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[2021] ZAGPPHC 207
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Nedbank Limited v TIS Invest (Pty) Ltd and Others (44366/2020) [2021] ZAGPPHC 207 (9 April 2021)
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
REPUBLIC
OF SOUTH AFRICA
Case
Number: 44366/2020
NOT
REPORTABLE
In
the matter between:
NEDBANK
LIMITED
Plaintiff/Applicant
And
TIS
INVEST (PTY) LTD
First
Defendant/Respondent
TLADI
TSIE HOWARD MALEFANCE
Second
Defendant/Respondent
MAVIS
LEMAO MOTANG
Third
Defendant/Respondent
THABANE
SILAS MOLOKO
Fourth
Defendant/Respondent
TLADI
CONSULTING SERVICES CC
Fifth
Defendant/Respondent
MEDUPE
DISTRIBUTORS CC
Sixth
Defendant/Respondent
SAMO
ENGINEERING GROUP (PTY) LTD
Seventh Defendant/Respondent
JUDGMENT
JANSE VAN
NIEUWENHUIZEN J
[1]
The plaintiff prays for
summary judgment against the third, fourth, sixth and seventh
defendants (“the defendants”)
for payment of monies due
by the first defendant in terms of Instalment Sale Agreements, an
operating rental agreement and an overdraft
facility entered into
between the plaintiff and first defendant. The third, fourth, sixth
and seventh defendants are cited in their
capacities as sureties for
the amounts due by the first defendant.
DEFENCES
[2]
The defendants raised
various technical defences in their answering affidavits. Mr
Labuschagne, counsel for the defendants, to his
credit, indicated
that the defendants only rely on two defences, to wit:
[2.1]
liquidity; and
[2.2]
election and waiver.
Liquidity
[3]
The liquidity defence
was raised as a point
in
limine.
[4]
The point, in my view,
however, pertains to the merits of the summary judgment application
and is not capable of separate determination.
[5]
Rule 32(1) reads as
follows:
“
32(1)
The plaintiff may, after the defendant has delivered a plea, apply to
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
specified movable property; or
(d)
for ejectment;
together
with any claim for interest and costs.”
[6]
In proving the amount
due and owing by the defendants the plaintiff,
inter
alia¸
attached
certificates of balance to its particulars of claim.
[7]
The certificates are
issued in terms of the provisions of clause 6 of the suretyship
agreements, which clause reads as follows:
“
6.
The nature and amount of our obligation, as well as the interest
payable in respect
thereof, shall be determined and proved by a
certificate purporting to have been signed by a manager or accountant
for the time
being of any branch or the head office of Nedbank, whose
capacity or authority it will not be necessary to prove [or any other
form of evidence contemplated in
section 109(3)
of the
National
Credit Act, 2005
, if applicable]. This certificate or any other form
of evidence, as the case may be, will upon the mere production
thereof be binding
on us and be proof of the contents of such
certificate on the face of it and of the fact that such amount is due
and payable in
any legal proceedings against us, and will be valid as
a liquid document against us of its proving such claim.”
[8]
Mr Labuschagne
submitted that clause 6 is invalid as a rebuttal is not possible
and as such, the clause offends public policy.
In the result, the
plaintiff may not rely on the certificates and have thus failed to
prove the amount due and owing by the defendants.
[9]
It is trite that a
clause that provides that a certificate will be final instead of
prima facie
proof
of the amount due and owing is against public policy. [See:
Sasfin
(Pty) Ltd v Beukes
1989 (1) SA 1
(A).] The question to be decided is therefore, whether
the certificate referred to in clause 6 provides for
prima
facie
or final
proof.
[10]
Mr Labuschagne
submitted that the words “
on
the face of it”
with
reference to the certificate in clause 6 amounts to final proof.
In support of this contention, Mr Labuschagne relied
on the judgment
of Sutherland J in
Nedbank
Ltd v McGlashan and Others
(14713/2016)
ZAGPJHC 266 (4 August 2016) in which the learned Judge dealt with
clause 6
supra
in a similar worded
suretyship agreement of the plaintiff
.
