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[2022] ZAFSHC 249
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ABSA Bank Ltd v BCF Micro Finance 1(Pty) Ltd and Others (3522/2019) [2022] ZAFSHC 249 (23 September 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
Case
number: 3522/2019
Reportable:
YES/NO
Of
Interest to other Judges: YES/NO
Circulate
to Magistrates: YES/NO
In
the matter between:
ABSA
BANK
LTD
Plaintiff
and
BCF
MICRO FINANCE 1 (PTY) LTD
1
st
Defendant
BCF
MICRO FINANCE 7 (PTY) LTD
2
nd
Defendant
BCF
MICRO FINANCE 4 (PTY) LTD
3
rd
Defendant
BCF
MICRO FINANCE 2 (PTY) LTD
4
th
Defendant
BCF
MICRO FINANCE 5 (PTY) LTD
5
th
Defendant
BCF
MICRO FINANCE 8 (PTY) LTD
6
th
Defendant
THEA
VAN VUUREN
7
th
Defendant
MARTHINUS
JOHANNES ELS
8
th
Defendant
PAUL
HENDRIK ZIETSMAN
9
th
Defendant
MARTHINUS
JOHANNES ELS N.O.
10
th
Defendant
JANETHA
ELIZABETH ELS N.O.
11
th
Defendant
GERALDINE
CHRISSIE POTGIETER N.O.
12
th
Defendant
PAUL
HENDRIK ZIETSMAN N.O.
13
th
Defendant
MARTHINUS
JOHANNES ELS N.O.
14
th
Defendant
JANETHA
ELIZABETH ELS N.O.
15
th
Defendant
CHARLES
GEORGE FRIEDRICH KROHN N.O.
16
th
Defendant
MARTHINUS
JOHANNES ELS N.O.
17
th
Defendant
HEARD
ON:
29
JULY 2022
CORAM:
MATHEBULA,
J
DELIVERED
ON:
The
judgment was handed down electronically
by circulation to the
parties’ legal representatives by email and release to SAFLII
on 23 SEPTEMBER 2022. The date and time
for hand-down is deemed to be
23 SEPTEMBER 2022 at 14H30.
Introduction
[1]
The plaintiff, as a creditor, is suing the defendants as sureties,
under a written
deed of suretyship annexed to the particulars of
claim. On the first claim, the plaintiff advanced money to the
principal debtor
by way of overdraft facilities. The second claim
pertains to a surety mortgage bond registered over immovable property
known as
Erf [....] L[....], Bloemfontein.
[2]
The principal debtor is in liquidation. The defendants are various
companies, their
directors, trusts and trustees associated with the
principal debtor.
Pleadings
[3]
On the first claim, the plaintiff issued summons against the
defendants with the exclusion
of the seventh and ninth defendants,
jointly and severally, for payment of R13,863,565.03 with interest
thereon calculated at 10.25%
per annum from 2 April 2019 and costs on
attorney and client scale. Under the same claim they are sued as
sureties for the limited
amount of R1,584,000.00 together with
interest and costs on the same scale. The second claim is for payment
of the sum of R1,889,581.53
against all defendants, jointly and
severally, together with interest at the rate and date as the first
claim and the scale of
costs. It is common cause that the defendants
have defended the matter against them and filed a special plea and
pleaded over.
The special plea raises the defence of prescription.
The other defence insofar as the second claim is concerned, is that
the amount
of money owed has been settled in full.
[4]
The court will outline briefly
the allegations as averred in the particulars of claim and
plea.
Plainly the plaintiff relies on the deed of suretyship and mortgage
loan agreement. It is further alleged that the plaintiff
complied
with its obligations in terms of the agreements. Therefore, the
principal debtor is indebted to the plaintiff in the amount
set out
in the certificate of balance. As a result, the amounts due are owed
by the defendants in terms of the respective suretyships.
[5]
On the other hand the defendants raise the defence of prescription to
claim. The defendants
aver that the payments were due and payable on
1 October 2014 alternatively on 27 January 2015. Summons were served
against the
defendants on 12 August 2019 which is more than four (4)
years after the aforementioned dates. They also raise an issue
disputing
the amount owed in relation to the second claim. The
assertion is that it has been paid in full and nothing is outstanding
to sustain
the claim. It is trite that all defences available to the
principal debtor are also available to the sureties.
Duty
to begin and onus of proof
[6]
The parties could not agree on who carries the duty to begin leading
evidence. This
arose out of the defendants pleading a special defence
that the first claim has prescribed. The other defence raised on the
second
claim was that payment has been made. On these two (2)
defences, it is the defendants who are seeking a remedy. As the
parties
who are making allegations, the court after considering
submissions from both counsel ruled that the duty to begin rests on
the
defendants.
