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[2021] ZAGPPHC 247
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Standard Bank of SA Limited v Trumpie and Others (21321/2020) [2021] ZAGPPHC 247 (11 May 2021)
REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
GAUTENG DIVISION,
PRETORIA
21328/2020
NOT
REPORTABLE
NOT
OF INTEREST TO OTHER JUDGES
REVISED
In
the matter between:
THE
STANDARD BANL OF SOUTH AFRICA LIMITED
Applicant/Plaintiff
(REG. NO.:
1962/000738/06)
And
MICHIEL
JOHANNES
TRUMPIE
First
Respondent
I
First Defendant
ELAINE
TRUMPIE
Second
Respondent
I
Second Defendant
CECILIA
JOHANNA BOOYSEN
Third
Respondent
I
Third Defendant
Delivered.
This judgment was handed down electronically by circulation to
the parties' representatives by email. The date and time for hand
down is deemed to be 10h00 on 11 May 2021.
JUDGMENT
SKOSANA
AJ
[1]
The plaintiff seeks summary judgment against the first and second
defendants as well as judgment against the third defendant.
The
judgment sought is for the payment of a sum of R863 326,96 plus
interest thereon at the rate of 7,69% per annum from 06 February
2020
to date of payment as well as the costs of this application.
[2]
The application for summary judgment stems from the following
sequence of events:
2.1
The plaintiff issued summons in which it claimed that a written home
loan agreement was concluded between it and CJ Legal Costs
Consultants CC ('the principal debtor') on 28 September
2007 in terms of which the plaintiff lent to the principal
debtor the
sum of R950 000,00. The claim against the defendants arises out
of a suretyship that they signed in respect of
the debt of the
principal debtor;
2.2
The written loan agreement provided that in the event of the
principal debtor. failing to observe or
perform the terms of the agreement or
commit an act of insolvency or fall into liquidation
then the
whole sum of the loan as well as the accrued interest
would become due and payable by the principal debtor
to the
plaintiff;
2.3
The loan was secured by means of a covering mortgage bond
hypothecating the property known as Erf
No. 3390 Marloth Park Holiday Township, registration
division J.U. Mpumalanga Province, in extend
1980 square meters held by deed
of transfer no. T334703/2007 in
favour
of the plaintiff;
2.4
The principal debtor not only failed to make due payments but it
was also placed under liquidation on 28 June 2011. The
plaintiff
therefore alleges that the full amount owing in terms of the loan
agreement together with all accrued interest became
due and payable
by the principal debtor to the plaintiff;
2.5
On 27 September 2007, the first, second and third defendants had in
writing bound themselves as sureties and co-principal debtors
in
respect of the payment by the principal debtor when it became due and
payable to the plaintiff;
2.6
The plaintiff issued notices to the defendants in terms of section 72
of the National Credit Act in which it demanded payment
of the
outstanding amount from the defendants but the defendants still
failed to pay this amount;
2.7
In their plea, the defendants allege that the representatives of the
plaintiff and the principal debtor were not properly identified
in
the plaintiff's particulars of claim and they therefore deny that the
written loan agreement exists in the alleged manner. They
however
admitted the liquidation of the principal debtor on the date alleged
by the plaintiff.
2.8
The defendants further alleged as their defence that the debt has
prescribed as it became due on
the
date of liquidation of the principal
debtor on 28 June 2011
while the
summons were only issued in April 2020, more than 3
years after the date on which the cause of
action arose. Importantly,
they alleged that the written loan agreement in question
related
to Members CJ Legal Costs Consultants CC and
not the principal debtor (CJ Legal
Costs Consultants CC) for whose debt they
had bound themselves as sureties;
2.9
The plaintiff has brought the application for summary judgment on the
basis that the defendants' plea does not raise any issue
fit for
trial.
[3]
I am not convinced that this is a matter which satisfies the
requirements for the granting of summary judgment against the
defendants for the reasons that follow hereunder.
[4]
In
response
to
the issue
raised by
the
defendants
that
the
written
loan agreement
refers
to Members
CJ Legal
Costs
Consultants
CC
instead
of
the
principal debtor
for
which
the
defendants
had
bound
themselves
as
sureties,
the
plaintiff
contends in
its
heads
of
argument
that
it
will
seek
rectification
of
such
written
agreement.
The
plaintiff
has not yet
pied
rectification.
In the
present
case, it
can
only
do
so
by
way
of
replication
to
the
plea.
The
plaintiff
could
not
file
a
replication as
it could
not take
any further
step after
the plea.
[1]
[5]
Although
the
defendants'
plea
admittedly
raises
issues
which
call
for
the
rectification
of
the
written
loan
agreement,
[2]
the
plaintiff
has
failed
to
deal
therewith
in
its
affidavit
supporting
summary
judgment.
