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[2008] ZASCA 96
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Brand House (Pty) Ltd v Sasfi Bank Ltd; Brandhouse Beverages (Pty) Ltd v Sasfin Bank Ltd (530/07) [2008] ZASCA 96; [2009] 1 All SA 22 (SCA) (16 September 2008)
Links to summary
THE SUPREME COURT OF APPEAL OF SOUTH
AFRICA
Case No: 530/07
NO PRECEDENTIAL INTEREST
In
the matter between:
BRAND
HOUSE (PTY) LTD
APPELLANT
and
SASFIN
BANK LTD
RESPONDENT
BRANDHOUSE
BEVERAGES (PTY) LTD APPELLANT
and
SASFIN
BANK LTD
RESPONDENT
Neutral citation:
Brand
House v Sasfin Bank
(530/2007)
[2008] ZASCA 96
(16 September 2008).
Coram: Cloete,
Maya et Cachalia JJA
Heard: 8
September 2008
Delivered: 16
September 2008
Summary:
Summary judgment. Appellants disclosing bona fide defence.
______________________________________________________________
ORDER
______________________________________________________________
On appeal from:
High Court, Cape Town (Thring J sitting as court of first instance).
The following orders are made:
(1) The appeals are allowed, with
costs.
(2) The
orders
of the court below are set aside and substituted, with the following
orders:
(a) Under CPD Case No: 2241/2007 (the
Brand House claim):
‘(i) The application for
summary judgment is refused.
(ii) Leave to defend the action is
granted to the defendant.
(iii) The costs of the summary
judgment application are reserved.’
(b) Under CPD Case No: 2242/2007
(Brandhouse Beverages):
‘
(i) Summary judgment is granted
in the sum of R367 924.37 together with interest thereon at the rate
of 15,5 per cent per annum
a
tempore
morae
.
(ii) Save as aforesaid, the
application for summary judgment is refused.
(iii) Leave to defend the action for
the balance claimed is granted to the defendant.
(iv) The costs of the summary
judgment application are reserved.’
_____________________________________________________________
JUDGMENT
______________________________________________________________
CACHALIA JA (CLOETE, MAYA JJA
CONCURRING)
[1]
This
judgment deals with two appeals against decisions by Thring J given
in the Cape High Court, whereby he ordered summary judgment,
at the
instance of Sasfin Bank Ltd, against Brand House (Pty) Ltd in the sum
of R316 299.77 together with interest and costs, and
against
Brandhouse Beverages in the sum of R1 024 773.36 also with
interest and costs. These appeals are with leave of
the court below.
It will be convenient to refer to the appellants, where appropriate,
individually as Brand House and Brandhouse
Beverages and, to the
respondent, as Sasfin.
[2]
The
appellants, who appear to be associated companies, have separate
accounts with Sasfin arising from a cession agreement between
Sasfin
and Clickrite Gauteng (Pty) Ltd in terms of which Sasfin took over
Clickrite’s claims against them. These claims relate
to goods
sold and delivered by Clickrite to the appellants. The main issue
before us (as in the court below), concerns whether,
in disputing
Sasfin’s quantification of the claim against each of Brand
House and Brandhouse Beverages, they disclosed a
bona fide defence.
In both cases the summons was supported by a trade creditor’s
statement, which set out how the amounts,
for which summary judgment
was sought and granted, were calculated. In its particulars of claim
Sasfin averred that these statements
reflect
all
of the amounts the appellants have paid and that the balances
accordingly represent the deficit, ie the amounts still owing.
[3]
The
affidavits opposing summary judgment in the two matters, deposed to
by one Maria Christina Juul, who describes herself as the
‘Client
Liaison Officer’ of the appellants, are identical. In both, she
pertinently denies that the statements attached
to the particulars of
claim ‘are a full record of all of the payments made’. To
corroborate this allegation she attaches
a reconciliation statement
which, she says, ‘reflects all payments made’ to Sasfin.
The clear implication of these
statements is that payments over and
above those taken into account by Sasfin were made. It is contended
on behalf of the appellants
that the information appearing in the
reconciliation statement reveals that Sasfin owes Brand House R155
600. 92, while Brandhouse
Beverages owes Sasfin R367 923.60. So
Brandhouse Beverages concedes that Sasfin is entitled to summary
judgment in this amount.
[4]
In
the court below, the learned judge found that as the author of the
reconciliation statement had not deposed to an affidavit,
its
contents for this reason constituted hearsay evidence and were thus
inadmissible. He also found that the contents of the reconciliation
statement were neither clear nor readily intelligible and that there
were discrepancies between it and Ms Juul’s affidavits.