[7]
It is important to briefly discuss the underlying court decisions
that informed the
ruling made. The onus rests with a defendant who
relies on the special defence of prescription. An excellent starting
point would
be
Gericke v Sack
where the court said: -
“
That
submission is without substance; it overlooks the fact that it was
the respondent, not the appellant, who raised the question
of
prescription. It was the respondent who challenged the appellant on
the issue that the claim for damages was prescribed - this
he did by
way of a special plea five months after the plea on the merits had
been filed. The
onus
was
clearly on the respondent to establish this defence. He could not
succeed if he could not prove both the date of the inception
and the
date of the completion of the period of prescription”.
[1]
[8]
Also in
Macleod v Kweyiya
the Supreme Court of Appeal once
more considered the issue and quoted with approval the ratio in
Gericke v Sack
supra
. The correct approach was stated
in the following terms: -
“
This
court has repeatedly stated that a defendant bears the full
evidentiary burden to prove a plea of prescription, including the
date on which a plaintiff obtained actual or constructive knowledge
of the debt. The burden shifts to the plaintiff only if the
defendant
has established a prima facie case”.
[2]
[9]
The next point relied upon by the defendants was also decided in
favour of the plaintiff
by the court in the case of
Standard
Bank of South Africa Ltd v Oneanate Investments (Pty) Ltd
.
[3]
The court held that the onus rested with the defendant to prove the
payment it had pleaded.
Analysis
of evidence
[10]
At the hearing only one witness namely Thea Van Vuuren gave evidence
on behalf of the defendants.
She is the 7
th
Defendant and
was the director of the principal debtor involved in its day-to-day
running. During January 2015 the board of directors
decided to
liquidate the principal debtor. At the time the principal debtor
owned three (3) residential units at Morgan Heath,
Bloemfontein.
Other residential units belonged to different Trusts.
[11]
The principal debtor owned an immovable property in the suburb of
L[....], Bloemfontein.
A mortgage bond for approximately
R1,300,000.00 was registered over it. As a direct consequence of the
voluntary liquidation, the
Liquidators sold it sometime around June
2015. The total purchase price is unknown to her. Other properties
belonging to various
Trusts were also sold to pay off the overdraft
facility.
[12]
She confirmed that the plaintiff lodged a claim which was proved in
the insolvent estate. There
were other claims by different creditors.
According to her the insolvent estate has not been finalised by the
Liquidators. She
testified that she does not know the amounts the
immovable properties were sold for and what happened with the
proceeds thereof.
She could neither confirm nor deny whether the
plaintiff was paid or not. Evidently she could not dispute the
outstanding amounts
claimed by the plaintiff. Although her evidence
is credible, it does not support the two defences relied on by the
defendants.
[13]
The version of the plaintiff was narrated by two (2) witnesses being
Willem Adriaan Prinsloo
and Suné Smit. The evidence of the
former is that he is employed by the plaintiff as a manager of
interest calculations.
His ambit of work encompasses recalculation of
interest and amounts owing to the plaintiff. On this specific matter
he conducted
recalculations regarding the overdraft facility and the
mortgage loan account.
[14]
That he is an expert in his chosen field, remains unchallenged. He
explained the process of recalculations
making use of the transaction
history and statements which contains all debits, credits and
interest. These are migrated to Exel
spread sheets in order to
determine the outstanding balance due to the plaintiff.
[15]
He conducted the recalculations on the overdraft facility and the
outstanding balance as at 2
April 2019 they correspond with the
amount stated in the certificate of balance. The latter document is
annexed to the particulars
of claim. He also conducted an updated
recalculation until 29 June 2022. The total amount owing to the
plaintiff by the relevant
defendants was the sum of R17,140,569.67.
[16]
He undertook the same process on the mortgage loan account. Again he
confirmed that the outstanding
amount as at 2 April 2019 corresponds
with the figure on the certificate of balance annexed to the
particulars of claim. Further
recalculation ending 29 June 2022
revealed that the outstanding amount is R2,411,675.23. According to
the records at his disposal,
the last payment received on the account
was on 1 November 2014 in the amount of R12,019.66.
[17]
Suné Smit works in the insolvency department of the appointed
Liquidators to
wit
Honey Attorneys. She is closely associated
with the administration of the insolvent estate of the principal
debtor. She is aware
that the plaintiff lodged a claim which was
approved at the first meeting of creditors held on 6 May 2015. These
included the overdraft
facility and mortgage loan agreement. In total
the claim proved consisted of twelve (12) separate accounts.
