Nedbank Limited v Hattingh and Others (4136/2020) [2022] ZAFSHC 44 (7 March 2022)

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[2022] ZAFSHC 44
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Nedbank Limited v Hattingh and Others (4136/2020) [2022] ZAFSHC 44 (7 March 2022)

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
Reportable:
Of
Interest to other Judges:
Circulate
to Magistrates:
NO
NO
NO
Case
no:
4136/2020
In
the matter between:
NEDBANK
LIMITED
Plaintiff
(REG
NO:  1951/000009/06)
and
DANIËL
JOHAGEM JACOBUS
HATTINGH
1
st
Defendant
(ID
NO:  [….])
HENDRINA
JOHANNA
HATTINGH
2
nd
Defendant
(ID
NO:  [….])
OCTA
ENGINEERING (SA) (PTY)
LTD
3
rd
Defendant
(REG
NO:  1998/023574/07)
OCTA
HOPPERS (PTY)
LTD
4
th
Defendant
(REG
NO:  1998/015317/07)
CORAM:
JP
DAFFUE J
HEARD
ON:
03
MARCH 2022
DELIVERED
ON:
07 MARCH 2022
This
judgment was handed down electronically by circulation to the
parties’ representatives by email, and release to SAFLII.
The
date and time for hand-down is deemed to be 16:00 on 07 March 2022.
I
INTRODUCTION
[1]
This is a summary judgment application with a little bit of a twist.
A
point in limine
has been taken on behalf of the 4
th
defendant to the effect that the attestation of the founding
affidavit in support of the application for summary judgment lacks
compliance
with regulation 7(1) of the regulations published in terms
of the Justices of the Peace and Commissioners of Oaths Act
[1]
and is therefore a nullity.  Consequently, so it was submitted,
the application for summary judgment is a nullity and should
be
struck from the roll with costs.
II
THE PARTIES
[2]
The plaintiff in the main action and applicant in the application for
summary
judgment is Nedbank Ltd who has been represented by Adv CJ
Welgemoed, instructed by VDT Attorneys, Pretoria, c/o Phatshoane
Henney
Attorneys, Bloemfontein.
[3]
The 1
st
, 2
nd
and 3
rd
defendants do
not feature in the summary judgment application as default judgment
has already been granted against them.  Furthermore,
1
st
and 2
nd
defendants have been sequestrated recently and the
3
rd
defendant has been liquidated earlier.
[4]
Adv JF Mitchley appeared before me on behalf of the 4
th
defendant on the instructions of Peyper Lessing Attorneys,
Bloemfontein.
[5]
Henceforth I shall refer to the parties as the plaintiff and 4
th
defendant respectively.
[6]
The plaintiff has instituted action as long ago as 27 October 2020
and once
it has amended its particulars of claim, the 4
th
defendant filed its plea on 8 November 2021 and thus more than a year
after institution of action.
[7]
On 22 November 2021 the plaintiff filed its application for summary
judgment
which was set down for hearing on 20 January 2022.  The
4
th
defendant failed to file an answering affidavit in
accordance with the rules of court which necessitated not only a
postponement,
but an application for condonation. The required
documents were eventually filed on 28 January 2022.  On 20
January 2022 the
matter was postponed to the opposed roll of 3 March
2022.  The 4
th
defendant was ordered to pay the
wasted costs occasioned by the postponement.  I am satisfied
that condonation should be granted
and this will be reflected in the
order to be made.
III
POINT
IN LIMINE
:  THE ALLEGATION THAT THE FOUNDING
AFFIDAVIT LACKS COMPLIANCE WITH REGULATION 7(1) AND IS A NULLITY
[8]
Regulation 7(1) of the aforesaid regulations reads as follows: “
7(1)
A commissioner of oaths shall not administer an oath or affirmation
relating to a matter in which he has an interest.”
