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[2022] ZAFSHC 149
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Nedbank Limited v Retyre (Pty) Ltd (5032/2021) [2022] ZAFSHC 149 (14 June 2022)
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IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Case
number: 5032/2021
Reportable:
YES/NO
Of
Interest to other Judges: YES/NO
Circulate
to Magistrates: YES/NO
In
the matter between:
NEDBANK
LIMITED
Plaintiff
and
RETYRE(PTY)LTD
1
st
Defendant
JENDERS
INVESTMENTS(PTY)LTD
2
nd
Defendant
EBEN
VINCENT
BOTHA
3
rd
Defendant
HELENA
DORETHIA
BOTHA
4
th
Defendant
CORAM:
AFRICA, AJ
HEARD
ON:
26 MAY 2022
DELIVERED
ON:
This judgment was handed down
electronically by circulation to the parties' legal representatives
by email. The date and time for
hand-down is deemed to have been at
11h00 on 14 June 2022
JUDGMENT
INTRODUCTION
[1]
This is an application for summary
judgment. The Defendants opposes the application and has filed an
affidavit in support of their
opposition thereto.
BACKGROUND
[2]
According
to Plaintiff's particulars of claim, on or about 4 July 2016 and at
Bethlehem, the plaintiff
[1]
and
1st defendant
[2]
, concluded a
written loan agreement ("Loan Agreement")
On
or about 26 October 2018 at Bethlehem, the plaintiff, offered an
overdraft facility ("Overdraft Facility") to the 1st
defendant, which on 22 November 2018, the principal debtor, accepted
with the terms and conditions as contained in annexure "POC4".
The
Loan Agreement specifically provides that it would be paid from the
Overdraft Facility.
[3]
[3]
The
plaintiff agreed to advance the sum of R2 900 000.00 to the 1st
defendant in terms of the Loan
Agreement, together with Credit Life Assurance and Insurance over the
immovable property, bonded
to the plaintiff to secure the debt.
The
Loan Agreement was for a period of 120 months and was to be repaid in
monthly instalments. In the event that plaintiff failed
to pay any
instalments due in terms of the loan agreement and/or overdraft
facility agreements ("the agreements"), the
plaintiff would
inter alia,
have the right to, without prejudice to any other
rights or remedies available to it, cancel same.
[4]
The
agreements were subject to certain conditions, including that a
mortgage bond be registered in favour of the plaintiff over
the
properties as described.
[4]
[5]
Pursuant
to the conclusion of the Agreements, the 1st defendant caused
continuing covering mortgage bonds
[5]
,
to
be registered over the properties in favour of the plaintiff, wherein
the 1st defendant declared itself to be lawfully indebted
and bound
to the plaintiff, its successors in title or assigns.
[6]
The 2
nd
,
3rd,
and
4
th
defendants, on the 26
th
of April 2016 at Bethlehem, and on the 30th
of May 2015 at Mossel Bay, respectively,
executed unlimited deeds of suretyships in consideration of
indebtedness incurred by the
1
st
defendant to the plaintiff.
It
is common cause that the Loan Agreement would be paid from the
Overdraft Facility. Plaintiff states that the 1st defendant is
in
breach of the terms and conditions of the Agreements, as it has
failed to pay the monthly instalments due in terms of both accounts,
which breach is material.
[6]
Further, that 1st defendant and or defendants collectively, failed to
submit financial documents in terms of the Financial Intelligence
Centre Act ("FICA").
[7]
The defendants have filed and raised a
number of defences.
[8]
The
first contention raised is that plaintiff, belatedly seeks to adduce
evidence, embodied by Annexure "REF6"
[7]
,
that
it was entitled to suspend the Overdraft Facility because, the
defendants failed to submit financial documents in terms of
FICA,
which were required to review the Overdraft Facility"
[8]
[9]
Rule
32(1)
[9]
reads:
'The
Plaintiff may after the Defendant has delivered a plea, apply to the
court for summary judgment on each of such claims in the
summons as
is only:
a)
On a liquid document;
b)
For a liquidated amount in money;
c)
For delivery of the specified movable
property; and
d)
For ejectment." Rule 32 (2) reads:
(a)
: "Within 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
plaintiff or by any other person who can swear positively to the
facts.
(b)
: The plaintiff shall,
in
the affidavit referred to in subrule (2)(a), verify the
cause of action and the amount, if
any claimed. and identify any point of law
relied upon which the plaintiff's
claim is based, and explain briefly why the
defence as pleaded does not raise any
issue for trial.
(emphasis added)
(c)
: If the claim is founded on a liquid
document a copy of the document shall be annexed to such
affidavit..."
