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[2016] ZAGPPHC 396
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Standard Bank of SA Limited v Redmond (80438/2015) [2016] ZAGPPHC 396 (2 June 2016)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
CASE
NO: 80438/2015
DATE:
2/06/2016
(1
) REPORTABLE: NO
(2)
OF INTEREST TO OTHER JUDGES: NO
STANDARD
BANK OF SA
LIMITED
Applicant/Plaintiff
and
JONATHAN
DRENNAN REDMOND
Respondent/Defendant
JUDGMENT
KHUMALO
J
[1]
This is an application for Summary Judgment. The Applicant instituted
an action against the Respondent claiming payment of monies
owed to
it by a company called J & S Cylinders {Pty) Ltd, ("Cylinders")
the principal debtor, on behalf of whom the
Respondent signed a
suretyship agreement binding himself as co-principal debtor
in
solidum
with Cylinders for any debts that arises from Cylinders'
use of a Business Cheque Account Cylinders held with the Applicant. A
copy
of the sureytship agreement was annexed to the summons.
[2]
Preceding the institution of the action was the liquidation of
Cylinders, the principal debtor, on 10 April 2015. At the time
the
amount by which Cylinders was indebted to the Applicant arising from
such use of the Business Cheque Account ("the account")
was
certified by a certificate of balance by a manager from the Applicant
to have been an amount of R274,686.63 together with interest
thereon
at the rate of 22.65% per annum from 25 July 2015 to date of payment.
A copy of the certificate is also annexed to the
summons.
[3]
Reliant upon the liquidation of Cylinders and the terms of the
suretyship agreement, the Applicant has in its summons sought
to
enforce the suretyship agreement pleading therein that in terms of
the suretyship agreement the Respondent agreed:
[3.1]to
bind himself as surety and co-principal debtor
in solidum
with
Cylinders for its indebtedness towards the Plaintiff,
howsoever
arising,
including present and future debts of any kind (which
would include monies lent and advanced or overdrawn on the account);
[3.2]
that in the event of the liquidation of Cylinders, the failure of the
Applicant to prove its claim against Cylinders in liquidation
to the
full extent thereof, or at all, shall not detract from the right of
the Plaintiff to recover from the Defendant the full
amount for which
the Respondent is bound under the suretyship.
[3.3]
that a certificate signed by any manager or branch administrator of
the Plaintiff, whose appointment need not be proved, as
to the amount
owing to the Plaintiff by Cylinders and or Respondent at any time,
the fact that such amount is due and payable,
the rate of interest
payable thereon and the date from which such interest is reckoned
shall be binding on the Respondent and shall
be
prima facie
proof
of the facts stated therein.
[3.4]
The amount recoverable by the Applicant in terms of the Deed of
suretyship shall be
unlimited,
including interest on an unpaid
interest and legal costs of recovery on the attorney and client
scale, including collection commission.
[3.5]
The Respondent renounced the benefits of excussion and division and
all other benefits and legal exceptions that could or
might be raised
or pleaded by the Respondent in answer to any claim.
[4]
The Applicant alleges that all amounts due and owing on the Business
Cheque Account became immediately due and payable as stated
in the
suretyship agreement.
[5]
The Respondent has raised the following point
in limine,
against
the Application that: [4.1] the verifying affidavit in support of a
summary judgment application is defective as it does
not appear to
have been signed before a commissioner of oaths. The deponent signed
same on 4 December 2015 at Johannesburg, whilst
the commissioner of
oaths signed it at Pretoria.
BONA
FIDE DEFENCE
[6]
Furthermore, the Respondent contends that the particulars of claim
are excipiable, in that the Applicant failed to attach the
principal
overdraft agreement (the Business Cheque Account agreement} or to
plead the terms of such an agreement and as such the
cause of action
is incomplete.
[7]
He also denies that he entered into a suretyship agreement with the
Applicant, alleging not to have no knowledge of the suretyship
agreement in that the contents thereof were never at any stage
explained to him or informed that he was in fact signing a suretyship
agreement.
[8]
The point
in limine
was decided in favour of the Applicant.
