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[2021] ZAGPPHC 421
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First National Bank, A Division of First Rand Bank Limited v Antley Lighting (Pty) Ltd and Others (31890/2019) [2021] ZAGPPHC 421 (11 June 2021)
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IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA
Case
no: 31890/2019
NOT
REPORTABLE
NOT
OF INTEREST TO OTHER JUDGES
NOT
REVISED
11
JUNE 2021
In
the matter between:
FIRST
NATIONAL BANK, A
DIVISION
Plaintiff
OF
FIRST RAND BANK LIMITED
(Registration:
1929 / 001225/06)
And
ANTLEY
LIGHTING
(PTY)
LTD
First Defendant
(Registration
: 2013/ 118962/ 07)
AIDEN
ANTHONY HAWLEY
Second
Defendant
[…]
LESLEY
NELLIAN
HAWLEY
Third
Defendant
[…]
JUDGEMENT
NE
NKOSI AJ
[1] This is an
application in terms of Rule 23(1) of the Uniform Rules of Court
brought by the second and third defendants. The
application is
opposed by the plaintiff.
[2]
The
defendants raised an exception to the plaintiff s simple
summons citing two grounds. The second ground, as it appears in the
notice
of exception, was abandoned by both defendants during the
hearing of this application. The only remaining ground of the
defendants
exception is stated in the notice of exception as follows:
"1.
The
basis
of
the
first
ground
of exception is that
the
cause
of action
plead
ed
in the
plaintiff
’
s
simple summons
d
ated 10 May
2019,
is
discrepant from
the one
plea
d
ed
in the
d
eclaratio
n
.
2.
The
simple summons
-
2.1
Is defectiv
e
for
want of compliance with
Rule 17(2)(b)
as it
fail ed to
disclose a cause of action;
2.2
Fai
l
ed
to
disclose
a cause
o
f
action
as it was of vital importance
for
the
plaintiff
to
have attached the written
deed
of suretyship to
the
simple
summons,
taking into account that
its
cause
of
action
is
based on
the
aforementioned
d
eed
of suretyship
[1]
."
[3] The defendants' basic
complaint is that the deed of suretyship was not attached to the
simple summons and for that reason it
was contended, by Mr. Coetzee
appearing for the defendants that, the simple summons does not
disclose a cause of action and does
not comply with Rule 17(2)(b) of
the Uniform Rules of Court.
[4]
This application stems from the plaintiff 's action against,
inter
alia,
second and third defendants which was commenced by
way of a simple summons.
[5]
The deed of suretyship was not annexed to the simple summons. The
plaintiff applied for summary judgement which was granted
against the
first defendant but the second and third defendants were granted
leave to defend the action. Thereafter, the plaintiff
delivered a
declaration with copies of the deed of suretyship ("annexures
SJ2 and SJ3") annexed to it.
[6]
The cause of action in respect of the second and third defendants is
stated in the simple summons as follows:
"As
against
the
second
and
the
third
defend ants
respectively,
in
terms
of
a
written
suret
y
ship
agreement
contained
in
the
paragraph
3.3
of
the facility
agreement
annexed
hereto
as
Annexure
"B"
signed at
PRETORIA
on
25
June
2018,
wherein
the
second
and
the
third
d
e
fendant
bound
themse
l
ves
jointly
and
severally
as
surety
and
co-principal
debtor for the p
a
yment
when
due
of
all
present
and
future debts of any
kind
of
the
first
d
efen
d
ant
to
the
plaintiff
to an
unlimited
amount
[2]
."
[7]
In the declaration the cause of action in respect of the second
defendant is that:
"On
or
about
4
January
2017
and
at
or
near Pretoria the second
d
efendant
in
writing
bound
himself
jointly and severally
as
surety
and
co
-
principal
d
ebtor
for
the
payment
when
due
of
all
p
r
esent
and
future
debts
of
any
kind
of
the
first
defen
d
ant;
to
the plaintiff A
copy
of
the
d
eed
of
suret
y
ship
is
annexed
hereto
marked
as
An
n
exure
"SJ2
"
[3]
."