Rule
32 (4) reads:
"No
evidence may be adduced by the plaintiff otherwise than by the
affidavit
referred
to in subrule
(2) ... "(emphasis
added)
[10]
The
plaintiff argues that in the present case Annexure "REF6"
is attached to the
founding
affidavit. as is envisaged in subrule (4)
and therefore the argument raised by the defendants that Annexure
"REF6", may be ignored
[10]
by this court, is without merit. The plaintiff argues that it is
mindful that it must set out in its founding affidavit why it
is
entitled to summary judgment in terms of Rule 32 and is not permitted
to introduce further evidence, by way of the said affidavit.
[11]
In
support of that argument, the plaintiff referred this court to the
case of
Rossouw
v FirstRand Bank
Ltd
[11]
where the Supreme Court of Appeal, however, held:
"that
a certificate of balance handed up to court in summary judgment
proceedings perform a useful function and is not hit
by the
provisions of the subrule."
[12]
The plaintiff
argues
that
what the
bank
sought
to
do
in
the
Rossouw
matter
(supra)
was to hand up documents to show
compliance with the provisions of
section
129
of the
National Credit Act 34 of 2005
and that those documents
were not alluded to in either
the summons or the affidavit,
which is not the case in the present matter. Further, that Annexure
"RET6" in
casu,
is important in respect of the
defences raised in the defendant's plea. In this respect, plaintiff
is entitled to bring an application
for summary judgment on the basis
that a breach occurred at the instance of the defendants, as Annexure
"RET6" advised
the 1st defendant that it is in breach of
its facilities agreement(s) with the Bank and committed one or more
of the following
events of default:
"You
failed to submit annual financial statements, management accounts and
debtors list
.
You
failed to remedy same within the time period previously stipulated,
if any... We hereby notify you that
we intend taking the following
action: -
Suspend the availability of your facilities
for
a review of the current position should you fail to submit the annual
financial statements, management accounts and debtors
by 5 February
2021."
[13]
The plaintiff maintains that
it
is necessitated to attach Annexure "RET6" to its
founding affidavit to show that the defences raised are not
triable.
[14]
In
opposing this argument, counsel for the defendants submits
[12]
that apart from the fact that it is not evident that Annexure "RET6"
was received by the defendants, plaintiff is not
entitled to rely on
a breach of the Overdraft, that it did not plead. This is so since it
is plaintiffs
pleaded
case, that the defendants
are
called upon to meet
.
In this regard plaintiff carefully pleaded
the
terms that
might
trigger the defendants breach of the Overdraft in paragraph 13.8 of
the
particulars.
Further, that significantly, the failure to submit financial
documents
is
not among the breaches pleaded by plaintiff
.
That fact is especially pertinent, since the defendants formally
complained that plaintiff had originally framed the defendant's
liability in unreasonably vague terms. Plaintiff capitulated in that
complaint and delivered an amended set of particulars
[13]
to give sufficient specificity in respect of the defendants alleged
breach, and the breach in terms of Annexure "RET6"
at no
stage formed part of plaintiff's pleaded case (even in its amended
form).
[15]
To this end, even when specifically
requested by this court to show where the breach as alleged in terms
of Annexure "RET6"
was pleaded, counsel for plaintiff could
not direct this court thereto.
[16]
Counsel
for the defendants maintain that the argument that Annexure "RET6"
can be attached
either
to the summons or the founding affidavit
[14]
is
without merit because
subrule
(2){a) must be read in conjunction with subrule (2)(b), in
answering
the question whether or not Annexure "RET6" is admissible.
Subrule (2)(b) defines what permissible evidence is.
[15]
[17]
The defendants further maintain that,
the breach as pleaded by plaintiff, is defendants'
failure
to pay the monthly instalments
in
respect of the respective accounts and
not
defendants failure to submit financial documents.
Thus, attaching Annexure "RET6" to the founding affidavit
does not verify the cause of action as set out in the particulars
of
claim neither does it fall within the ambit of any of the other
permissible evidence, in terms of subrule (2)(b), which the
affidavit
must contain.
[18]
In the view of this court, the
defendants' reliance on the
Rossouw
case
in this instance is correct.
The certificate of balance, the court in
Rossouw
found did not amount to new
evidence, which would be inadmissible under
rule 32
(4). To the
extent that the certificate reflects the balance due as at date of
hearing, is merely an arithmetical calculation based
on the facts
already before court.
The
certificate of balance on its mere production is sufficient proof of
the amount due and owing, thus verifying the cause of action
and the
amount as claimed in the summons. It is the view of this court, as
argued on behalf of the defendants that Annexure "RET6"
as
attached to the founding affidavit, amounts to new evidence, which is
inadmissible.