The reasons only following in this judgment. According to the
certificate on the verifying
affidavit, the commissioner of oaths
certified that the deponent has acknowledged that he knows and
understands the contents of
the affidavit which has been signed and
sworn to in his presence at Johannesburg on this 4th day of November
2015. The commissioner
then appended his stamp of office that had his
full names, business address in Pretoria and the office held by him,
(designation)
his appointment being held
ex officio.
[9]
The attestation to affidavits is governed by the Regulations
Governing the Administration of an Oath or Affirmation (RGAOA)
promulgated by the President in terms of s 10 of the Justices of
Peace and Commissioners of Oaths Act 16 of 1963.
[10]Regulation
4 thereof reads:
(1)
Below the deponent's signature or mark the commissioner of oaths
shall certify that the deponent has acknowledged that he knows
and
understands the contents of the declaration and he shall state the
manner, place and date of taking the declaration.
(2)
The commissioner of oaths shall-
(a)
sign the declaration and print his full name and business address
below his signature; and
(b)state
his designation and the area for which he holds his appointment or
the office held by him if he holds his appointment
ex officio.
[11]
With regard to Regulation 1-4, the court has a discretion to refuse
to receive an affidavit attested otherwise than in accordance
with
the regulations depending upon whether substantial compliance with
the regulations has been proved or not; See
5 v Kahn
1963 (4)
SA 897
(A) at 900C.
[12]
The provisions are straightforward, the business address in that
context is said to signify the address at which a person carries
on
business hence furnishing a postal address is not full compliance. It
has got nothing to do with the manner, place and date
of taking the
declaration which is provided for in the commissioner's certificate.
The contention by the Respondent that the business
address denotes
where the commissioner of oaths appended his signature is therefore
not a valid argument (see Erasmus Superior
Court Practice 2nd Ed, Van
Loggerenberg at 03-1. The commissioner has certified that the
affidavit was sworn to in his presence
on the date at the specific
place metioned.
[14]
The Respondent also referred to an unreported case in this Division
by Ranched J that addressed non- compliance with the regulations,
the
case of
Ingersoll Rand Company SA (Pty) Ltd v Frandcorp
CC,Case
no: 40111/2015 delivered on 23 October 2015. A party disputed that
the deponent to an affidavit signed in the presence of
the
commissioner. The facts of the matter were different in that the date
on the certificate that which the commissioner declared
to be the
date of deponent's signature of the affidavit differed from the date
on the stamp that was affixed on the certificate
to indicate the date
on which the commissioner signed and completed his particulars. The
certificate stated that deponent signed
the affidavit on 5 July 2015
whilst the stamp affixed on signature by the comm1ss1oner had 6 July
2015. The handwriting that completed
the certificate seemed different
to that of the commissioner of oaths that had a different date. The
court held that in the absence
of a verifying affidavit from the
deponent or commissioner the inference should be that the deponent
did not sign in the presence
of the commissioner. A correct decision
however oblivious to the fact that summary judgment proceedings do
not allow any further
affidavit other than an affidavit verifying the
cause of action and that the Defendant has no defence.
[15]
All the same, compliance with the provisions of Regulation 3 (1) that
requires that the deponent sign the declaration in the
presence of
the commissioner of oaths has been held not to be peremptory; see
Cape sheet Metal Works {Pty) Ltd v J J Calitz Building (Pty} Ltd
1981 (1) SA 697
(O) at 699B. However
in casu
that has not
been the case, the commissioner
ex officio
indicated the
affidavit to have been signed before him in Johannesburg.
[16]
In addition, unless a commissioner hold his appointment for a
specific area not ex officio, his attestation outside the area
for
which he holds office in that instance will not be in compliance with
the regulations. The commissioner of oaths that holds
his appointment
ex officio can sign affidavit anywhere in the Republic.
[17]
The Respondent's point
in limine
in that regard was therefore
dismissed.
EXCEPTION
[18]
Furthermore, the Respondent contends that the particulars of claim
are
excipiable,
in that the Applicant failed to attach the
principal overdraft agreement (the Business Cheque Account agreement)
or to plead the
terms thereof, therefore its cause of action
incomplete.
