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[2023] ZAKZPHC 150
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Dolbey v Nedbank Limited (AR148/2022) [2023] ZAKZPHC 150 (24 November 2023)
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IN THE HIGH COURT OF
SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
Case No: AR148/2022
In the matter between:
LOUISE HELEN
DOLBEY
APPELLANT
and
NEDBANK LIMITED
RESPONDENT
ORDER
On
appeal from:
KwaZulu-Natal Division of
the High Court, Durban (Hadebe J sitting as a court of first
instance):
The appeal is dismissed
with costs.
JUDGMENT
Delivered on: 24 November
2023
Poyo Dlwati JP
(HENRIQUES and Z P NKOSI JJ concurring):
[1]
The issue for determination in this appeal is whether the trial court
erred and misdirected
itself when it found that the appellant had
attended the respondent's premises on 30 July 2014 and signed a
suretyship agreement
in favour of the respondent.
[1]
[2]
The undisputed facts in the matter were that Richard David Dolbey (Mr
Dolbey) was
married to the appellant during July 2014. He was a
director of Typically Midlands FLM (Pty) Ltd (the company) and also
one of
its shareholders. During 2014, the company entered into a loan
agreement with the respondent for an amount of R7.8 million. Ms Shoba
Kirpal was the respondent’s business manager who dealt with the
application for the loan agreement. Various suretyship agreements
were concluded in order to secure the respondent’s loan to the
company, one of which was with the appellant. At the time
that the
loan agreement was concluded, the appellant was the owner of Grantham
Farm, Balgowan, situated in Nottingham Road in the
KwaZulu-Natal
Midlands. The company went into business rescue in 2016 and as a
result, the respondent called up its security.
[3]
In its particulars of claim, the respondent pleaded as follows in
paragraph 10 relation
to the appellant: ‘On or about 30 July
2014 and at Durban, the second defendant executed a deed of
suretyship, limited to
an amount of R2 000 000, 00 in
respect of the obligations of the company’. A copy of the deed
of suretyship was
annexed to the respondent’s particulars of
claim and marked annexure “D”. The appellant’s
response to this
averment was a denial of these allegations. She
pleaded various alternatives to this denial which were not pursued
during the trial.
It became evident at the trial, during the
cross-examination of Ms Kirpal, that the appellant was denying that
the signature on
the deed of suretyship was hers. It was put to Ms
Kirpal that the appellant would deny that she was in Durban on 30
July 2014.
[4]
Ms Kirpal’s evidence with regard to the signing of the
suretyship agreement
was that the respondent required suretyships
from the directors and shareholders of the company after it advanced
the funds to
the company. However, because Mr Dolbey did not have any
assets or property in his name, it was agreed that his wife, the
appellant,
who had a property worth more than R2 million registered
in her name, could provide such security. She testified that the
appellant
signed the suretyship agreement in her presence and she
signed as a witness to the appellant’s signature. She
reiterated
that the documents was signed on 30 July 2014 at her
office which is situated at 9[…] B[…] F[…] Road
in Durban.
This, she did after she made the appellant aware what
document she was signing.
[5]
Mr Kirpal denied that the appellant could have signed the suretyship
agreement in
the process of signing other documents for Whysalls
Property CC (the CC). She conceded that the document was computer
generated
but that the relevant information was put in the system by
the respondent’s employees. She made it clear that Mr Dolbey
was
the one who was required to provide suretyship but because the
appellant was the one with some sort of asset, it was agreed that
she
would be the surety because of the property in her name.
[2]
She testified that she had no further dealings with the company’s
account once it was placed in business rescue.
[6]
Under cross-examination, she conceded that the document that the
document that the
appellant had signed was headed ‘incorporating
cession of claims’ but she explained that ‘suretyship’
was
handwritten at the top of the front page and later it had
‘litigant number and suretyship general’. She conceded
that
there were no claims as referred to in the heading on the
document that were listed. She also did not know if the appellant had
any claims from the entities listed therein. She was also asked if
the appellant had signed any register at her offices prior to
their
meeting and she answered in the positive, but no such document was
produced. Ms Kirpal, though, was adamant that the loan
would not have
been granted to the company if proper security in the form of a
surety was not in place.
[7]
Ms Kirpal was adamant that the appellant had signed the suretyship
agreement on 30
July 2014 in her office in Durban and in her
presence. She could not recollect if she had phoned the appellant in
2016 about the
suretyship agreement. That was the respondent’s
evidence in as far as it is relevant to the appeal before us. The
appellant
testified in defence of the claim. The gist of her evidence
was that she did not attend Ms Kirpal’s office on 30 July 2014
and therefore could not have signed the suretyship agreement.