[18]
When her testimony was probed further, she confirmed that the
immovable property situated in
L[....], Bloemfontein was sold on 15
September 2015 by the Liquidators. The mortgage bonds were not
cancelled in order to effect
transfer of the deed. Several dividends
were paid over to the plaintiff in the sums of R3,137,514.08,
R343,612.15 and R842 584.59
respectively. In turn, the plaintiff
paid in the shortfall of R95,828.83 on 25 March 2020.
[19]
She stated that it was the prerogative of the plaintiff to distribute
the amounts of money received
to various accounts in any manner
deemed appropriate. The Liquidators made no stipulation in that
regard. She stressed that the
mortgage bond stood surety for debt on
all other accounts.
[20]
The court turns to consider whether there is any merit in the special
defence of prescription
itself. In
Nedcor
Bank Ltd v Rundle
the
court held that only on confirmation of the final account that the
impediment ceases to exist.
[4]
In the heads of argument, counsel for the defendants, correctly
conceded that the plaintiff has proved that the claims were submitted
before prescription and that there was an impediment which
interrupted the running of prescription. The uncontested evidence of
Suné Smit is to the effect that the final account has not been
confirmed. In essence the issue pertaining to prescription
is no
longer a live controversy between the parties.
[21]
The defendants do raise other miscellaneous issues like the
correctness of the outstanding amount
as per calculations presented
by Willem Adriaan Prinsloo. Regrettably their protestations are not
backed up by contrary evidence.
The plaintiff is relying on the
certificate of balance which is supported by evidence. This leaves
the defendants with one arguable
point in order to escape any
liability substantially pertaining to the second claim. It is their
insistence that full payment was
made from the proceeds of the sale
of the immovable property. According to them, the plaintiff could not
have agreed to the cancellation
of the mortgage bond covering the
immovable property unless the full outstanding amount was received.
This argument is found on
fallacious ground and must fail.
[22]
It is an undeniable fact that the defendants owed the plaintiff not
only huge amounts but on
different accounts too. Therefore, payment
that is not in full and final settlement of the debt owed, can be
allocated by the plaintiff
as it deems fit. In the instant matter the
plaintiff allocated it to other accounts. It does not come to the
assistance of the
defendant that the proceeds should have paid the
mortgage bond and extinguished it. It was allocated to other
accounts. The other
reason why this argument must fail is because it
was a continuing mortgage bond. It stood surety of debts from any
cause whatsoever.
Costs
[23]
For the aforegoing reasons, it is the considered opinion of this
court that the plaintiff has
established that the defendants are
indebted to in the amount set out in the particulars of claim. The
defendants, as the losing
parties must pay the costs on the scale
provided for in the written agreements.
Order
[24]
The following order is made: -
24.1.
a)
Claim 1 against the first to
sixth, eighth and tenth to seventeenth defendants
(i)
The defendants must pay to the plaintiff
the sum of R13,863,565.03, jointly and severally, the one paying the
others to be absolved
together with interest on the aforesaid amount
at the rate of 10,25% capitalized monthly from 2 April 2019 to date
of final payment.
(ii)
Costs on attorney and client scale.
b)
Claim
1 against seventh and ninth defendants
(iii)
The defendants must pay the plaintiff
the amount of R1,584,000.00, jointly and severally, the one paying
the other to be absolved
together with interest on the aforesaid
amount at the rate of 10.25% capitalized monthly from 2 April 2019 to
date of final payment.
(iv)
Costs on attorney and client scale
24.2.
Claim 2 against all defendants
(i)
The defendants must pay the plaintiff
the sum of R1,889,581.53, jointly and severally, the one paying the
others to be absolved
together with interest on the aforesaid amount
at the rate of 10.25% capitalized monthly from 2 April 2019 to date
of final payment.
(ii)
Costs on attorney and client scale.
M.A.
MATHEBULA, J
On
behalf of the Plaintiff:
Adv.
J. Els
Instructed
by:
Phatshoane
Henney Incorporated
BLOEMFONTEIN
On
behalf of the defendants:
Adv. A.P. Berry
Instructed
by:
H.J
Booysen Attorneys Incorporated
BLOEMFONTEIN
[1]
1978
(1) SA 821
(A) at 827H-828A.
[2]
2013
(6) SA 1
(SCA) at para 10.
[3]
1998 (1) SA 811 (SCA).
[4]
2008
(1) SA 415
(SCA) at para 11.