Sutherland J, with reference to the unreported decision of Van der
Linde J in
Nedbank
Ltd v Binder SHGJ 1483/2011
delivered
on 7 April 2016, held at paragraph [21] as follows:
“
[21]
…..Clause 6 does not provide for prima facie proof. The use of
the phrase ‘on the face of it’
in the particular sentence
does not give rise to the meaning that there is ‘prima facie’
proof, but rather that the
contents of the certificate itself ‘on
the face of it’ are to be taken as proof. The source of the
error in the submission
is the assumption the words ‘prima
facie’ when translated into English mean ‘on the face of
it’. This in
incorrect. The words ‘on the face of it’
if one is obliged to use Latin, it is correctly translated as ‘ex
facie’
not prima facie. Prima facie means the first or
provisional view. ‘on the face of it’, or ex facie, means
exactly that,
on the face of it, it is so.”
[11]
Sutherland J held that
clause 6 prevents a defendant from challenging the amount due and
owing and is in the result against public
policy. Consequently, the
certificate of balance could not be introduced into evidence and the
amount due and owing had not been
established for the purposes of
summary judgment.
[12]
Mr Wessels, counsel for
the plaintiff, pointed out that the plaintiff does not rely solely on
the certificates of balance to prove
the amount due and owing by the
defendants. The plaintiff has also attached detailed bank statements
to the particulars of claim
as proof of the amounts that are due and
owing.
[13]
These bank statements,
according to Mr Wessels, qualify as “
a
liquidated amount in money”
and
comply with the liquidity requirement in
rule 32.
In this regard
the phrase “
a
liquidated amount in money”
was
defined in
Botha v W
Swanson & Company (Pty) Ltd
1968
(2) PH F85 CPD by Corbett J as follows:
“
[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.”
[14]
In order to determine
whether the amount is easily ascertainable, a court does not only
have regard to the summons, but also consider
the defence as
disclosed in the defendant’s opposing affidavit. [See:
Neves
Builders & Decorators v De la Cour
1985
(1) SA 540
C;
Tredoux
v Kellerman
2010
(1) SA 160
(C)]
[15]
Ex facie
to
the bank statements it is not difficult to calculate the amount due
and owing by the defendants.
[16]
The defendants in their
opposing affidavits merely denied that they owed the amounts claimed.
Although the bank statements are attached
to the particulars of
claim, the defendants did not point to a single entry that is
incorrectly recorded or otherwise difficult
to ascertain. Had the
defendants raised any problems with the calculation of the amounts
owing, the ascertainment of the amounts
could have proven to be
protracted and difficult.
[17]
In
casu
and
save for the bare denial, the calculations are not disputed. The
Supreme Court of Appeal has recently in
NGPS
Protection & Security Services CC v FirstRand Bank Ltd
2020
(1) SA 494
SCA emphasised that “
bald
averments and sketchy propositions”
are
not sufficient to stave off a summary judgment. [498I –499A]
[18]
In the result, I am
satisfied that the plaintiff’s claims are for liquidated
amounts in money.
Election and waiver
[19]
The defendants allege
that the plaintiff, on the date of breach of the agreements by the
first defendant, did not elect to cancel
the agreements but elected
to continue with the agreements. This choice was evidenced by the
fact that the plaintiff continued
to accept payment from the first
defendant in respect of the various agreements and facilities.
[20]
Once an election is
made it is final and irrevocable and a party may not thereafter
deviate from its election.
[21]
Due to the aforesaid
election, the plaintiff’s cause of action based on the breach
of the agreements and cancellation is thereof
not sustainable in law.
[22]
The defendants
furthermore contend that, once the plaintiff has expressly or tacitly
manifested an intention to abide despite the
alleged breach, the
right to cancel is waived on account of that particular breach.
[23]
Mr Wessels made two
submissions in answer to the above submissions on behalf of the first
defendant:
[23.1] firstly,
clause 5.5 of the standard terms and conditions of the agreements
states that: “
No indulgence or extension of time granted by
Nedbank to the Borrower must be deemed to be a waiver of any of
Nedbank’s rights”
; and
[23.2]
secondly and with reference to
Primat
Construction CC v Nelson Bay Metropolitan Municipality
2017
(5) SA 420
SCA, if it should be found that the plaintiff
notwithstanding the express wording of clause 5.5, elected at the
time to keep the
agreements intact, each subsequent breach creates a
new opportunity for the plaintiff to elect whether to abide by or to
cancel
the agreement.