Ex
facie
the application for summary judgment the commissioner of
oaths is one Alexia Steensma of Velile Tinto & Associates, 942
Disselboom
Avenue, Pretoria.  She is an attorney and it is
accepted that Velile Tinto & Associates is a firm of attorneys
practising
in Pretoria.  The plaintiff’s attorneys of first
instance are VDT Attorneys Inc with offices situated at the corner of
Bronkhorst
& Dey Streets, Brooklyn, Pretoria.
[9]
No averment whatsoever is made in the answering affidavit of the 4
th
defendant that could have alerted either the plaintiff or the court
that the attestation was not in accordance with regulation 7(1).
[10]
An allegation in this regard was made for the first time on 25
February 2022, four
court days before the hearing, in Adv Mitchley’s
heads of argument on behalf of the 4
th
defendant.
Counsel deemed it fit to refer to attorney Steensma’s LinkedIn
profile, indicating that she is the HOD VAF in
respect of Nedbank
since May 2021.  The court was directed to the relevant website
and a copy of a screenshot of the relevant
page was also attached to
the heads of argument.  During the hearing it appeared to be
common cause that attorney Steensma is
in the employ of Velile Tinto
& Associates which firm is also on the plaintiff’s panel of
attorneys.  it should be common
cause that financial
institutions such as the plaintiff, as well as other big corporates,
do not make use of one firm of attorneys
only, but several firms who
are then placed on such entity’s panel of attorneys.
[11]
I quote the following from the 4
th
defendant’s heads of
argument:
“
[27]
The relationship between the deponent and the commissioner of oaths
(albeit that she does not work for the firm of
attorneys presently on
record), is one where clearly they have a personal association of
such a nature that the commissioner of oaths
is an attorney for the
Plaintiff in many other matters and on their litigation panel, and
thereby clearly has an interest in the
Plaintiff’s general business
and the success of their litigation.
[28]
In the circumstances the affidavit is a nullity, which nullity cannot
be condoned.”
The aforesaid point was
reiterated during counsel’s oral submissions, to wit that attorney
Steensma, being on plaintiff’s litigation
panel, has an interest in
the plaintiff’s general business and the success of their
litigation, and I have to accept, specifically
in respect of this
application.
[12]
The facts in this matter are clearly distinguishable from those that
Pickering J had
to deal with in
Radue
Weir Holdings Ltd t/a Weirs Cash & Carry v Galleus Investments CC
t/a Bargain Wholesalers, (Radue)
[2]
which judgment was recently followed in
Fransch
v Premier, Gauteng Province and Another.
[3]
In
Radue
the commissioner of
oaths not only shared the same business address as the attorneys for
the defendant in a summary judgment application,
but it was also
obvious that the commissioner of oaths was practising in association
with the defendant’s firm of attorneys.
[13]
Pickering J emphasised that the “
commissioner
of oaths who attests an affidavit is required to be impartial,
unbiased and entirely
independent
of the office where the affidavit is drawn
.”
[4]
(emphasis added).
On the facts of the matter the court held in
Radue
as follows
[5]
:
“
It
seems clear to me that by entering into an association the attorneys
have established some sort of formal relationship with each
other in
consequence whereof their respective offices are to some extent
connected. In my view the fact that the ambit of such relationship
might differ widely from case to case is not of importance in
the context of this case. What is of importance is that the
attorneys,
by entering into such association, have obviously agreed
that some mutual benefit in relation to the conduct of their
practices be
derived by each from their association. Were this not so
no purpose would be served thereby. By reason of that association it
can
therefore ordinarily be expected that each is concerned to
some extent with the interests of the other. That being so, it cannot
be said, in my view, that the office of the one attorney is entirely
independent of the office of the other or that the one attorney
is
completely impartial and unbiased in relation to the affairs of the
other.
Prima
facie
,
therefore, the requirement of complete independence is lacking. In
these circumstances an attorney practising in association
with
another attorney has an interest such as would preclude him or her
from functioning as a commissioner of oaths in respect of
an
affidavit drafted by the other attorney.”