[19]
In respect of the Applicant's failure to annex the Business Cheque
Account that gave rise to the debt or to plead the terms
of such an
agreement, the Respondent refers to s 18 (6) of the High Court Rules
that provides as follows:
"A
party who in his pleading relies upon a contract shall state whether
the contract is written or oral and when, where and
by whom it was
concluded, and if the
contract is written a true copy thereof
or of the part relied on in the pleading shall be annexed to
the
pleading."
[20]
A party who uses a contract as a link to the event that gives rise to
the liability of the alleged debtor he is suing "relies
on that
contract" as is stated in subsection 6. See
South African
Railways and Harbours v Deal Enterprises Pty Ltd
1975 (3) SA 944
(W) at 953A. In that instance he would be required then to annex a
true copy thereof or of the part relied upon. In instances where
such
a contract has been lost or destroyed it has been held that failure
to do so will not be regarded as fatal to the Plaintiff
s claim in
certain instances and could be condoned (see
Moosa and OTHERS NNO
v Hassam and others NNO
2010 (2z) SA 410
(KZP) .
[21]
The Applicant's particulars of claim sets out that as a result of the
principal debtors' liquidation it has become entitled
to recover the
money that is owed to it under the Business Cheque Account as
per
provisions of the suretyship agreement. Applicant's right to
claim against the Respondent is therefore based upon the provisions
of a suretyship agreement that was concluded between itself and the
Respondent that provided for the stated eventuality, the liquidation
of the principal debtor. In other words Applicant's cause of action
is based on the terms of the suretyship and liquidation. A
copy
thereof has been annexed to the summons. It is therefore the document
that links the Respondent to the Applicant for the indebtedness
of
Cylinders, the principal debtor. The suretyship agreement constitutes
the names of the creditor, the principal debtor with whom
the surety
binds himself, the surety and the terms of Respondent's liability and
its extent that is determined by the certificate
as referred to in
the suretyship, pleaded by the Applicant. It is therefore the vital
link in the cause of action. The Respondent's
liability to the
Applicant therefore stems from this suretyship, without it there
would be no link of the Respondent to Applicant.
[22]
The ground for the Applicant to hold the Respondent liable is because
of the suretyship that he signed binding himself as a
co-principal
debtor to the Applicant for any indebtedness howsoever arising
between the Applicant and Cylinders. Therein lies the
cause of action
of the Applicant. The indebtedness of the principal debtor and its
extent is also vital in elucidating the cause
of action of the
principal debtor. The certificate of balance confirms such
indebtedness and its extent, which certificate is also
annexed to the
summons.
[23]
The Applicant has therefore adequately pleaded its cause of action
having adequately indicated the nature, extent and grounds
of its
action. It did mention that the amount that is due and payable was
the amount used by the principal debtor from the Business
Cheque
Account at the time of its liquidation that is reflected in the
certificate of balance, the latter being the event upon
which the
Applicant is reliant as part of his cause of action
{making
the amount immediately payable) against the Respondent as surety. The
essential terms of the contract of suretyship are
the identity of the
creditor, the identity of the debtor, the identity of the surety and
the nature and amount of the principal
debt. The agreement states
that the certificate of balance will
prima facie
be sufficient
proof
[24]
Cylinders' use of the Business Cheque Account is mentioned by the
Applicant in its particulars and pleaded as the transaction
from
which Cylinders not the Respondent's indebtedness arose, however it
is the liquidation of Cylinders that triggered the enforcement
of the
suretyship agreement. For that reason the Applicant's cause of action
is based on the liquidation as is provided for by
the terms of the
suretyship agreement. The Business Cheque Account is therefore not a
vital link to the chain of cause of action
and reference thereto in
the pleadings is adequate, pleading of its terms would amount to
over-pleading.
[25]Ambiguity
on its own is not sufficient. There must be evidence that the
opposing party will be seriously prejudiced if the relevant
portions
in the particulars are allowed to stand. The case that Respondent is
faced with is clear from the certificate of balance
read with the
relevant clauses in the suretyship agreement and as pleaded in the
particulars of claim. The ambiguity and vagueness
pleaded by the
Respondent fails to go to the root of the action as indicated in the
matter of
Jowell v Bronwe/1-Jones
1998 (1) SA 836
(W) at 899
-903.
