims. It was also suggested
that defendants’ right to a
speedy trial in terms of the Constitution is negated which, in
itself, constitute grounds for
dismissal of the plaintiff’s
claims.
[11]
I have carefully considered the arguments on behalf of both parties,
but notwithstanding the passionate
arguments on behalf of defendants
I am not convinced that there are grounds entitling me or compelling
me to dismiss the plaintiff’s
claims. More specifically, the
relevant orders granted by myself on 30
May 2022 compelled
the plaintiff to deliver an answer to the request for further
particulars and the Rule 35(3) notice. It did not
compel the
plaintiff to either furnish the particulars and/or to produce the
documentation requested. On the contrary, it required
of the
plaintiff to respond thereto by furnishing an answer. It is common
cause that the plaintiff within the stipulated days delivered
answers
as ordered. Once the plaintiff has filed the answers, there can in my
view be no dispute that they have in fact complied
with the order. It
might be that the defendants are not satisfied with the answers, but
that is a long way from finding that the
plaintiff did not comply
with the order. Once a party has received an answer as ordered, it is
for that party to consider whether
it is satisfied with the answer or
not. In the event that such a party is not satisfied it can bring an
application to compel its
opponent to supply further and/or better
particulars and/or to discover the document in the event where the
other party has raised
an objection thereto. A court will then
adjudicate those propositions based on the facts before it. This
application does not seek
orders to compel, it seeks the dismissal of
the action at this stage. In my view the application to dismiss is
therefore premature.
[12]
The order that I granted on 30 May 2022 entitling the defendants to
approach court for dismissal of
plaintiff’s claims was given in
circumstances where the plaintiff had for a considerable time not
responded to the request
for further particulars and/or the Rule
35(3) notice. I ordered the plaintiff to respond thereto, granted it
30 days and, in the
event plaintiff failed to respond, granted the
defendants the right to approach court for dismissal. That had the
required result
and the plaintiff did respond.
[13]
For the above reasons the application cannot succeed and stands to be
dismissed.
[14]
Both parties suggested in the event of success that I allow the costs
of two counsel which I intend
to do. Defendants submitted that in the
event I decide that the plaintiff “be afforded yet another
opportunity to comply
with the 30 May judgment, such indulgence must
be accompanied by a harsh punitive cost order against FNB.” As
is evident
from paras [10] and [11] herein above, I did not find that
plaintiff failed to comply with the orders as was submitted by
defendants,
nor did I exercise my discretion to dismiss plaintiff’s
claims against defendants on any of the alternative grounds relied
upon by defendants for the relief claimed in this application. The
defendants request that I should show my displeasure with the
manner
in which the plaintiff has conducted this trial in causing delays,
and take into account that defendants may ultimately
be forced to
abandon their opposition to the plaintiff’s claims due to
financial constraints. The defendants elected to bring
this
application and the plaintiff, faced with the possibility of a
dismissal of its claim, had to defend the application. The
plaintiff
is in my view entitled to its costs, although I do not intend to
award same on a punitive scale as requested.
[15]
The defendants accuse the plaintiff of trampling on their
Constitutional right to a speedy trial. Undoubtedly
it is in the
interest of justice for all parties that this matter be brought to
finality. To alleviate the aforementioned
complaint of the
defendant, the procedures provided for in Uniform Rule 37(A) will in
my view achieve such results. Once the matter
is enrolled on the
pre-trial roll, it will ensure that the case is trial-managed and
swiftly dealt with. Should the defendants
feel the need to expedite
finalisation of the matter, it would then be open to them to request
the pre-trial judge to order expedited
time frames in respect of all
outstanding issues. This option would obviously be open to the
plaintiff as well and would dispel
the notion that inordinate delays
in finalising the matter are as a result of their actions/inactions.
Although neither of
the parties prayed for orders in respect of
trial-managing the action, I find it prudent to make such orders as
will be reflected
below.
[16]
I therefore grant an order in the following terms:
1. The
application is dismissed with costs, such costs to include the
employment of two counsel.
2. The
main action under Case Number 3955/2019 is referred to the pre-trial
roll of 12 June 2023.
3. The
parties are ordered to convene a pre-trial meeting in compliance with
Uniform Rule 37(A) by no later than
26 May 2023 and file the minutes
thereof in the court file not less than 7 (seven) days before the
pre-trial date of 12 June 2023.
C.
REINDERS, J
On
behalf of the plaintiff:
Adv
DJ van der Walt SC
Adv S
Tsangarakis
Instructed
by:
Symington
& De Kok
BLOEMFONTEIN
On
behalf of the defendants:
Adv H
van Eeden SC
Adv B
van der Merwe
Instructed
by:
Lovius
Block
BLOEMFONTEIN