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[2016] ZAGPPHC 57
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MFC A Division of Nedbank Ltd v Smith and Others (72492/2015) [2016] ZAGPPHC 57 (27 January 2016)
HIGH
COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
Case
no. 72492/2015
27/01/2016
NOT
REPORTABLE
NOT
OF INTEREST TO OTHER JUDGES
REVISED
In
the matter between:
MFC,
A DIVISION OF NEDBANK
LTD Applicant
and
ARB
SMIT First
Respondent
IJ
SMITH Second
Respondent
MJ
PAILE Third
Respondent
JUDGMENT
RABIE,
J
1.
In this application the applicant applied for summary
judgement against the first, second and third respondents for payment
of the
amount of R 135 656, 55 together with interest and costs. The
respondents were sued in their capacities as co-principal debtors
and
sureties of and on behalf of Siyabonga Civil Works & Steel Pty
Ltd (hereinafter "the principal debtor").
2.
The background to the matter is briefly the following:
During September 2008 the principal debtor and Imperial Bank Ltd
entered
into a written lease agreement in terms of which certain
movable goods were leased. It was in respect of this agreement which
the
respondents bound themselves as co-principal debtors and
sureties.
3.
During October 2010 the applicant and Imperial Bank
entered into a written agreement in terms of which the applicant, in
terms of
section 54 of the Banks Act, purchased the business of
Imperial Bank as an indivisible whole and as a going concern.
According
to the agreement the "business" sold was the
business which Imperial Bank conducted, comprising the assets of the
business
which included the immovable property, the trademarks and
all claims against trade debtors in respect of the business. All the
assets and liabilities of Imperial Bank were also transferred to the
applicant. According to the agreement the "assets"
meant
all the assets of Imperial Bank on the implementation date of the
sale excluding claims against SARS. The required statutory
approval
for the transfer of the assets and liabilities of Imperial Bank to
the applicant was duly granted by the Registrar of
Banks as well as
the Minister of Finance.
4.
According to the applicant's particulars of claim the
aforesaid constituted a cession to it of all Imperial Bank's rights
in terms
of the aforesaid agreements with the respondents.
5.
The applicant pleaded that the principal debtor breached
the lease agreement by failing to pay the agreed monthly rentals
entitling
the applicant to cancel the aforesaid agreement and to
claim whatever is due to it.
6.
The principal debtor was finally liquidated during or
about May 2015. The applicant decided that it was not economically
viable
to recover the leased goods and abandoned same in favour of
the principal debtor in liquidation. Subsequently, and in the present
action, the applicant claimed payment of the amount payable in terms
of the lease agreement.
7.
The respondents opposed the action and the applicant
instituted the present application for summary judgement.
8.
The respondents did not deny the deeds of suretyship nor
the amount claimed and also did not dispute the authenticity or
lawfulness
of the agreement between Imperial Bank and the applicant
but relied on so-called technical defences alone. I shall briefly
refer
to these defences.
9.
Firstly, it was submitted that the officials of the
applicant who deposed to the affidavit supporting the application for
summary
judgement laid no basis to confirm that they considered the
"Imperial Bank documentation". Furthermore that no
supporting
affidavit of anybody previously in the employ of Imperial
Bank, was annexed. Consequently, so it was submitted, the deponents
to
the supporting affidavit did not have personal knowledge of the
matter as stated by them.
10.
There is no merit in this submission. Firstly, the
business of Imperial Bank was taken over as a going concern and all
its assets,
which would have included all documentation and computer
information, were delivered to the applicant.
Consequently,
when the deponent's stated that they perused and familiarised
themselves and have personal knowledge of the principal
debtor's
account and all related agreements and documents including the credit
application, supporting documentation, accounts
and transaction
history as well as the suretyships, there is no reason to suggest
that they were not referring to the documents
and information
relating to the relationship between the applicant and the
respondents which they have in their possession. In
fact, no person
previously in the employ of Imperial Bank would be in a better
position than the deponents regarding the state
of affairs relating
to the respondents.
11.
Secondly, it was submitted by the respondents that,
having regard to the agreement between the applicant and Imperial
Bank, there
was no cession of the specific claim between Imperial
Bank and the respondents. It was submitted that the "business"
and the "assets" which were transferred, do not include the
aforesaid suretyship agreements.
12.
This submission cannot be sustained. Firstly, the
respondents were trade debtors in respect of the business transferred
to the applicant
and as such were specifically mentioned in the
definition of "business" in the aforesaid agreement between
the banks.
It was not necessary, as was submitted on behalf of the
respondents, to mention each and every type of agreement, such
as
lease agreements, credit agreements, suretyship agreements, and
the like, in the aforesaid agreement. The wording of the agreement
is
comprehensive and clearly included the aforesaid agreement with the
principal debtor and the suretyship agreements with the
respondents.
Secondly, a claim by Imperial Bank against a debtor or a surety
clearly constituted an asset of Imperial Bank and
as such formed
part of the assets transferred to the applicant in
terms of the aforesaid agreement.
13.
Thirdly, it was submitted that the copy of the agreement
between the applicant and the principal debtor which was attached to
the
particulars of claim, was not legible and that only the first
page of the suretyship agreement pertaining to the third respondent
was attached to the particulars of claim. Consequently, so it was
submitted, the particulars of claim is excipiable and/or constitutes
an irregular process. In an attached letter of the applicant's
attorney these allegations were denied. Furthermore the annexures
filed in the court file are sufficiently legible and the full version
of the particular session was attached to the particulars
of claim.
In any event, the applicant's attorney immediately forwarded a
legible copy of the agreement and all the pages of the
aforesaid
suretyship agreement to the respondents. During argument the
submissions in this regard were withdrawn and no more needs
to be
said about them.
14.
Lastly, it was submitted on behalf of the respondents
that it was not open to the applicant to simply abandon the assets
which formed
part of the lease agreement without stating why it was
not economically viable to recover such assets. It was further
submitted
that the abandonment of the assets was to the prejudice of
the sureties.
15.
There is no merit in this submission either. The
applicant was entitled to claim the amount claimed in the present
action, from
the principal debtor in terms of the lease agreement. As
such it was entitled to claim the same amount from the respondents
who
were co-principal debtors and sureties. They were liable to the
applicant as much as the principal debtor had been liable to the
applicant. In any event, the respondents did not suggest in
their answering affidavit that they had suffered any prejudice
as a
result of the applicant claiming the balance due to it in terms of
the lease agreement instead of attaching the goods which
were the
subject of the lease agreement.
16.
Having regard to the aforesaid I find that there is no
triable issue between the parties and consequently no reason why
summary
judgement should not be granted in favour of the applicant.
17.
In the result the following order is made:
1.
The respondents are ordered jointly and severally
to pay to the applicant the amount of R135 656,55 together with
interest thereon
at the rate of 2% above the prevailing prime lending
rate from time to time from date of service of the summons to date of
payment.
2.
The respondents are ordered jointly and severally
to pay the costs of the action and the application for summary
judgment on the
scale as between attorney and client.
_________________________
C.P.
RABIE
JUDGE
OF THE HIGH COURT