The
attempt
to
do
so
in the
plaintiff’s
heads
of
argument
i
s
not
only
belated
but
also
unpersuasive
and
self-defeating.
The
contention that he
intends
to rectify
the written loan agreement
is a
concession
that
the
cause
of
action
as
reflected
in the
summons
together with
the
unrectified
contract,
is
defective as
matters
stand.
[6]
In terms
of
the
amendment
to
Rule 32
which took
effect
on
01 July
2019,
[3]
the
plaintiff
may
only
seek
summary
judgment
after
the
defendant
has
delivered a
plea.
[4]
One of the
reasons for the amendment
of the Rule
was to
remove
speculation
on the
part of
the
plaintiff
as
to
the
nature
of the
defendant's
defences before
bringing
the application
for
summary judgment.
The
corollary thereof
is that
the
plaintiff
must,
in
its
founding
affidavit
[5]
,
deal
with
the
defences
raised
in
the
plea
with
a
view
to
expose
them
as
illusory
and
incapable
of
raising
a triable
issue.
[7]
It
is
well
known
that
rectification
is
a
defence
that
is
normally
not easy
to
prove
and
for
which
the
onus rests
on
the
plaintiff.
It
requires
the
party
relying
thereon
to
establish
that
what
stands
in the
agreement
is a
common
mistake
of the
parties
as
they
intended
to
agree
to
something
else
[6]
.
In
my
view,
summary
judgment
cannot
and
ought
not to be
granted
in
these circumstances.
[8]
I agree
with
the
defendants'
counsel
that
the
need
to plead
rectification
takes
the
case
outside
the
categories
contained
in
Rule
32(1)
[7]
.
The
Supreme
Court
of
Appeal
[8]
agreed
with
Vermaak
judgment
though
it
added
a rider
that
summary
judgment
is
not
incompetent
where
both
parties
are
ad
idem
as
to
the
respects
in
which
their
written
contract
does
not
correctly
reflect
the
agreement
between
them
[9]
.
[9]
In
PCL
Consulting
[10]
,
the SCA
had the
following
to say:
"[3].
..
A
prayer
for
rectification
does indeed
fall outside the provisions
of
rule
3
2. It
does
so not because it is
a
claim impliedly
excluded
by that rule,
but
because
it is
not. in the true sense.
a
claim at all.
The plaintiff s claim properly
so called is for payment
of arrears due in terms
of
a
lease.
In order to succeed
on
that claim at
a
trial, the plaintiff
would have
to allege and prove,
inter alia,
that it
let premises
to
the defendant
in
terms of an
agreement.
The written
agreement signed by the parties
and annexed
to
the plaintiff’s
particulars
of
claim refers
to what
the plaintiff
alleges
were the
wrong premises.
Th
e
plaintiff
was therefore
obliged
to
seek rectification
of the written agreement
in order to enable
it to lead evidence that what it alleges
were
the correct premises
were let to the defendant
-
for, in the absence
of rectification,
such
evidence
would be inadmissible
both
because
of the parol
evidence
or
integration rule and the rule that no evidence
may be
given to alter
the clear and
unambiguous
meaning
of
a
written contract.
1
But the plaintiff’s
claim remains
a
claim for arrears owing in respect
of the lease
of the 4th floor
office,
and
rectification,
although
essential
to enable
the plaintiff
to
prove its claim, is not part
of that claim."
[4]
I therefore
with respect
agree
with th
e
judgment of
Coetzee
J in
Malcomess
Scania
(Pty)
Ltd v
Vermaak and Another
to the extent
that it holds
that
a
plaintiff who
alleges
that
a
written contract
should
be rectified
is confined
to what
the
plaintiff
alleges is the true agreement
between
the parties,
and cannot
(in the absence
of an express indication
to the contrary)
rely in
the
alternative
upon the terms of the written agreement
as they stand;
but
I am
constrained
to disagree with tha
t
judgment
to the extent
that it suggests
that
summary judgment is
incompetent,
even
where both parties
are ad idem as
to
the respects
in
which their written
contract
does not correctly
reflect the
agreement
between them."
[
my
emphasis]
[10]
Moreover, in the present case the rectification, which has not yet
been pleaded but has been admitted to be necessary in order
to
validate the plaintiff's claim, relates to whether or not the
principal debtor cited in these proceedings is the one for whose
indebtedness the defendants had signed surety. In other words, should
such envisaged rectification not be ultimately pleaded for
purposes
of the trial or should it not succeed, it will be the end of the road
for the plaintiff.