[26]
The terms of the Business Cheque Account are therefore not necessary
to be pleaded against the surety. Failure therefore to
do so or annex
a copy is not fatal to the Applicant's Application.
SIGNING
THE SURETYSHIP AGREEMENT
[27]
The Respondent denies that he entered into a suretyship agreement
with the Applicant, alleging to have no knowledge of the
suretyship
agreement in that the contents thereof were never at any stage
explained to him or informed that he was in fact signing
a suretyship
agreement.
[28]
The suretyship agreement is a separate document,
ex facie
with
a very clear and unambiguous heading that reads "Suretyship in
favour of Standard Bank of South Africa". The document
could not
be mistaken for any other thing except for what it reads to be in
terms of its heading and contents. The Respondent does
not explain
why notwithstanding such reference and contents on the document as a
suretyship he would not have been aware that he
is signing a
suretyship or he would have needed to be told that it is a suretyship
agreement. He does not explain the circumstances
that made him not to
be aware that he is signing a suretyship agreement.
[29]
Further, the Respondent initialed each and every page of the document
that he alleges was not aware of, and on the last page
of the
document there is a space for execution of the suretyship provided,
for signature by the sureties who at the time seem to
have been more
than one. The paragraph begins with a sentence that reads "the
suretyship is signed by each surety as follows."
The Respondent
affixed his full signature under that clause as Surety No 1and
furnished his address where it says' Street address
of surety'. Such
details illustrates that it is improbable that the Respondent would
not have been aware that he is signing as
surety.
[30]
The mystery remains that if he was not aware that he was signing the
suretyship agreement then he has to explain the document
he signed on
15 January 2001consenting to the release of the other surety from the
operation or obligation of the suretyship.
[31]
Since this is a summary judgment application, the defence is raised
in an affidavit opposing summary judgement whereupon the
respondent
has got to show its
bona
fide.
It must fully disclose
the nature and grounds of his defence and the material facts upon
which it is fuunded. The Respondent had
an opportunity to place
evidence on oath before the court substantiating their defence and
demonstrating their bona fides in this
regard. The court cannot
speculate that the Respondent might reveal a good explanation why it
happened when the matter goes to
trial. No facts are disclosed in
that regard. The The defence lacks substance and cannot be said to be
devoid of any
ma/a
/ides.
Respondent is not challenging
the relief sought against him on the basis that he never intended
entering into a suretyship agreement.
[32]
The Respondent has failed to disclose a defence that is
bona fide
or good in law in his opposing affidavit, which if it is proved
at the trial, will constitute a defence to the Applicant's claim.
He
only raised technical defences that are indicative of an attempt to
frustrate and delay the Applicant. The exercise of my discretion
is
not to acquiesce to the request for a refusal of summary judgment in
favour of the Respondent, as the facts deposed to in the
affidavit do
not suggest a reasonable possibility that the Respondent may have a
defence against the claim of the Applicant.
[33]
The purpose of a summary judgment, as submitted on behalf of
Applicant with reference to the matter of
Meek v Kruger
1958
(3) SA 154
{T) at 159H -160A is to assist an Applicant where
Respondent who cannot set up a bona fide defence or raise an issue to
be tried,
enters appearance simply to delay judgment. Which is the
case in this matter.
[34]
I therefore make the following order: [34.1] Judgement is granted as
follows
[34.1.1]
Payment of the sum of R274,686.63;
[34.1.2]
Interest on the amount of R274,686.63 calculated at the rate of
22.65% per annum from 25 July 2015 to date of full and
final payment;
[34.1.3]
payment of the costs of suit.
____________________
N
V KHUMALO J
JUDGE
OF THE HIGH COURT
GAUTENG
DIVISION, PRETORIA
On
behalf of Applicant:
Adv
A VAN NIEKERK
Instructed
by: Findlay
& Niemeyer Inc
Ref:
M Ludik
(012)
342 9164
On
behalf of
Respondents:
Adv B STEVENS
Jurgens
Bekker Attorneys
Ref:
A De Agrela
[e-mail
address]