He
noted that all that the appellants were able to aver was that their
combined indebtedness did not exceed the sum of R212 322.65
and that
they were unable to specify the extent of each of their indebtedness
to Sasfin. (This amount was arrived at by deducting
the R155 600.92
allegedly owed by Sasfin to Brand House from the R367 923.60 which
Brandhouse Beverages concedes it owes to Sasfin.)
And further, the
judge observed that counsel, who appeared on behalf of the appellants
in the court below, was not able to provide
any further elucidation
in argument. He thus held that these shortcomings meant that the
appellants had not established that either
had a bona fide defence to
Sasfin’s claim.
[5]
For
present purposes it is not necessary to deal with the contents of the
reconciliation statement in any detail. I accept that
the
reconciliation statement is not a model of clarity. And I can readily
comprehend the judge’s difficulty in deciphering
the
appellants’ quantification of the relevant amounts. However, in
this court, counsel for the appellants undertook a thorough
analysis
of the reconciliation statement, both in their heads of argument and
during oral submissions in elucidation of Ms Juul’s
opposing
affidavit. Properly understood the reconciliation statement shows the
dates on which the appellants allege that amounts
of invoices Sasfin
claims were outstanding, were paid. Despite this counsel for Sasfin
persisted in his submission that neither
Ms Juul’s
affidavits nor the reconciliation statement indicated clearly that
the appellants had paid the full amounts
owing. In my view the
submission is unmeritorious. Not only have the appellants now clearly
and fully explained their calculations
but, by conceding that the
amount of R367 923.60 is owing by Brandhouse Beverages to
Sasfin, have also demonstrated their
bona fides. In my view, this is
sufficient to overcome the threshold for resisting summary judgment.
[6]
Concerning
the finding by the court below that the reconciliation statement
attached to Ms Juul’s affidavit constituted inadmissible
hearsay evidence and also Sasfin’s submission that her
designation does not suggest that she has any personal knowledge of
the facts, I am constrained to disagree. She says in clear terms that
she has personal knowledge of the facts and even if she was
not the
author of the document she was able to verify its contents. The
reconciliation statement was therefore admissible. (Cf:
Maharaj
v Barclays National Bank Ltd
1976 (1) SA 418
(A) at 424.)
[7]
I
turn to the question of costs. In the court below the appellants were
not represented by the same counsel as in the appeal. And
the court’s
observation that counsel was not able to explain the payments
reflected in the reconciliation statement indicates
that the
appellants, by possibly failing to present their case properly in the
court below, may have been the authors of their
own misfortune. But
the full facts of what occurred in the court below are not before us.
It is therefore appropriate to reserve
the costs in that court and
counsel were agreed that such orders should be made in the event that
the appeals succeeded. However,
it would have been clear to Sasfin,
having received the appellants’ heads of argument in the
appeal, that Brand House indeed
raised a defence and Brandhouse
Beverages a partial defence to its claims. It must therefore bear the
costs of having persisted
in this appeal, although the employment of
two counsel was not in my view justified.
[8]
The
following orders are made:
(1) The appeals are allowed, with
costs.
(2) The orders of the court below are
set aside and substituted, with the following orders:
(a) Under CPD Case No: 2241/2007 (the
Brand House claim):
‘(i) The application for
summary judgment is refused.
(ii) Leave to defend the action is
granted to the defendant.
(iii) The costs of the summary
judgment application are reserved.’
(b) Under CPD Case No: 2242/2007
(Brandhouse Beverages):
‘
(i) Summary judgment is granted
in the sum of R367 924.37 together with interest thereon at the rate
of 15,5 per cent per annum
a
tempore
morae
.
(ii) Save as aforesaid, the
application for summary judgment is refused.
(iii) Leave to defend the action for
the balance claimed is granted to the defendant.
(iv) The costs of the summary
judgment application are reserved.’
_________________
A CACHALIA
JUDGE OF APPEAL
APPEARANCES:
FOR APPELLANT: J C
BUTLER;
L A VAN DER WESTHUIZEN
INSTRUCTED BY: CLIFFE DEKKER INC; CAPE
TOWN
CLAUDE REID INC; BLOEMFONTEIN
FOR RESPONDENT:
A
SUBEL SC;
J
T
LOUW
INSTRUCTED BY:
RELIHAN, MANAMELA & MAYER; JOHANNESBURG
LOVIUS
BLOCK; BLOEMFONTEIN