[11]
Even if the case were to fall within one of the categories of Rule
32(1), for the reasons already outlined above, the necessity
for
rectification still disqualifies it for summary judgment.
[12]
In view of the above, I find it unnecessary for me to deal with the
rest of defences raised in the defendants' plea.
[13]
As far as costs are concerned, the bringing of summary judgment and
insisting upon it in the present circumstances appears
to be
unreasonable on the part of the plaintiff. This is exacerbated by the
plaintiff s startling failure to deal, in its application,
with the
defence raised in the defendants' plea that the written loan
agreement refers to a different entity from the one cited
in the
papers.
[14]
Rule 32(9)(a) empowers this court to order, among others, costs even
on a punitive scale against a plaintiff who brings an
application for
summary judgment where the case falls under the purview of sub-rule
(1) or where, in the opinion of the court the
defendant relied on a
contention which would entitle such defendant to leave to defend. As
indicated earlier, I am of the view
that this case technically falls
arguably outside the parameters of sub-rule (1). Moreover, my view is
that the plaintiff knew
or ought reasonably to have known that the
defendants' contention as contained in their plea would entitle them
to leave to defend.
[15]
The plaintiff has advanced no plausible ground why it proceeded to
bring the present application in the light of the defendants'
contention nor why it persisted with the application up to this
point. In my view, this is the proper case for showing displeasure
at
the conduct of the plaintiff by mulcting it with costs of this
application. The defendants who are ordinary citizens as opposed
to
plaintiff which is one of the largest banking institutions in South
Africa, had to endure the pain of resisting this rather
ill-founded
application.
[16]
I am however not inclined to grant costs on a punitive scale for the
simple reason that the exclusion of this case from the
categories of
sub-rule (1) by future of the intended rectification is quite a
technical exercise. Having exercised the court's
discretion to refuse
summary judgment, I further exercise my discretion with regard to
costs.
[17]
Lastly,
the
wasted
costs
occasioned
by
the
postponement
of
04
February
2021 are clearly
attributable
to the
plaintiff.
Contrary
to this
court's
Practice
Manual
[11]
requiring
plaintiffs
to
set
down
summary
judgment
applications
which
are
estimated
to
last
for more
than one
hour
on
the opposed
roll,
the
present
plaintiff
set
it
down
on
the
unopposed
of
04
February
2021.
The
initial
estimation of the
duration
of
arguments
by the
plaintiff
was
one
hour which
was
criticized
by
the
defendants
as
unreasonable.
The
postponement
was
caused
thereby.
The same
plaintiff
has
now
in
its
updated
practice
estimated
the
duration at
1
to
2
hours. This
makes the
plaintiff
liable for
the costs
occasioned
by the
postponement.
[18]
In the result I make the following order:
1.
The application for summary judgment is dismissed;
2.
The first and second defendants are granted leave to defend;
3.
The plaintiff is ordered to pay the costs of the application for
summary judgment inclusive of the wasted costs of 04 February
2021.
DT
SKOSANA (AJ)
Acting
Judge of the High Court
Appearances:
For
the Applicant/Plaintiff
Adv K Moloisane
Instructed by Vezi De
Beer Inc
319
Alpine Way
Lynwood, Pretoria
For
1
st
and 2
nd
Respondents/Defendants:
Adv HAA Krige
Instructed by
Lombard Muller &
Vennote Inc.
7
12
th
Street
Menlo Park, Pretoria
For
3
rd
Respondent/Defendant:
No appearance
Date
of hearing: 10 May 2021
Date
of judgment: 11May 2021
[1]
Hire
Purchase
Discount
Co
ltd
v
Ryan
Scholtz
&
Co
ltd
1979(2)
SA
305
(SE).
[2]
Para
6.2.4
of the defendants'
plea
[3]
Introduced
by GN
R842
published
in GG
42497 of 31 May 2019.
[4]
Rule 32(1).
[5]
Plaintiff
is
not
entitles
to
file
a
replying
or
further
affidavit
(see
Rule
32(4))
[6]
Shepherd
Real
Estate
Investments
(Pty) Ltd
v Rou x
Le Roux
Motors CC
2020(2)SA
419(SCA)
paras 21-23
[7]
Malcomes
Scania
(Pty) Ltd
v
Vermaak
1984(1)SA
297 (W) at 299E
[8]
In PCL Consulting (
Pty)
Ltd
t/a
Phillips
Consulting SA v Tresso Trading
119 (Pty)
Ltd
2009
(4) SA 68
(SCA) at 701-71
A
[9]
PCL Consulting (supra) pa
ra 5
[10]
PCL Consulting
(supra) pa
ra
[11]
Paragraph
9.12 of
the Consolidated
Practice
Manual