[8]
The appellant testified that she was not involved in running the
company but assisted
Mr Dolbey with online banking and Pastel
proceeding. She testified that she only went to the respondent’s
office in May or
early June 2014 to obtain an online banking token
and for training on the online banking system for the company. She,
however,
was at work in N[…] Road on 30 July 2014 and did not
attend at the respondent’s offices. When an audit trail from
the Pastel accounting programme was produced at trial, purporting to
be evidence that she was at work, Mr Eades, who appeared for
the
respondent, objected to the production of that document on the basis
that it had not been proved. Ms Ploos van Amstel, on behalf
of the
appellant, indicated that a witness would be called to deal with the
document but that, eventually, did not happen. I will,
therefore, not
deal with that evidence as it was not placed properly before the
trial court.
[9]
The appellant testified that she, later in February 2015, attended at
the respondent’s
offices to sign documents in relation to the
CC. She conceded that Ms Kirpal did email her the suretyship
agreement in early 2016,
which she says was the first time when she
became aware that she had signed the suretyship agreement. This was
after she had mentioned
to Ms Kirpal that she was moving off the farm
as she had sold it. Ms Kirpal advised her that she should not have
sold the farm
as she had signed a suretyship agreement in favour of
the respondent and the farm was the security thereof. She confirmed
that
the property was registered in her name. It was during that
conversation that she requested Ms Kirpal to email her the suretyship
agreement, which she did but nothing further happened thereafter.
[10]
The appellant disputed that it was her signature in the suretyship
agreement or that it was explained
to her. She testified that the
document, being the suretyship agreement, was headed ‘incorporating
cession of claims’
and she could not have believed that it was
a suretyship agreement if the court found that she had signed it. She
also would not
have signed it as three entities had been listed as
principal debtors instead of one. She testified that she did not have
any claims
against or in favour of Nedbank nor did she cede those
claims. Under cross-examination, the appellant was asked a pertinent
question:
‘Is it your signature or is it not your signature?’
Her response was ‘It – I didn’t sign it at Nedbank
on 30 July’. She reiterated that she did not sign the document
on 30 July 2014 as she was not in Durban.
[11]
It became evident under cross-examination that the appellant was
abandoning her alternate defence
that if she was found to have signed
the document, then it was. She conceded that the property was
registered in her name in 2014
but she sold it in 2015 for about R3.5
million. She reiterated that Ms Kirpal emailed her the suretyship
agreement in 2016 but
she could not recall what she did after
receiving the document. She decided to wait and see what would
happen. She conceded that
she was in a meeting in March 2015 with Mr
Dolbey and Ms Kirpal where certain documents were signed for purposes
of buying a truck
for the CC. The truck was to be used to transport
vegetables for the company. That, in a nutshell, was the appellant’s
case.
[12]
It was on this evidence that the learned judge found in favour of the
respondent. She held as
follows in relation to the signing of the
suretyship agreement:
‘
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 by as improbable and not
reliable.’
[3]
[13]
Before us, the appellant submitted that the learned judge failed to
consider that the respondent
bore the onus when the execution and
authenticity of the suretyship agreement was put in issue, as it was
the party who was relying
on it. According to Ms Ploos van Amstel,
the respondent failed to discharge that onus, hence the learned judge
erred in accepting
the respondent’s version that the appellant
signed the suretyship agreement. She further submitted that the
learned judge
erred in accepting the respondent's version despite the
various shortcomings in Ms Kirpal’s evidence. Mr Eades, on
behalf
of the respondent, submitted that the only issue for
determination in the appeal was whether the trial court erred in
accepting
the respondent's version with regard to the appellant’s
signature on the suretyship agreement. He submitted that as this was
mostly a credibility finding by the trial court, the court of appeal
ought not to easily interfere with such finding.
[14]
The appellant seeks to overturn the findings of fact and assessment
of the credibility of the
witnesses by the trial court. It is trite
that an appellate court will not ordinarily interfere with a finding
of fact by a trial
judge.
[4]
This is because of a ‘recognition of the essential advantages
which the trial judge has had, as a consequence of which the
right of
the appellate court to come to its own conclusions on matters of
fact, free and unrestricted on legal theory, is necessarily
in
practice limited’.
[5]
Furthermore, in
Dhlumayo
,
it was held that
‘
Upon
the bare record the appellate court can seldom, if ever, be in as
good a position as the trial judge even to draw inferences
as to what
is the more probable from the conduct of particular persons whom he
has seen and whom the appellate court has not.’
[6]
Hence, the appellate
court will only reverse such findings where it is convinced that the
conclusion is wrong. If the appellate
court is left in doubt as to
the correctness of the conclusion, then it will uphold the
conclusion.
[15]
Reverting to the facts of this matter, the high water mark of Ms
Ploos van Amstel’s argument
on behalf of the appellant was that
relevant facts have been ignored in coming to the conclusion that the
trial court reached.
This was in relation to the fact that the
appellant disputed signing the suretyship agreement and that no
handwriting expert was
called by the respondent to confirm the
appellant’s handwriting. According to Ms Ploos van Amstel, the
respondent failed
to discharge the onus resting on it regarding the
authenticity of the agreement.
