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[2023] ZAKZPHC 111
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Bridgement (Pty) Ltd v VHA Accounting Solutions and Another (16473/2022) [2023] ZAKZPHC 111 (17 October 2023)
IN THE HIGH COURT OF
SOUTH AFRICA
KWAZULU NATAL
DIVISION, PIETERMARITZBURG
CASE NUMBER:
16473/2022
In the matter between:
BRIDGEMENT (PTY)
LTD
PLAINTIFF
And
VHA ACOUNTING
SOLUTIONS
FIRST DEFENDANT
VIDYANTH
BHOLA
SECOND DEFENDANT
JUDGMENT
P
C BEZUIDENHOUT J
:
[1]
Defendants filed their heads of argument the day before the hearing
of the said application
but together with it filed an application for
condonation for the late filing of the heads of argument. This
was not opposed
by Plaintiff and accordingly condonation was
granted.
[2]
The claims result from various loans made by Plaintiff to First
Defendant. Second
Defendant was the surety in respect of each
of these loans. It is contended by Plaintiff that in respect of
the these loans
there are certain amounts which are still owing
although certain payments were made and accordingly it claims the
amount of R 141
390.21 in respect of claim A, R 668 478.92 in respect
of claim B, R 2 999.98 in respect of claim C, R 11 161.25 in respect
of claim
D and R 193 636.29 in respect of claim E together with
interest at 7% per annum on the outstanding amounts together with
costs
of suit.
[3]
The defence raised by Defendants is that such amounts are not owing.
It has
admitted that the said agreements were entered into and that
First Defendant received the money. It is however contended in
their plea that all amounts were repaid and in their opposing
affidavit that only an amount of R 267 277.31 is still owing but
that
it is not payable at this stage. The only issue between the
parties accordingly appear to be the amount which is owing
in respect
of the said loans.
[4]
In respect of each of the said loans Plaintiff has attached a
statement of account
setting out what amounts were paid and over what
period this occurred. The agreements in respect of each of the
loans is
also attached to the summons together with a certificate of
indebtedness in respect of each of the said loans which in terms of
the agreement in paragraph 5 shall be proof of the amount that is
owing for the purposes of summary judgment or any other proceedings.
The agreements are exactly the same in respect of each of the loans
that were granted.
[5]
It is submitted on behalf of Plaintiff that in Defendants plea in
respect of the claims
it admits that it borrowed the said amount but
denies that there is any amount owing to Plaintiff as it has paid all
the said amounts.
In claim B it denies Plaintiff was entitled
to finance costs but that the full capital amount together with
interest at the legal
rate was repaid. Accordingly in terms of
its plea it is contended that the full amount of the loans have been
repaid to Plaintiff.
[6]
However in the answering affidavit filed on behalf of First and
Second Defendants
it is admitted that a total sum of R 911 000.00 was
borrowed from Plaintiff in respect of the loan accounts but that the
indebtedness
at this stage is only the sum of R 267 277.31 which is
not due and payable. It is contended that an amount R 678
383.94 has
been paid to Plaintiff in respect of the loans.
There is therefore at this stage nothing payable. Attached to
the affidavit
is a summary of the alleged payments in respect of each
of the loans totaling R 911 000.00. The interest that was
payable,
and all the payments made which is the sum of R 267 277.31
which then leaves a balance of R 678 383.94. This schedule is
totally different to that which is set out in the affidavit as having
being paid. Further it is contrary to what is set out
in the
plea where it specifically states that there is nothing due owing and
payable, as all has been repaid.
[7]
It is submitted that it is not only these contradictions referred to
above but that
Defendants failed to set out in their affidavit or
plea what the terms of the agreement are which they denied. It
was accordingly
merely bold, vague and sketchy averments and did not
show any
bona fide
defence. It was submitted that the
defence was a sham, that there was no
bona fide
defence and
due to the errors between the opposing affidavit, the plea and the
reconciliation schedule that was attached that there
are so many
errors that it can only be construed as a sham and therefore not a
bona fide
defence.
[8]
It was submitted on behalf of Defendants that it sufficient if a
defendant swears
to a defence valid in law in a manner which is not
inherently and seriously unconvincing. It is submitted that the
matter
should go to trial as there is a dispute whether Defendants
are in arears with the repayments of the loans or not. It was
submitted that Defendants are not required to persuade the Court of
the correctness of the facts stated by them or where facts
are in
dispute that there is a preponderance of probability in their
favour. Plaintiff has to satisfy the Court that Defendant
has
no defence on the merits and not as before where that Defendants had
to show Defendant had no
bona fide
defence. A full
defence has been raised and Defendants have set out what is owing in
terms of the loan agreements.