[24]
The plaintiff alleges
in the particulars of claim, that the first defendant breached the
terms of the instalment sale agreements,
the operating rental
agreement and the overdraft facility because it “
...defaulted
in the punctual repayment of the instalments, alternatively
committed and act of
insolvency, alternatively resolved to commence business rescue
proceedings, further alternatively applied to
court for an order
commencing business rescue proceedings, and therefore is in breach of
the terms of the instalment agreements.
Kindly find attached hereto a
copy of the application to commence business rescue dated 17
September 2019 marked
Annexure
‘A5’
.”
[25]
The plaintiff further
alleges that the first defendant had defaulted with its repayments in
respect of the instalment sale agreements,
operating rental agreement
and overdraft facility and details the amounts due and payable as a
result of the aforesaid breach as
at 6 July 2020.
[26]
The plaintiff with
reference to each agreement alleges that it “
cancelled
the agreement due to the First Defendant alternatively hereby cancels
the agreement”.
[27]
When one has regard to
the bank statements, it is clear that the first defendant although it
made some payments after 19 September
2019, did not pay the monthly
instalments punctually. The breach of the instalment sale agreements
entitles the plaintiff to cancel
all other facilities and agreements
it has with the first defendant. [Clause 6.2.3.1].
[28]
In the result, the
first defendant committed further breaches after 19 September 2019,
entitling the plaintiff to cancel the agreements.
Conclusion
[29]
In view of the
aforesaid conclusions, the defendants have not set out any defence to
the plaintiff’s claim and the plaintiff
is entitled to summary
judgment.
Order
[30]
In the premises, I
grant the following order:
1.
Summary judgment is
granted in favour of the Plaintiff against the Third, Fourth, Sixth
and Seventh Defendants, jointly and severally
the one paying the
other to be absolved, as follows:
1.1
R86,427.77 (eighty-six
thousand four hundred and twenty-seven rand and seventy-seven cents)
plus interest on the aforementioned
amount at 8.25% per annum (prime
plus 1.25%), compounded daily and capitalised monthly from 12
December 2020 to date of final payment
(both days inclusive).
1.2
R75,236.94
(seventy-five thousand two hundred and thirty-six rand and
ninety-four cents) plus interest on the aforementioned amount
at 8.00% per annum (prime plus 1%), compounded daily and
capitalised monthly from 12 December 2020 to date of final payment
(both days inclusive).
1.3
R211,901.48 (two
hundred and eleven thousand nine hundred and one rand and forty-eight
cents) plus interest on the aforementioned
amount at 8.00% per annum
(prime plus 1%), compounded daily and capitalised monthly from 12
December 2020 to date of final payment
(both days inclusive).
1.4
R6,248,745.43 (six
million two hundred and forty-eight thousand seven hundred and forty
five rand and forty three cents) plus interest
on the aforementioned
amount at 17.50% per annum (prime plus 10.50%), compounded daily and
capitalised monthly from 12 December
2020 to date of final payment
(both days inclusive).
1.5
Costs of suit on an
attorney and client scale.
4.
The application for summary judgment against the First Defendant is
postponed
sine die
.
N. JANSE VAN
NIEUWENHUIZEN
JUDGE OF THE HIGH
COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
DATE
HEARD PER COVID19 DIRECTIVES:
17
March 2021
(Virtual hearing.)
DATE
DELIVERED PER COVID19 DIRECTIVES:
9 April 2021
APPEARANCES
Counsel
for the Applicant:
Advocate H.P. Wessels
Instructed
by:
VDT Attorneys Incorporated
Counsel for the Third,
Fourth, Sixth and
Seventh
Respondents:
Advocate F.J. Labuschagne and
Advocate A.K. Mabena
Instructed
by:
LP
Ngoepe Attorneys Incorporated