[14]
Having found regulation 7(1) peremptory in nature, the court held in
Radue
,
notwithstanding this conclusion, that it could not close its eyes for
the version in the answering affidavit.  It held that
the
defendant had made out a
bona
fide
defence and it
was afforded an opportunity of putting its defence before the court
in a regular manner by having the affidavit re-attested
before a
competent commissioner of oaths.
[6]
[15]
When I asked the 4
th
defendant’s counsel whether it would not be appropriate to postpone
the application for summary judgment in order to have the founding
affidavit re-attested, should I find in her client’s favour on the
point raised, she submitted that the whole application for summary
should be regarded as a nullity and struck from the roll.  In
Radue
and the authorities relied upon the court mentioned the danger that
an unbiased and impartial commissioner may influence the deponent
in
regard to the subject matter of the affidavit.
[7]
[16]
The mere fact that the two firms of attorneys featuring herein may be
on the plaintiff’s panel
of attorneys, cannot be used in support of
a responsible submission that they are not functioning totally
independent from each other.
In fact, there can be no doubt
that they are completely independent from each other.  I cannot
see on what conceivable basis
could it be held that attorney Steensma
has an interest in the present litigation, or that she would want to,
or could have influenced
the deponent in regard to the issue at
hand.  Notwithstanding my request, the 4
th
defendant’s counsel could not provide me with any authorities in
support of her submissions.  The facts in
Radue
and
authorities relied upon are clearly distinguishable from the facts
in
casu
and consequently, I am not bound to follow any of these
judgments.
[17]
The 4
th
defendant’s purely technical defence is
therefore rejected, but even if I was in agreement with the
submission that regulation
7(1) was contravened, I would have
postponed the summary judgment application in order to allow the
plaintiff to have the affidavit
re-attested.  In my view, courts
should ensure that disputes are dealt with on their merits and
technical defences that merely
cause delay and nothing else should be
frowned upon and dismissed.
IV
DEFENCES ON THE MERITS
[18]
The 4
th
defendant raised the following defences on the
merits as is apparent from its plea:
18.1  It
“
and/or
its representative was not advised that they would be entering into
an unlimited and open-ended suretyship agreement, which
would apply
to all past and future debt”
[8]
18.2  It
or its representative
“
did
not generally understand or appreciate the risks, costs or
obligations under the proposed agreements”
and
therefore
“
entering
into the credit agreement made the defendants over- indebted”
and
“
the
loan agreement stand to be declared reckless.”
[9]
18.3
“
The
signatory
of
the surety agreement was not duly authorized to sign and bind the 4
th
defendant.”
[10]
18.4  In
respect of the amounts claimed, the
4
th
defendant
pleaded
that these amounts were not correctly calculated and the certificates
of balance attached to the particulars of claim were
not correct
since the plaintiff failed to allocate any payments received after
issuing of summons.
[11]
[19]
In the answering affidavit to the summary judgment application the
defences were raised
in the following terms:
19.1  The
plaintiff
is claiming amounts much less
than in the summons without amending the summons and without any
explanation.
19.2  The
amounts claimed are not liquidated and reference is made to the
difference between a letter of the
plaintiff’
s
attorneys dated 1 September 2021 and the latest certificate of
balance dated 10 November 2021.  At best for the 4
th
defendant, its counsel referred to a R7 difference in respect of the
loan account.
19.3 It is also alleged that more
monies may become available from the liquidation of the 3
rd
defendant and the administration of the insolvent estates of 1
st
and 2
nd
defendants who have now been sequestrated.
Therefore, further amounts may accrue to the plaintiff from any of
these estates.
19.4  The applicability of
the National Credit Act and non-compliance therewith were again
raised.
19.5  The 4
th
defendant has drawn attention in the answering affidavit to the
different signatures alleged to be that of the 1
st
defendant, Mr DJJ Hattingh (Mr Hattingh) on the various documents
attached to the particulars of claim.  I shall revert thereto
in
a moment.