It would be prejudicial to
Defendants to be denied an opportunity to have their defence properly
tested in trial proceedings if
summary judgment is now granted.
[9]
The relevant portions of Rule 32 dealing with summary judgment
are as follows:
“
Rule
32
(2)
(a)
within fifteen (15)
days after the date of delivery of the plea, the plaintiff shall
deliver a notice of application for summary
judgment, together with
an affidavit made by the plaintiff or by any other person who can
swear positively to the facts.
(b)
the plaintiff shall, in
the affidavit referred to in sub-rule (2)(a) verify the cause of
action and the amount, if any claimed,
and identify any point of law
relied upon and the facts upon which the claim is based and explain
briefly why the defence as pleaded
does not raise any issue for
trial.
(3)
The defendant may;
(a)
give security to the
plaintiff to the satisfaction of the court hearing judgment including
costs which may be given or
(b)
satisfy the court by
affidavit (which shall be delivered five (5) days before the day on
which the application is to be heard),
or with the leave of the court
by oral evidence of such defendant or any other person who can swear
positively to the fact that
the
defendant
has a
bona
fide
defence
to the action, such affidavit or evidence shall disclose fully the
nature and grounds of the defence and the materials factors
relied
upon therefore.” (my underlying)
Just as in the previous
Rule 32 Defendant must show it has a
bona fide
defence.
[10]
In Breitenbach v Fiat South Africa Edms Bpk
1976 (2) SA 226
(TPD)
referring to the previous Rule 32(3)(b) it held that the defendant in
the opposing affidavit must show he/she has a
bona fide
defence to the action and such affidavit or evidence shall disclose
fully the nature and grounds of the defence and peculiar facts
relied
upon therefore. In the present Rule 32(3)(b) it still states
that the defendant must show that he or she has a
bona fide
defence to the action.
[11]
In Breitenbach it was held that if the defence is averred in a manner
which appears in the circumstances
to be bold, vague or sketchy it
would constitute material for the court to consider in relation to
the requirements of
bona fide’s
. It further sets
out that the discretion that has to be exercised should be based on
material before the court. At
230 F it held:
“
The
court
a quo
dealt crisply with the problem before it in these terms: ‘the
applicant (as the plaintiff) has set out very fully the nature
of his
claim in the particulars of claim. The defendant (as
Respondent) in opposing the application for summary judgment
has
alleged in very vague terms that he has in fact paid whatever he owes
to the plaintiff. The facts referred to in the respondent’s
affidavit are so vague that the court is not in a position to
ascertain whether the respondent has in fact a
bona
fide
defence as
alleged. In these circumstances the plaintiff is entitled to
summary judgment.”
[12]
In Maharaj v Barclays National Bank Ltd
1976 (1) SA 418
AD it was
held at 425 that the defendant must show that he has a
bona fide
defence to the action. It further held at 426 B that the
defendant had to show that the defence was
bona fide
and good
in law. It continued at 426 E that the defendant is not
expected to formulate its opposition to the claim with the
precision
that would be required of a plea nor does the court examine it by the
standards of pleadings.
[13]
In the present Rule 32 application for summary judgment can only be
made after a plea has been
filed. Accordingly the portion in
the judgment in Maharaj to which I have just referred where the
precision of a plea is
not required can accordingly no longer, in my
view, be applicable. The precision of a plea is now vital in
assessing summary
judgment because it is in terms of what is stated
in the plea that the court has to exercise its discretion whether to
grant summary
judgment or not. One would expect the correct
defence to be pleaded and to be done in detail.
[14]
I was referred by counsel for Defendants to the matter of Standard
Bank of South Africa v Rahme
and Another 2019 (ZADPJHC287) (3
September 2019) where it was held in paragraph 8:
“
Other
than the procedural change, the amended Rule appears to raise the bar
and onus for securing summary judgment. By implication
the
plaintiff must satisfy the court that the defendant has no defence on
the merits when under the old Rule it was enough to show
defendant
lacks a
bona fide
defence. On this call because of the change of onus as well as
other grounds dealt with below I depart from Grant AJ’s
conclusion that the retrospective application does not impair
substantive rights of obligations of powers.”
[15]
I was referred by counsel for Plaintiff to the matter of Tumileng
Trading CC v National Security
and Fire (Pty) Ltd
2026 SA 624
(WCC).
