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[2018] ZAGPPHC 855
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Standard Bank of South Africa Ltd v Wilkenson (68566/2018) [2018] ZAGPPHC 855 (30 January 2018)
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG DIVISION, PRETORIA)
(
1)
REPORTABLE
(2)
OF INTEREST TO OTHER JUDGES
(3)
REVISED.
Case number: 68566/2018
Date of hearing: 13 December 2018
Date delivered: 30 January 2018
In
the application of:
THE
STANDARD BANK OF SOUTH AFRICA LTD
Plaintiff
and
ANTHONY
ANDREW WILKENSON
Defendant
JUDGMENT
SWANEPOEL
AJ:
[1]
This is an
application
for summary judgment Plaintiff issued
summons against Defendant for payment of the sum of R 500 371.23. It
is common cause that
plaintiff granted an overdraft facility to a
business known as Trafalgar Plumbing and Drain Services CC
C-Trafalgar"). It
is also common cause that on 7 February 2003
Defendant bound himself as surety and co-principal debtor with
Trafalgar for repayment
of the latter's debt.
[2]
Trafalgar was wound up on 26 September
2016. A substantial sum of money was still owed to plaintiff, which,
calculated at 25 June
2018, amounted to the claimed amount.
[3]
Defendant entered an
appearance
to defend, whereafter plaintiff
applied for summary judgment Rule 32 (3) of the Uniform Rules of
Court requires a defendant against
whom summary judgment is being
sought to either give security for any judgment and costs (rule 32
(3) (a)), or to deliver an affidavit
opposing the application deposed
to by defendant or any person who can swear positively to the fad
that defendant has a
bona fide
defence to the action. Defendant is
required to fully set out the nature and grounds of the defence in
the affidavit, and the facts
relied upon(rule 32 (3) (b)).
[3]
In his affidavit opposing summary judgment Defendant raises three
defences:
3.1
That the suretyship creates an accessory
debt, which is dependent upon the principal debt. Plaintiff had not
attached a copy of
the main agreement between plaintiff and Trafalgar
to its particulars of claim, which Defendant avers is fatal to its
claim;
3.2
That
the suretyship was intended to apply to a first overdraft facility
that was granted in 2003. That facility was called up by
plaintiff
and settled by defendant settled, whereafter defendant did not owe
any further monies to plaintiff. The current debt
allegedly arises
from a further overdraft that arose after the commencement of the
National Credit Act, 2005 (“the Act”).
It is defendant’s
case that the settling of the original debt resulted in the debt
being extinguished and the suretyship
terminating.
3.3
That
the granting of further credit after commencement of the Act
constituted reckless credit, by virtue of the fact that plaintiff
did
not conduct a credit assessment to ascertain whether the granting of
a further loan was not reckless credit.
[4]
It would be opportune firstly to deal
with the defence that the particulars of claim did not disclose a
cause of action because
the main agreement between the plaintiff and
Trafalgar had not been annexed. That contention was already dealt
with by my sister
Khumalo J in the unreported case of Standard Bank
of South Africa Ltd
v
Redmond
case number 2016/80438):, where she found that the cause of action in
a claim based upon a suretyship was the suretyship
itself. The
absence of the main agreement did not render the particulars of claim
excipiable. I am respectfully in agreement with
Khumalo J.
[5]
A further defence is that the overdraft
was recklessly granted by the plaintiff. As plaintiff points out in
its heads of argument,
the principal debtor is a juristic person, and
the provisions of the Ad relating to reckless credit are not
applicable to a juristic
person (section 6 (a) of the Act).
[6]
The final defence is that the original debt arose from an agreement
between Trafalgar
and plaintiff in 2003 in terms of which Trafalgar
was granted an overdraft facility. That facility was called up, and
the debt
was settled. It is defendant's case that the payment of the
overdraft facility extinguished the debt. which resulted in the
suretyship
terminating.
[7]
Clause 1 of the suretyship reads as
follows:
“
I/We,
Anthony Andrew Wilkenson (Identity number..........) bind
myself/ourselves
as
surety(ies)
and co-principal debtor(s) for the
payment when due of all the
present and future debt of any kind (the Debts·) of Trafalgar
Plumbing and Drain Services Close
Corporation (Registration number
1997/041379123) (“the Debtor") to The Standard Bank of
South Africa United (Registration
number 1962/000738/06) ("the
Bank"), or to anyone who takes transfer of the Bank's rights
under this suretyship
.
[8]
Clause 8.3 of the suretyship provides
that renewal, change or withdrawal of any facilities granted to the
debtor did not affect
the liability of defendant under the
suretyship. Clause 12.1 provides that the suretyship would not end if
there is temporarily
no debt. Clause 12.6 reads as follows:
“
12.6
My/Our liability for the Debts will only end when-
12.6.1
my l our liability has been
extinguished;-or
12.6.2 the Bank gives me/us a
written release from liability under this suretyship; or
12.6.2
the Bank cancels this suretyship
in writing;
[9]
Clause 12.7 provides that
the
suretyship may only be
terminated, cancelled or other wise brought to an end in the way
provided for in the suretyship.
[10]
Clause 12.1 reads as follows:
·This suretyship does
not end if temporarily there are no debts or because of the death or
legal disability of the Debtor
or me/us."
[11] In
the event that a debtor temporarily pays up his debts, without
cancelling the overdraft
facility, no doubt clause 12.1 would take
effect, and any debt incurred thereafter would still be subject to
the suretyship.
In casu
however,
the overdraft facility was called up by plaintiff. The debt was paid,
and only some time later was a further overdraft
facility agreed
upon.
[12]
In my view defendant may possibly make
out a case on trial that the debt was extinguished as provided for in
clause 12.6.1, and
that the suretyship had terminated. Consequently I
find that defendant has disclosed sufficient facts that, if proven at
trial,
would result in defendant being successful.
[13]
I consequently make the following order:
13.1
Defendant is granted leave to defend.
13.2
The costs of the application will be
costs in the cause.
Swanepoel AJ
Acting Judge of the High Court,
Gauteng Division, Pretoria