[20]
It is apparent from the papers that the
4
th
defendant’
s
deponent became a director of the 4
th
defendant company on 1 May 2005 only.
[12]
[21]
The plaintiff pleaded that an unlimited suretyship agreement was
entered into by the
4
th
defendant, it duly represented by the 1
st
defendant.
[13]
The suretyship agreement is annexed as annexure “E4”.
[14]
[22]
Unlike in the case of the suretyship agreement of the 3
rd
defendant,
[15]
where the name of the 1
st
defendant was inserted on the attached extract of the minutes of a
meeting of the 3
rd
defendant resolving that it would enter into the suretyship
agreement, no such resolution is attached to annexure “E4”
pertaining
to the 4
th
defendant.  In fact, the name of the person signing the document
on behalf of the 4
th
defendant does not appear at all.  It must be remembered that it
is the plaintiff’s case in the particulars of claim that
the 1
st
defendant, Mr Hattingh, signed annexure “E4” on behalf of the 4
th
defendant.  This document was already signed as long ago as 11
February 1999, whilst annexure “E3” was signed on 20 July
2017.
One does not need to be a handwriting expert to see that there is a
clear difference between the two signatures.
Both these
signatures also clearly differ from the alleged signature of Mr
Hattingh on his personal deed of suretyship dated 9 September
1992.
[23]
The 4
th
defendant’s counsel wisely decided not to make
any submissions pertaining to non-compliance with the National Credit
Act and it
is not necessary to deal any further with the defences in
this regard.
[24]
The submissions pertaining to lack of integrity of the plaintiff’s
statements of
account and the certificates of balance are not
persuasive.  Clearly, the plaintiff has received payments,
bearing in mind the
liquidation of the 3
rd
defendant and
dividends received, since the issuing of summons which occurred more
than 14 months ago.  The criticism is unfounded
and there is no
reason not to accept the latest certificates of balance in respect of
the overdraft agreement as well as the loan
agreement.
[25]
In 2019 rule 32 was amended materially.  Sub-rule 2(b), for
example now reads
as follows:
“
(2)
(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
plaintiff’s claim is based, and explain briefly why the defence as
pleaded does not raise any issue for trial.”
Sub-rule 3 now reads as follows:
“
(3)
The defendant may—
(a)
…
(b)
satisfy
the court by affidavit (which shall be delivered five 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
of 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 material facts relied upon
therefor.”
(emphasis added)
[26]
I agree with the following
dictum
of Makgoka JA in
NPGS
Protection & Security Services CC and Another v Firstrand Bank
Ltd
[16]
(a minority judgment, but not overruled by the majority):
“
[14]
Indeed, the court would be remiss in its duties if such defences,
clearly devoid of any bona fides, stand
in the way of plaintiffs who
are entitled to relief. 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 applications for summary judgments is stated.”
[27]
The 4
th
defendant’s counsel confirmed during oral
argument that she was not party to the drafting of the plea and
answering affidavit.
In my view the legal practitioner who
consulted in order to draft the plea did not do his profession
proud.  I fail to understand
how it could be alleged that the
signatory of the suretyship was not authorised to sign and bind the
4
th
defendant and/or that the 4
th
defendant’s
representative was not advised that an unlimited and open suretyship
was entered into.  Clearly these allegations
were grabbed from
the air, bearing in mind that the suretyship agreement was allegedly
signed in 1999 and the 4
th
defendant’s deponent became
involved with the 4
th
defendant in 2005 only.  These
allegations are nothing but speculative and should be rejected.
I say this, bearing in
mind that when the 4
th
defendant
had the opportunity to obtain an affidavit in support of the
opposition of the summary judgment application to specifically
deal
with these allegations, it did not do so.