In paragraph 13 it was held:
“
That
means that the test remains what it always was, has the defendant
disclosed a
bona
fide
(i.e. in
apparently genuinely advanced as distinct from sham) defence.
There is no indication in the amended Rule that the
method of
determining that has changed. The classical formulation in
Maharaj and Breitenbach v Fiat as to what is expected
of a defendant
seeking to successfully oppose an application for summary judgment
therefore remain of application. Defendant
is not required to
show that its defence is likely to prevail. If a defendant can
show that it has a legally recognisable
defence on the face of it,
and that the defence is genuine or
bona
fide
summary
judgment must be refused. The defendants’ prospects of
success are irrelevant.”
[16]
I have considered both these judgments and the previous Rule 32 and
the amended Rule 32.
I am not in agreement with the judgment in
the matter of Standard Bank v Rahme as I can find no basis why it is
found that the
bar and onus for securing summary judgment has been
raised. I am in agreement with the judgment in the matter of
Tumileng
Traidings CC v National Security and Fire (Pty) Ltd that the
test remains as it always was in the case of Breitenbach and
Maharaj.
This, in my view, is further fortified by the fact
that both in the previous Rule 32 and the present Rule 32 it refers
to “
bona fide’s”
. It still requires
that Defendant must prove a
bona fide
defence to the action.
In my view there is accordingly no raising the of the bar on
Plaintiff but the test remains as it
always was except that the plea
must now be considered where previously there was no plea but merely
the opposing affidavit.
Further the requirement of the decision
in Maharaj v Barclays Bank that the affidavit need not be as precise
as the plea as set
out above cannot, at this stage, be the standard
because a plea has to be filed and it is on the basis of that plea
that the application
for summary judgment is brought that Plaintiff
then sets out the basis upon which it contests what is set out in the
plea and at
the end of the day on which the Court has to exercise its
discretion. In my view the present Rule 32 in actual fact
requires
a plea that is well drafted and not merely an affidavit as
before.
[17]
In the present matter in the plea that was filed by Defendants, they
refer to each of the agreements
admitting that the agreements were
entered into but in each of them stating that no amount is owing and
that all of the amounts
have been paid in full. This is done by
way of a bare statement. It does not set out when the said
payments were made,
how they were made and the basis upon which it is
contended that the full amount has been repaid. The plea is
accordingly
vague and is not a full disclosure to Court. If the
amounts were paid in full then it should have been very easy for
Defendants
to provide the information in that regard.
[18]
This issue is however further complicated by the fact that in the
opposing affidavit it is contended
that an amount of R267 277.31 is
due to Plaintiff but is not payable at this stage. It also does
not provide detail as to
when payments were made etc. However a
schedule of payments is attached not indicating when it was paid but
merely the totals
where it sets out that an amount of R 668 478.92 is
due to Plaintiff. Accordingly the versions which are presented
by Defendants
are bold and unsubstantiated but further contains
contradictions between the plea and the affidavit and the schedule
attached to
the affidavit. In my view a consideration of these
factors does not disclose that there has been a full disclosure by
Defendants.
It does not indicate
bona fide’s
and
accordingly Defendants have failed to indicate that they indeed have
a
bona fide
defence sustainable in law to Plaintiff’s
claim.
Order:
I accordingly grant
summary judgment against First and Second Defendants jointly and
severally the one paying the other to be absolved
in terms of
paragraphs 1, 2, 3, 4, 5, 6 and 7 of the notice of application for
summary judgment.
P
C BEZUIDENHOUT J.
JUDGMENT
RESERVED:
12
OCTOBER 2023
JUDGMENT
HANDED DOWN:
17
OCTOBER 2023
COUNSEL
FOR PLAINTIFF:
L
W TEMLETT
Instructed
by:
Blignaut
Neerahoo Attorneys
Alberton
Tel:
011 724 0002
Ref:
BRI18/0028
Email:
SteveP@bniattorneys.co.za
c/o
Botha & Olivier Inc.
Pietermaritzburg
Tel:
033 342 7190
Ref:
Sanet Botha/cls/B.236
Email:
sanet.both@bando.co.za
cathys@bando.co.za
COUNSEL
FOR DEFENDANTS:
J
P PRETRORIUS
Instructed
by:
Sangham
Incorporated
Pietermaritzburg
Tel:
033 0394 1807
Ref:
NIS/SM/V208
Email:
sanham@law.co.za