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[2021] ZAGPPHC 110
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Firstrand Bank Limited t/a Wesbank v Arm Development Programme and Another (86814/2018) [2021] ZAGPPHC 110 (18 February 2021)
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
(1)
REPORTABLE: NO
(2)
OF INTEREST TO OTHER
JUDGES: NO
DATE:
18-02- 2021
Case
Number.:
86814/2018
In
the matter between:
FIRSTRAND
BANK LTD T/A WESBANK
Applicant
and
ARM
DEVELOPMENT PROGRAMME
First Respondent
MORODU
ANDRIES
MOTSE
Second Respondent
JUDGMENT
KUBUSHI
J
This
judgement is handed down electronically by circulating to the
parties’ representatives by email and by uploading on
Caselines.
[1]
This is an opposed application for summary judgment which emanates
from an action instituted
against the first and the second
respondents for the alleged breach of a written loan agreement
entered into between the applicant
and the first respondent, in
respect of which the second respondent has purportedly bound himself
as surety thereto.
[2]
Uniform Rule 32 was amended with effect from 1 July 2019. Under the
amended Rule a plaintiff
must wait for the defendant to deliver a
plea before a plaintiff may institute summary judgment proceedings.
Therefore, in
terms of the said rule without a Plea having been filed
a Judge cannot entertain a summary judgement application.
[3]
However, in this instance I was informed that summons was issued on
30
November 2018, the notice of intention to defend was delivered on 29
January 2019, and the application for summary judgment was
delivered
on 19 February 2019.
Uniform
Rule 32 was only amended on 1 July 2019, after the plaintiff’s
application for summary judgment was delivered on 19
February 2019.
The Court in
Raumix
[1]
determined that
the amended Rule did not apply retrospectively in respect of pending
summary judgment applications. Therefore, the
application for summary
judgment, in this instance, having been initiated prior to 1 July
2019, it should be dealt with in terms
of the previous Rule 32.
[4]
The applicant has applied to court for summary judgment on the basis
that the respondents
do not have a bona fide defence to its claim.
The respondents, on the other hand, are opposing the summary judgment
application
on the ground that they have a
bona fide
defence.
[5]
In accordance with uniform rule 32 (3), upon hearing of an
application for summary judgment
the defendant may satisfy the court
by affidavit that she/he has a
bona fide
defence to the
action; such affidavit shall disclose fully, the nature and grounds
of the defence and the material facts relied
upon.
[6]
In this instance, the nature and grounds of the respondent's
bona
fide
defence to the applicant's claim are based on a counterclaim
raised by the first respondent. The second respondent denies being
indebted to the applicant on the basis of having been manipulated
into signing as surety for the debts of the first respondent.
[7]
Uniform Rule 32 (3) requires that the court be satisfied that the
respondent’s defence
as stated in his plea constitutes a
bona
fide
defence to the applicant's claim.
In
deciding whether the defendant has set out a
bona
fide
defence, all the court enquires, is whether on the facts so
disclosed, the defendant has disclosed the nature and grounds of
her/his
defence; and whether on the facts so disclosed the defendant
appears to have, as to either the whole or part of the claim, a
defence
which is
bona
fide
and good in law.
[2]
[8]
The defences raised by the respondent in this regard are, in my view,
bona fide
. The defences are valid and good in law and it is
clear that there is a possibility that if advanced, at trial, may
succeed.
[9]
On the basis of the aforesaid, the summary judgment application
cannot succeed.
[10]
In the circumstances I make the following order:
1.
The application for
summary judgment is dismissed;
2.
The respondent is
granted leave to defend the matter;
3.
Costs are costs in
the application.
E.M KUBUSHI
JUDGE OF THE HIGH COURT,
GAUTENG
DIVISION, PRETORIA
Appearance
:
Applicant’s
Counsel
: Adv. P M W Botha
Applicant’s
Attorneys
:
Brooks & Luyt Incorporated
Respondents
Counsel
:
Adv. D A De Kock
Respondents’
Attorneys
:
Van Rensburg Attorneys
Date
of hearing
: 30 October 2020
Date
of judgment
: 18 February 2021
[1]
Raumix Aggregates (Pty) Ltd v Richter Sand CC & Another and 8
other related matters
(
Case
Numbers: 2019/8153, 2018/37011, 2017/14846X, 2019/6412, 2019/12142,
2019/10245, 2019/14229, 2019/14870, 2019/7918)
[2]
Erasmus: Superior Court Practice 2ed Volume 2 pD1-411.