[16]
In my view, the trial court did not disregard any evidence presented
to it. It was alive to the
trite principles applicable to the
resolution of the factual disputes in civil proceedings. This is
evident from the reference
made to the well-known case of
Stellenbosch
Farmers’ Winery
.
[7]
I do not have to rehash those principles as they are trite. For
instance, the learned judge held that it was improbable that the
appellant would have done nothing after being informed that she was a
surety and just waited for the summons to be issued. She
found this
to be improbable if one had regard to the amount claimed.
[17]
The learned judge further found that the issue of the disputed
signature was not pertinently
raised in the plea but only during the
trial. Ms Ploos van Amstel’s response to this issue was that
the whole of the paragraph
relating to the appellant having signed a
suretyship agreement was disputed. This, unfortunately, does not
assist the appellant
if one has regard to her evidence. For instance,
she was asked as follows under cross-examination: ‘Is it your
signature
or is it not your signature?’ Her response was: ‘It
– I didn’t sign it at Nedbank on July’. Later
she
was asked: ‘You never signed that?’ and her response was
‘I didn’t sign it on 30 July …(intervention)’.
[18]
From the above one gets the impression that she might have signed it
-even though not on 30 July
2014. I, therefore, cannot fault the
learned judge’s credibility findings of the appellant on this
issue. What is also relevant
is the fact that she did not do anything
about her discovery of being a surety until the summons was issued.
More importantly,
she would have realised on receipt on receipt of
the email and the suretyship agreement that she did not sign the
document or it
was not her signature therein. But, as the evidence
has shown, she did not tell anyone until the trial that that was not
her signature
on that document. One wonders whether the dispute about
her signature was a last minute fabrication raise a defence as a
prudent
defendant would not have acted in this way.
[19]
The evidence relating to the audit trail was correctly not admitted
as the document was not correctly
proved. It did not have any
evidentiary weight in the proceedings. In any event, there was no
evidence that the appellant could
not have first gone to Durban to
sign the surety agreement and thereafter proceed to work. Even on
this aspect, I am not able to
fault the credibility findings of the
learned judge.
[20]
I also agree with the learned judge’s finding that the
appellant seemed to want to distance
herself from Mr Dolbey, yet the
evidence pointed otherwise. She could not explain why she would have
access to the company’s
bank account and even obtain a banking
token if she was not involved in its operations. She could not say
why Mr Dolbey had to
be in the meeting with Ms Kirpal in March 2015
when all that was to be discussed was the CC’s business. I,
therefore, do
not have any difficulties with the learned judge’s
conclusions on these credibility findings against the appellant. The
learned
judge had the advantage of seeing, hearing and appraising the
witnesses.
[8]
I am not persuaded
that her conclusions were wrong.
[9]
In my view, she had considered all the relevant facts before coming
to her conclusions.
[21]
Ms Kirpal might not have been accurate about the date of the meeting.
But this does not detract
from the fact that the respondent would not
have granted a loan to the company if there was no adequate security
in place. There
was no dispute that the property used as security was
registered in the appellant’s name at the time and it was worth
more
than R2 million. Therefore, the objective evidence ameliorates
Ms. Kirpal’s evidence.
[22]
Whilst Ms Ploos van Amstel took issue with the requirements of s 6 of
the General Law Amendment
Act 50 of 1956 regarding the suretyship
agreement, this was thoroughly addressed in the trial court’s
judgment, which conclusions
I agree with. What was really placed in
dispute in terms of the notice of appeal was the signature of the
appellant. The learned
judge believed the respondent’s
witnesses and was satisfied that their evidence was true and that the
appellant’s evidence
was false. I do not believe that in this
appeal we ought to be dealing with the validity of the suretyship
agreement or any other
issues not raised in the notice of appeal
other than whether the signature was that of the appellant, or not.
[23]
Accordingly, there is no merit in the grounds advanced on appeal and
the following order is granted:
The appeal is dismissed
with costs.
POYP DLWATI JP
HENRIQUES J
Z.P NKOSI J
APPEARANCES
Date
of Hearing:
20
October 2023
Date
of Judgment:
24
November 2023
Counsel
for Appellant:
Ms
Ploos van Amstel
Instructed
by:
Morris
Fuller Attorneys
Counsel
for First Respondent:
Mr
Eades
Instructed
by:
Shepstone
& Wylie Attorneys
[1]
Reported
on Saflii as
Nedbank
Limited v Dolbey and another
[2021] ZAKZDHC 22.
[2]
Appeal
record at 119, lines 1-5.
[3]
Trial
court’s judgment para 32.
[4]
R
v Dhlumayo and another
1948
(2) SA 677
(A) at 695.
[5]
Ibid
at 696.
[6]
Ibid at 698.
[7]
Stellenbosch
Farmers’ Winery Group Ltd and another v Martell Et Cie and
others
2003 (1) SA 11
(SCA) at 14-15.
[8]
S v
Francis
1991
(1) SACR 198 (A).
[9]
S v
Mkohle
1990
(1) SACR 95
(A).