[28]
I would have expected the 4
th
defendant’s deponent to
not only disclose fully the nature and grounds of the various
defences, but also the material facts relied
upon therefore, in line
with sub-rule 32(3)(b).  It was possible for the 4
th
defendant to rely on an affidavit of any other person who could swear
positively to the facts, in particular Mr Hattingh, cited as
the 1
st
defendant.  The 4
th
defendant’s counsel submitted
that Mr Hattingh might perhaps not be interested in supporting the
4
th
defendant’s defence and therefore unwilling to
depose to an affidavit.  This is nothing, but speculative.
I would have
expected the legal practitioner who drafted the plea to
consult with either Mr Hattingh, or any of the other directors or
officials
of the 4
th
defendant at the time when the
suretyship was entered into, to wit February 1999 and if that was not
possible, to at least set out
full details of the attempts made in
this regard in the answering affidavit.
[29]
Having said this, I cannot close my eyes to the following:
29.1  The signature on the
instalment sale agreement, annexure “A” to the particulars of
claim.
[17]
It is the plaintiff’s case that Mr Hattingh, the 1
st
defendant, signed the document on 20 July 2015.
29.2  The same signature
appears on annexure “A” to the instalment sale agreement and on
the attached resolution,
[18]
as well as the attached declaration in respect of insurance.
[19]
29.3  Mr Hattingh’s
signature also appears on the special resolution for 3
rd
defendant to be voluntarily liquidated.
[20]
29.4  The same signature
pertaining to the banking facilities also appear on annexure “B”
to the particulars of claim.
[21]
No doubt it belongs to Mr Hattingh.
29.5  The same signature,
that of Mr Hattingh, appears on the loan agreement, annexure
“C”.
[22]
These documents were signed on 27 August 2019, save for the extract
of minutes which Mr Hattingh apparently signed on 20 May
2010.
[23]
29.6  Mr Hattingh’s
alleged signature on the suretyship agreement dated 9 September 1992
appears to be quite different from
the previous documents referred to
above.
[24]
However, I am not asked to adjudicate that aspect as default judgment
was granted against Mr Hattingh.
29.7  The suretyship of 3
rd
Defendant dated 20 July 2017 is attached as annexure “E3” to the
particulars of claim.
[25]
This document is clearly signed by Mr Hattingh as is evident from the
resolution attached to the suretyship. The signature is also
remarkably similar to the other signatures referred to above.
29.8  The alleged suretyship
agreement of the 4
th
defendant in favour of plaintiff dated 11 February 1999 is attached
as annexure “E4”.
[26]
It is not stated in the document who signed it on behalf of the 4
th
defendant and no resolution is attached to the suretyship.  The
signature, allegedly that of Mr Hattingh, differs vastly from
all
other signatures that could be ascribed to him as mentioned above.
[30]
When plaintiff brought the application for summary judgment it knew
that in terms of
the amended rule 32 it had the opportunity and also
the obligation to identify any point of law relied upon, the facts
upon which
the plaintiff’s claim is based and also to explain
briefly why the defence as pleaded does not raise any issue for
trial.
[31]
The plaintiff’s deponent tried to deal with the plea in para 17 of
the founding affidavit,
[27]
but she did not deal at all with the allegation in paragraph 8.7 of
the plea that the signatory was not duly authorised to sign and
bind
the 4
th
defendant.
[32]
Although the 4
th
defendant perhaps followed a shotgun
approach by relying on several speculative defences, the
documentation placed before me has
caused an uneasiness as to whether
Mr Hattingh signed annexure “E4”, and if so, whether the 4
th
defendant in actual fact authorised him to sign the suretyship
agreement in 1999 as the plaintiff alleges in its particulars of
claim.
[33]
Although I was on the verge of granting summary judgment, I am not
prepared to close
the doors of the court for the 4
th
defendant in the specific and unique circumstances of this case as
identified above.