[19]
A further defence raised by the
defendants is that the plaintiff in its founding affidavit also
belatedly relies upon clause 4.1
of the Overdraft, namely that the
Overdraft Facility is repayable on demand in Nedbank's
("plaintiff's") discretion.
That clause reads as follows:
"Oortrekkingsfasiliteite
is onderworpe aan hersiening en is op aanvraag in Nedbank se
diskresie
in oorstemming met gewone bankpraktyk
terugbetaalbaar."
[20]
Counsel for the defendants argued that
reliance on this clause is likewise misplaced, since this too, is not
plaintiff's pleaded
case. However, if plaintiff is entitled to rely
upon clause 4.1, such contractual discretion must be exercised
arbitrio boni viri,
namely
in a fair and reasonable manner, and in good faith.
[21]
The exercise of this discretion, in
suspending defendants' facilities, were communicated to the
defendants as per Annexure "RET6",
the receipt of which are
denied by the defendants. It is further argued by defendants that the
repayment of the Loan was inextricably
linked to the Overdraft
Facility and plaintiff exercised its discretion arbitrary and
capricious, more so in circumstances where
the defendants during
April 2021, made a payment of R1.845 million into the Overdraft
Facility, reducing the outstanding amount
to R70 701,41.
[22]
In
opposing this argument, plaintiff submits
[16]
that the Overdraft Facility is a demand facility, which in terms of
the agreement, can be suspended or cancelled or called up by
the
plaintiff
in
the event of non-compliance with any of the terms contained therein.
The plaintiff has a right to claim, at its discretion, the
full
amount outstanding, with interest, which became immediately due and
payable. In the circumstances, defendants have failed
to submit
financial documents in terms of the Financial Intelligence Centre
Act1
[17]
,
38
of 2001, which documents were required to review the Overdraft
Facility. Annexure "RET6" was addressed to 1st defendant
notifying same of the breach. As the breach or default was not
rectified, the Overdraft Facility limit, was subsequently suspended
on 9 February 2021, activating the deduction of excess fees. The
effect of the suspended Overdraft Facility, meant that there were
insufficient funds in the account, as the overdraft was withdrawn and
debit orders returned. Plaintiff submits that because there
was still
an amount of R70 701.00 outstanding, the default continued and excess
fees and interest is still payable on the outstanding
amount, until
the date of settlement.
[23]
The failure by 1
st
defendant to submit the FICA documents, triggered the
suspension of the overdraft facility, having the effect that
plaintiff
became entitled to charge excess fees and the full amount
outstanding becoming due and payable, upon the act of default.
Defendants
argue that Annexure "RET6" was never received,
as the address referred to on the letter is: Posbus [....], Grootbrak
[....]. First defendant's address on the face of
Loan
agreement
("RET4") is
President Boshofstraat [....],
Bethlehem.
Paragraph 16.3-16.4 of
(''RET4") reads:
"...
a notice served on either party to this Agreement will have been
properly served when it has been either delivered to
that party or
sent by registered mail to that last party's last known address. Any
notice between parties to this agreement shall
prima facie
be
deemed to have been delivered on the day of hand delivery thereof or
on the 4 (forth) day
after posting of a pre-paid registered
letter"
[24]
The chosen
domicilia
citandi et executandi,
in respect of
the
Overdraft ("RET5")
is President Boshofstraat [....].
Bethlehem,
whereas the address as
reflected on
("RET6") is
Posbus [....], Grootbrakrivier. [....].
Counsel for the defendants argue that the address on ("RET6")
is not the chosen
domicilium
and
even if one can deem delivery to have taken place after 4 days, the
notice ("RET6") is dated 3 February 2021, whereas
the time
period defendants is afforded to submit the FICA documents was until
5 February 2021. Therefore, in the absence of any
evidence in the
founding affidavit to show how ("RET6") was delivered
(received) by the defendant(s), the argument raised
by defendants in
this regard, is well founded.
[25]
The
defendants further pleaded
[18]
that plaintiff has without any legal cause or justification
unlawfully debited certain amounts
[19]
in purported "excess fees" when the defendants had not, on
the plaintiff's own version, exceeded the Overdraft Facility.
On the
8th
of
February 2021, the available credit "disappeared", yet the
bank continued to deduct the loan instalment of R36 3889.18
as can be
gleamed from (amongst other) items 231 and 249
[20]
,
in
addition to, excess fees, which according to the defendants were not
permissible,
as
the facility
was
not overdrawn. As a result of the facility being suspended, debit
orders in respect of the Loan account were dishonoured as
from 1
March 2021. To this extend, defendants referred this court to the
cases of
NBS
Boland Bank Ltd v One Berg River Drive
CC
and
Others; Deeb and another v Absa Ltd; Friedman v Standard Bank of SA
Ud
[21]
where
it was stated that:
"discretion
(to call up the overdraft facility) must be exercised in good faith
and in a reasonable manner-
arbitrio boni viri."