[8]
In respect of the third defendant the declaration says:
"On
or about
01
October
2015 and
4
January
2017
respectively
and
at
or near
Pretoria
the
third
defend
ant,
in writing,
bound
herself
jointly
and
severally
as
surety
and
co-principal
d
ebtor
for
the
payment
when
due
of
all
p
r
esent
and
future
debts
of any kind
of
the first
defend
ant
to the
plaintiff
A
c
o
py
of
the
d
eed
of
suretyship
is annexed to
the
plaintiff's
summons
as
Annexure
"SJ3
and
SJ2
re
s
pectively
[4]
.
"
[9] A simple analysis of
the declaration and the simple summons indicates that the plaintiff s
cause of action against the second
and third defendants is based on a
suretyship agreement in terms of which both defendants, respectively
bound themselves to be
liable jointly and severally to the plain tiff
for the debts of the first defendant. It is further clear that the
cause of action
is the same in both, the simple summons and the
declaration.
[10]
I agree
with Mr. Jacobs, the plaintiffs Counsel, that a simple summons
is
not
a
pleading
[5]
and
accordingly
cannot
be
attacked
by
way
of
an
exception.
In
Jee
Breakers
83
(Pty)
LTD v Medicross
Healthcare
Group
(Pty)
LTD
[6]
,
Wallis
J held that:
"As
that is all
that is required
of a
plaintiff issuing a simple summons
to recover
a debt or liquidated
d
emand, it would
be incongruous
were a
d
efendant
able to
take exception
to the summons.
In
terms of Rule
23(1)
the only
ground s for
an
exc
e
ption
are
that
the
pleading
is vague
and embarrassing or
that
it
lacks
averments
necessary to
sustain an
action.
Yet
in
accordance
with
our
authorities
a simple
summons
may
be
p
erfectly
valid
even
though the cause
of
action is stated vaguely or is defective.
The
contention
that an exc
e
ption
can
be
taken
to
a
simple
summons is
therefore
inconsistent
with
the
nature
of
such a
summons
and
the
requirements of
the rules
in regard
to its content
.
"
[11] When a plaintiff
seeks to proceed to another level on the basis of a simple summons,
for instance, if he applies for default
judgement or summary
judgement, he cannot succeed if the document upon which the cause of
action is based is not annexed to the
simple summons.
"
Where
the
cause
of
action
is
found
ed
on
some
document,
reference
thereto
should
be
made
in
the
simple
summons
and
a
copy
should
be
attached
to
the
summons
and
the
original
should
be
handed
in
at the time when application
for
default
judgment
is
ma
d
e.
If a copy
of
the required
document
is
not
attached
to
the
simple
summons,
the summons
would
not
disclose
a
cause
of
action
[7]
."
[12] In casu, plaintiffs
claim is for a liquidated debt. In terms of Rule 20 (Uniform Rules)
plaintiff delivered its declaration
shortly after receiving a notice
of intention to defend from both defendants. In terms of Uniform Rule
22, the defendants are required
to deliver a plea with or without a
claim in reconvention, or an exception with or without application to
strike out. This rule
envisages a plea or exception to a declaration
and not a simple summons.
[13]
The defendants referred to Section 6 of the General Amendment Act 56
of 1996 and Rule 17(2)(b) of the Uniform Rules in support
of their
exception.
[14]
Section 6 of General Law amendment act provides:
"6.
Formalities
in respect of contracts of suretyship:
No
contract of suretyship
entered
into after
the commencement
of this Act, shall
be valid
unless the terms thereof are embodied
in a
written
d
ocument signed
by
or on
behalf of the surety:
Provided
that
nothing in this section contained
shall
affect
the liability of the
signer or an
aval
un
d
er
the laws relating to negotiable
instruments."
This
section does not support the defendants' contention that the summons
does not disclose the cause of action and therefore cannot
be relied
upon. It merely refers to the prescribed formalities to be adhered to
when relying on a suretyship agreement.
