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2022
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[2022] ZAFSHC 224
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Nedbank Limited v Rinor Civils (Pty) Ltd and Others (5696/2021) [2022] ZAFSHC 224 (15 September 2022)
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Reportable:
YES/NO
Of
Interest to other Judges: YES/NO
Circulate
to Magistrates: YES/NO
Case
number: 5696/2021
In
the matter between:
NEDBANK
LIMITED
Plaintiff
and
RINOR
CIVILS (PTY)
LTD
First Defendant
RINOR
CIVILS AND TRENCHING CC
Second Defendant
GESINA
CATHARINA NOORDMAN
Third Defendant
MICHAEL
ADRIAAN NOORDMAN
Fourth Defendant
MICHAEL
ADRIAAN NOORDMAN N.O.
Fifth Defendant
HEARD
ON:
1 SEPTEMBER 2022
JUDGEMENT
BY:
LOUBSER, J
DELIVERED
ON:
15 SEPTEMBER 2022
[1]
The Plaintiff in this matter sued the First Defendant for payment of
R1 188 139.92
plus interest in terms of a facility
agreement it concluded with the First Defendant, for R222 041.72
plus interest in terms
of a first instalment agreement also concluded
and for R28 279.83 plus interest in terms of a second instalment
agreement
concluded. The Second to Fifth Defendants are sued together
with the First Defendant by virtue of deeds of suretyship they
provided
in favour of the Plaintiff for the repayment of all amounts
which the First Defendant may owe at any time to the Plaintiff. The
First Defendant is cited in his capacity as only trustee of the Kanor
Trust. Before the issue of summons, the Third Defendant has
passed
on, and she is no longer a defendant in the proceedings.
[2]
On 23 February 2022 the First,
Second, Fourth and Fifth Defendants filed a Plea in response
to the
Plaintiff’s Summons, in which they denied liability for the
payment of the amounts claimed by the Plaintiff in respect
of all
three the agreements. Soon thereafter, on 16 March 2022, the
Plaintiff then filed an application for Summary Judgement in
terms of
Rule 32 of the Uniform Rules of Court. It is this application for
Summary Judgement that now stands to be decided by this
Court.
[3]
In their Plea, the Defendants firstly pleaded that the Plaintiff had
failed to apply
the correct rate of interest and that it had
capitalised the interest monthly without any agreement between the
parties to do so.
In the result, the amounts claimed have been
incorrectly calculated, it is pleaded. It is further pleaded that the
Defendants are
unable to reconcile the amounts due or to calculate
the amounts at the correct or agreed interest rates, as the Plaintiff
has elected
not to furnish them with the specified calculations when
it was requested to do so in a Rule 35(14) Notice.
[4]
In the second place, the Defendants pleaded that the facility
agreement on which the
Plaintiff had sued, was subsequently amended
by an addendum, and therefore they deny any liability in terms of the
original facility
agreement, as it was pleaded by the Plaintiff.
[5]
The pleadings and papers before the Court show that the original
facility agreement
on which the Plaintiff sued, was signed by the
Plaintiff and the First Defendant on 22 October 2019. In this
agreement, the borrower
facilities are stipulated as, firstly, a
temporary overdraft facility of R1 100 000.00, granted
until 25 February 2020,
at which date the facility reverts to
R650 000.00. Secondly, a vehicle and asset finance facility of
R400 244.00, which
facility includes existing vehicle-and-asset
finance agreements currently running down.
[6]
The addendum to this facility agreement was signed by the parties
some 5 months later.
In this addendum, the borrower facilities are
now stipulated to be a reducing overdraft facility of R1 100 000.00,
reducing
by R10 000.00 monthly until fully repaid or reduced to
R650 000.00, the first payment being due on 4 April 2020. It is
added that the reduction amount is reviewable every 6 months.
Notably, there is no mention of a vehicle and asset finance facility.
[7]
Now it is clear that the addendum amended the terms of the original
facility agreement,
although it is not altogether clear to what
extent. This uncertainty is probably due to the fact that the
Plaintiff has not referred
to the addendum in his summons in order to
explain the effect of the amendments, although the addendum is simply
attached to the
original facility agreement. All that is certain, is
that the Plaintiff relies on the terms of the original agreement in
its summons.
What is also certain, is that the two instalment
agreements are apparently referred to in the original agreement, but
not in the
addendum. Again, it is not clear what the effect thereof
would be.
[8]
At a first glance, there is much
to be said for the submissions made on behalf of the Plaintiff
at the
hearing of the application that the Defendants have not denied in
their Plea that they are owing money to the Plaintiff
which has
already become due and payable. They also do not say what amounts
they are then owing, according to their own calculations,
the
argument went.
[9]
Despite these submissions, this
Court has a certain uneasiness about the fact that the
Plaintiff is
suing on a document which has been amended some months later. The
amendment clearly had an effect on the terms of
the document. This
Court cannot rule out the possibility that the Plaintiff could decide
to amend his summons in this respect,
for instance. For the present,
at least, the Plaintiff is relying on a document which terms have
changed as far as the repayment
of the facility is concerned. To make
it worse, the amendments do not only affect the facility agreement,
but also the instalment
agreements.
[10]
In the application, the Plaintiff merely states
that the Defendants have failed to annex the Addendum which
they
allege to be in writing. This, notwithstanding the fact that the
Addendum was already annexed to the facility agreement by
the
Plaintiff itself in its Summons.
[11]
In my view, Summary Judgement should not be granted in the
circumstances, because there is clearly
a defect in the Plaintiff’s
cause of action. I find support for my view in this respect in the
decisions of
Transvaal
Spice Works and Butchery Requisites (Pty) Ltd v Conpen Holdings (Pty)
Ltd
[1]
and
Geyer
v Geyer’s Transport Services (Pty) Ltd
[2]
.
In these decisions it appear that if
ex
facie
the
document upon which the claim is found there appears a defect in the
cause of action, the court must refuse to enter summary
judgement
whether or not the defendant had filed an affidavit to oppose it.
[12]
In the premises, I make the following order:
1.
The application for summary judgement is
dismissed with
costs.
2.
The defendants are granted leave to defend
the main action, and all further steps in the proceedings must be
followed in terms of
the Uniform Rules of Court.
P.
J LOUBSER, J
For
the Plaintiff:
Adv. M. C. Louw
Instructed
by:
Hill, McHardy &
Herbst Inc.
Bloemfontein
For
the Defendants: Adv. H. J. van
der Merwe
Instructed
by:
Neuhoff Attorneys
Bloemfontein
[1]
1959
(2) SA 198
(W) at 200 A
[2]
1973
(1) SA 105
(T) at 107 H