[26]
The
plaintiff correctly states
[22]
that
a claim cannot be regarded as one for a "liquidated amount in
money" unless it is based on an obligation to pay an
agreed sum
of money or is so expressed that the ascertainment
of
the amount is a 'mere matter of calculation'. The data upon which the
calculation is to be based must not contain room for uncertainty,
estimation or debate.
[27]
In
casu,
this court is confronted with the
submission as advanced by the defendants, that plaintiff's
calculation in arriving at the amount
due and owing leaves room for
uncertainty.
This
defence surely raises a triable issue.
[28]
The
prayer
[23]
seeking an order to
declare certain properties specially executable was not pursued by
plaintiff in this application or argument
and will this court not
address any issues which stem from it.
[29]
The defence of "inducement"
also do not warrant any further attention from this court, save to
say that the court agrees
with the submission made by plaintiff in
this regard, that the defendants in their plea have admitted to the
conclusion of the
contracts and the suretyship agreements and the
concomitant terms and conditions. This defence raised is without
merit.
[30]
This
court is mindful that the defendant(s) is not at this stage required
to persuade the court of the correctness of the facts
stated by it
or, where the facts are disputed, that there is a preponderance of
probabilities in its favour,
[24]
nor
does the court at this stage endeavour to weigh or decide disputed
factual issues or to determine whether or not there is a
balance of
probabilities in favour of
the
one
party
or
another.
[25]
The
court
merely
considers
whether
the
facts
alleged by the defendant(s) constitute a good defence in law and
whether the defence appears to be
bona
fide
[26]
.
In
order
to enable the court to do this, the court must be appraised of the
facts upon which the defendant(s) relies with sufficient
particularity and completeness as to be able to hold that if these
statements of fact are found at trial to be correct, judgment
should
be given for the defendant(s).
[27]
[31]
It is
the
considered view of this court that the
defences put
up
by
the defendants, are
bona
tide
and raises triable issues.
[32]
In the result the following order is
made:
[32.1]
The application for Summary Judgment is refused.
[32.2]
Leave is granted to the defendants to defend the action.
[32.3]
Costs shall be costs in the cause.
A.
AFRICA, AJ
APPEARANCES:
COUNSEL
FOR THE PLAINTIFF:
Adv.
Macakathi
Instructed
by:
R
Oosthuizen Attorneys
COUNSEL
FOR 1
st
to
4th DEFENDANTS:
Adv.
R Van der Merwe
Instructed
by:
Rauch
Gertenbach Inc
[1]
Represented by a duly authorised representative
[2]
Represented by the 3rd defendant
[3]
Annexure "POC2" to the POC, page 101
[4]
Erf 4277 Pretorius Street, Bethlehem, District Bethlehem, Province
Free Sate in extent 965 square meters held by Deed of Partition
T15366/1995; Erf 967 Reebok Street, in Municipality and Division
Mossel Bay, Province Western Cape, in extent 634 Bethlehem,
District
Bethlehem, province Free State in extent 955 Square meters held by
Deed of Partition T15366/1995.
[5]
NumberB000003410/2016; Number B 000017166/2016 and Number
B000017167/2016.
[6]
Paragraph 19 page 90 amended POC
[7]
Notice of Breach.
[8]
Paragraph 6 of defendants' affidavit opposing summary judgment
[9]
Uniform Rules of Court
[10]
Paragraph 17 of defendants Heads of Argument
[11]
2010 (6) SA 439
(SCA) at 454 A-C.
[12]
Paragraphs 8,9,10 of affidavit opposing summary judgment.
[13]
Paragraph 19 of that amended particulars purports to specify the
defendants alleged breach.
[14]
In support of summary judgment
[15]
"The plaintiff shall, in the affidavit referred to in subrule
(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 plaintiffs claim is based, and explain briefly
why the defence
as pleaded does not raise any issue for trial."
[16]
Paragraphs 28.5-28.13.
[17]
FICA.
[18]
Paragraph 23 of defendant's plea
[19]
Paragraphs 23.1-23.9.
[20]
Pages 171 and 172 of Index Bundle
[21]
1999 (4) SA 928
(SCA) at para 25
[22]
Paragraph 26 of the heads of argument
[23]
Paragraph 5 of POC.
[24]
Arend v Astra Furnishers (Pty) Ltd
1974 (1) SA 298
(C) at 303-4.
[25]
Maharaj v Barclays National Bank Ltd
1976 (1) SA 418
(A) at 426
[26]
Arend case supra.
[27]
Maharaj case supra