[15]
Rule 17(2)(b) states:
"
In
every
case where the claim is for
a debt
or liquidated
d
emand
the summons
shall
be as
near as
may
be in accordance wit
h
form 9 of the
first
schedule"
Form
9 of the first schedule deals with the form which simple summons must
follow. The rule does not explicitly go further and prescribe
a
requirement that copies of relevant agreements must be annexed to a
simple summons.
[
16] In
ABSA
Bank Limited
v
Janse
Van
Rensburg
&
Others
[8]
the
full bench
of the
Western
Cape
Division
held
that,
on proper
interpretation
of
Rule
1
7(2)(b)
read
with
Form
9, it is
necessary to attach a copy of
the written
agreement
to
the
summons
where
the
plaintiffs
cause
of
action
is based
on such
agreement.
['17]
In
ABSA
Bank Limited
v
Studdard and Another
[9]
,
Wepener
J referred to the following remarks of Swain J in
Moosa
v Hassam
[10]
which
deal with non-compliance
with
the
requirements
of
Uniform
Rule
6:
"In
the
present
case
the
respondents
base
their
cause
of
action
against
the
applicants
upon
a
written
agreement.
The
written
agreement
is
a
vital
link
in
the
chain of respondents' cause of action against the applicants. In
order for
the
respon
d
ents'
cause
of
action
to
be
properly
plead ed,
it
is
necessary
for
the
written
agreement
relied
upon
to be annexed
to
the particulars of
claim.
In
the
absences
of
the written agreement,
the
basis of the respon
d
ents'
cause
of
action
does
not
appear ex facie the pleadings
[11]
."
Wepener
J held that:
"if
it
is
correct
that
it
is
necessary
for
a
plaintiff
to
attach
the
d
ocument
to
properly
plead
its
cause
of
action,
such
would
be
correct
not only
for
the
purposes
of Rule
18,
but
als
o
for
th
e
purposes
of Rule
17
as,
the
plaintiff
would
disclose
no
cause
of
action
pu
r
suant
to
the
provisions
of
Rule
17
if
it
fails
to
attach
the written agreement
[12]
."
[18]
I am in agreement with the views expressed by Wepener J, Swain J and
the passage in Erasmus to the extent that the views relate
to
applications for summary judgement, default judgement, compliance
with Rule 18(6) the list may not be exhaustive. However, in
my view,
where a simple summons has been met with a notice of intention to
defend, the simple summons cannot be attacked for failing
to have a
copy of an agreement attached to it. The attack should be directed at
the declaration which constitutes a pleading.
[19]
In the present case, the cause of action relied upon is contained in
the declaration which is materially similar to the one
contained in
the simple summons. A copy of the deed of suretyship agreement in
respect of each defendant is attached to the declaration
.
[20]
Once a
declaration
is delivered, the defendants are expected to plead or
file an
exception to the declaration
and not to
the simple summons
[13]
.
[21]
I am satisfied that the declaration contains annexures pertaining to
the deed of suretyship and that the cause of action is
consistent
with the one raised in the simple summons. A declaration constitutes
a pleading. The defendants should therefore be
able to file a plea or
an exception to the declaration if they so wish.
[22]
I am therefore of the view that the exception raised by the
defendants should be dismissed with costs.
[23]
Mr. Jacobs submitted that costs should be on an attorney and client
scale, largely because of the manner in which the defendants
conducted themselves in this application. They withdrew their second
ground of exception during the hearing of the application
when they
could have done so earlier. Mr. Jacobs argued further that the issues
raised in the exception were not necessary having
regard to the
available authorities which Mr. Coetzee should have consulted.
[24]
Mr. Coetzee submitted that the appropriate scale of cost should be on
a party and party .
[25]
It
is
trite that
the
costs
should
follow
the
results.
The
Court
has
a
discretion
in
awarding
costs.
In
Ferreira
v
Levin NO and
Ot
h
ers
[14]
the
Constitutional
Court
stated
tha
t
:
"The
Supreme
Court has, over the years,
developed
a
flexible approach to costs
which procee
d
s from
two basi
c
principles,
the first
being that
the award
of costs,
unless expressly
otherwise
enacted, is in the discretion
of the presiding
judicial
officer and
the second
that the succes
s
ful
part y
should, as a general
rule,
have
his
or
her
costs.