[34]
Notwithstanding the conclusion arrived at herein, it is apposite to
make the following
observation.  I have not been persuaded by
the 4
th
defendant’s counsel that summary judgment should be refused merely
because of the fact that the plaintiff may receive a substantial
dividend from the insolvent estates of 1
st
and 2
nd
defendants and/or even a further dividend in the liquidation of the
3
rd
defendant.  Such possibilities can never stand in the way of the
plaintiff “
to
recover from the surety, to the full extent of this suretyship any
sums remaining owing thereafter.”
[28]
I, with respect, do not agree with the judgment in
Business
Partners Ltd v Towers and Another.
[29]
The learned judge did not rely on any authority for the conclusion
arrived at.  Fact of the matter is, any monies paid by the
principal debtor or any of the other sureties will eventually absolve
the 4
th
defendant from paying that amount or amounts, but it does not mean
that the plaintiff is not entitled to obtain summary judgment
for the
amount or amounts that are due at the stage when the application is
moved.
[35]
The court has a discretion pertaining to the award of costs.  I
am not prepared
to grant a costs order against the plaintiff at this
stage as I am of the view that it was fully entitled to move the
application
for summary judgment.  I have come to the assistance
of the 4
th
defendant only in so far as I have doubt as to
who actually signed the relevant suretyship agreement and whether
that person was
duly authorised by the 4
th
defendant to
act accordingly.  Therefore, it would be fair to both parties if
the costs of the application stand over for adjudication
at a later
stage and after hearing of evidence during the trial.
VII
ORDER
[36]
1.        The 4
th
defendant’s application for condonation pertaining to the late
filing of its answering affidavit
is condoned.
2.
The 4
th
defendant shall pay the costs of the condonation
application on an unopposed basis.
3.
The application for summary judgment is refused.
4.
Leave is granted to the 4
th
defendant (the respondent in
the application for summary judgment) to defend the action.
5.
The costs of the application for summary judgment is reserved
for
later adjudication.
JP
DAFFUE J
On behalf of
plaintiff:

Adv CJ Welgemoed
Instructed
by:
Phatshoane
Henney
BLOEMFONTEIN
On behalf of the 4
th
defendant:      Adv JF Mitchley
Instructed
by:
Peyper Lessing
Attorneys
BLOEMFONTEIN
[1]
16 of 1963
[2]
1998
(3) SA 677 (E)
[3]
2019
(1) SA 247
(GJ) at paras 4 - 6
[4]
Radue
at
681 F
[5]
Ibid
at
682D - G
[6]
Ibid
682 H - I
[7]
Ibid
680
E – 681 G
[8]
Paragraph
8.2 of the pleadings bundle p 206
[9]
Paragraphs
8.3 & 8.4 at p 207
[10]
Paragraph
8.7 at p 208
[11]
Paragraph
14.2 at p 210
[12]
See
COR 39 at p 68 of the application papers
[13]
Particulars of claim para
16.16
– 16.20 of the pleadings bundle at pp 30 & 31
[14]
Pleadings
bundle, pp 126 & 127
[15]
Annexure
“E3” of the pleadings bundle, pp 123 to 125
[16]
2020
(1) SA 494
(SCA) at para 14
[17]
See
para 4.1.4 of the particulars of claim pp 8, 38, 39, 45 & 46
[18]
Pleadings
bundle pp 47
[19]
At p
p
48 & 49 of the pleadings bundle
[20]
Pleadings
bundle pp 54 & 55
[21]
Pleadings
bundle pp 59 & 60
[22]
At pp 67, 72, 73, 74 & 75
[23]
Pleadings
bundle p 73
[24]
Annexure
“E1” at pp 118 & 119 of the pleadings bundle
[25]
Record
pp 123 - 125
[26]
Pleadings
bundle pp 126 & 127
[27]
Summary
Judgment application p 10
[28]
New
Port Finance Company (Pty) Ltd and Another v Nedbank Ltd;
Mostert
and Another v Nedbank Ltd
[2015] 2 All SA 1
(SCA) at para 12
[29]
(32325/2017)
[2018] ZAGPPHC 349 (1 March 2018)