Even
this
second
principle
is
s
u
bject
to
the
first.
The second
principle
is
subject to a large number of exceptions where the successful
part
y
is
deprived of his
or her costs. Without
attempting either
comprehensiveness or
complete
analytical
accuracy,
depriving
successful
parties
of their costs
can
depend
on
circumstances
such
as,
for
exa
m
ple,
the
conduct
of parties, the conduct
of
their
legal
representatives,
whether
a
part
y
achieves
technical
success only, the
nature of litigants and the nature of
proceedings. "
[26]
An award
of attorney
-
and
-
client
costs will
not be
granted
lightly as
the
courts look
upon such orders with disfavour and is loath to penalise
a person
who has
exercised
a
right to obtain
a
judicial
decision on
any
complainant
such party
may have
[15]
.
[27]
The
list of grounds upon which a court may grant a punitive
cost order on an attorney and client scale is not exhaustive. They
include
dishonesty, fraud, reckless and malicious or frivolous
motives.
[28]
I am not persuaded that the scale of costs sought by the
plaintiff is justifiable in this case.
The
defendants
did not commit any of the grounds listed above (para 27).
The
defendants' heads of argument are premised on case law researched
by Mr.
Coetzee. The
only issue is the interpretation of
the views of the authorities
referred
to by either party.
[29]
In the circumstances I make the following order:
1.
The
exception is dismissed;
2.
The
Second and Third defendants are to pay plaintiff's costs of
application jointly and severally, the one paying the other to be
absolved
NE
NKOSI, AJ
Acting
Judge of the
High
Court
Date
of hearing:
31 May 2021
Date
of Judgement:
11 June 2021
For
the Plaintiff:
Adv Jacobs
Instructed
by:
Vezi & De Beer Incorporated
For
the Second
and
Third Defendants: Mr. M Coetzee
Instructed
by:
Morne Coetzee Attorneys
[1]
Caselines B
-
3 at B73
-
77.
[2]
Caselines B3, at
pa ra
1.2.
[3]
Caselines BSS, at pa
ra 13
[4]
Caselines B57, para
1
7.
[5]
I
ce
Breakers
83
{Pty)
LTD
v
Medicross
Healthcare
Group
(Pty)
LTD
2011
(5)
SA
130
(KZD)
at
131F
-
H
and 134 E
-5.
[6]
I
ce
Breakers 83 {Pty)LTD v Medicross Hea
l
thcare
Group (Pty) LTD
supra
at
para 6.
[7]
DE
Van
Loggerenberg & PBJ Farlam, Erasmus Superior Court Practice Bl
-
1
24
at nn
5
and 6 (Service 39, 2021).
[8]
As yet
unreported
decision of the Western
Cape High
Court
in
Case
number
1
607
1
/
1
2,
handed down on 24 December 2012, referred to in ABSA Bank Limited v
Nicolas and Another, Absa Bank Ltd v Nicholas and
Another
(
1
9942/201
1
,
1
8243/201
1
)[2013]ZAWCHC
58 (20
February
2013)
at
para
9.
[9]
ABSA Bank Limited v Studdard and Another, [2012] ZAGPJHC 26 (13
March 2012).
[10]
Moosa v Hassam,
2010 (2) SA 410
(KZP) at para
1
8.
[11]
See footnote number 7 at para
1
7.
[12]
Studdard
supra
n 7 at
para (
1
5],
also see Absa Bank Limited v Nicolas and Another
supra
at 6
at para 9.
[13]
Uniform Rule 22 (
1
).
[14]
Ferreira v Levin NO and Others, (
1
996)
ZACC 27
;
1
996
(2) SA 621at
para 3.
[15]
Herbstein & V
a
n
Winsen -
The Civil
Practice
of the High Courts of South Africa Vol
2 at page
971.
Also
see De Villiers v Murrayburg School Board
1
910
CPD 535
at 538 Jewi
s
h
ColonialTrust
Ltd v
Estate Nathan
1
940
A
D
1
63
at
1
83
-
1
84.