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[2016] ZAGPPHC 1229
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Absa Bank Limited v HRM Concrete CC and Others (4498/2016) [2016] ZAGPPHC 1229 (2 July 2016)
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Certain
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REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
CASE
NUMBER: 4498/2016
In
the matter between:
ABSA
BANK LIMITED
(REG
No:
1986/004794/06) Plaintiff
and
HRM
CONCRETE CC
(REG
No:
2007/124929/23) First
Defendant
ANTHONY
MICHAEL WARWICK HEBDEN
(ID
No:
[…]) Second
Defendant
JAN
HOFMAN
(ID
No:
[…]) Third
Defendant
HAARTEBEESPOORT
READYMIX CC
(REG
No:
2005/001235/23) Fourth
Defendant
GAPATSIE
MATTHEW MK
(ID
No:
[…]) Fifth
Respondent
HENNING
OTTO LE GRANGE
(ID
No:
[…]) Sixth
Respondent
BONGANI
KHUMALO
(ID
No:
[…]) Seventh
Respondent
JUDGMENT
KUBUSHl,
J
[1]
The application before me is for a summary judgment in a case in
which the plaintiff s claim against the defendants is for payment
of
the amount of R526 825, 06 representing the balance of the amount
lent and advanced as well as agreed upon debits charged by
the
plaintiff to the first defendant in terms of a loan agreement entered
between the plaintiff and the first defendant.
[2]
It is alleged in the particulars of claim that the aforementioned
amount is due and payable by virtue of the fact that the first
defendant failed to comply with the terms and conditions of the
agreement, alternatively, failed to make repayments as agreed with
the result that the full outstanding amount became due and owing.
[3]
A further averment is that the second, third, fourth, fifth, sixth
and seventh defendants bound themselves as sureties and co-principal
debtors for the due fulfilment of the obligations of the first
defendant towards the plaintiff in terms of written deeds of
suretyship
signed on 4 September 2007 .
[4]
There are two summary judgment applications set down, however, before
me only the summary judgment application against the sixth
defendant
(for convenience I shall refer to him as "the defendant")
is to be heard. The defendant is opposing the summary
judgment
application and does not raise any substantive defence to the merits
of the matter, but, raises what the plaintiff refers
to as contrived
technical defences to the application.
[5]
In his argument in court, the plaintiff s counsel submits that the
defendant is not entitled to raise only technical defences
to the
summary judgment application without disclosing any defence to the
merits of the claim. This submission is not correct.
[6]
It has been said that the court has the power to condone mere
technical non compliance with the provisions of uniform rule
32
(2).
[1]
It has also been held that it is open to a respondent [defendant] in
summary judgment proceedings to attack the validity of the
application on any aspect.
[2]
[7]
I intend therefore to proceed to determine whether or not the
technical points raised by the defendant are valid. The defendant
raises six points
in /imine,
one of which was abandoned at the
commencement of arguments, as follows:
THE
DEPONENT CANNOT SWEAR POSITIVELY TO THE FACTS
[8]
The defendant submits that although the deponent states that the
documents and records in respect of the relationship between
the
plaintiff and the defendant are in her possession and under her
control and that she has access and insight into that documentation
on a continuous basis, she fails, however, to state that she has ever
read the said documentation. The defendant's contention is
that
personal knowledge must appear from other facts stated in the
deponent's affidavit (such as the fact that the deponent
read the
file in question) and that the deponent's allegations as contained in
the affidavit are not sufficient to sustain her
claim that she has
personal knowledge. According to the defendant, the deponent having
not stated that she read the documentation
under her control, failed
to prove that she has personal knowledge as required in uniform rule
32 (2). The defendant's counsel
referred me to the judgment in
Firstrand Bank Limited v Beyer
2011 (1) SA 196
(GNP).
[9]
The submission by the plaintiff is that it is evident from the
application that the deponent has personal knowledge in the
circumstances. Its counsel argued that the deponent stated that she
has insight into the contents of the documentation in her possession
which does not denote cursory reading but perusing and understanding
the contents of the documentation.
[10]
Uniform rule 32 (2) provides as follows:
"The plaintiff shall within 15
days after the date of delivery of notice of intention to defend,
deliver notice of application
for summary judgment, together with an
affidavit made by himself or by any other person who can swear
positively to the facts verifying
the cause of action and the amount,
if any, claimed and stating that is his opinion there is no bona fide
defence to the action
and that notice to defend has been delivered
solely for purpose of delay. . . ."
[11]
Companies, firms and other legal
personae
like the plaintiff, can
only speak and act through a representative and therefore, the
deponent on behalf of such company or legal
persona
has to state unequivocally
that the facts were within his personal knowledge and furnish
particulars as to how the knowledge was
acquired by him so as to
enable the court to assess the evidence put before it and to be able
to make a factual finding regarding
the acceptability of the
supporting affidavit for summary judgment purposes.
[3]
[12]
An analysis and consideration of uniform rule 32 (2) clearly shows
that the court must, from the facts set out in the affidavit
itself,
before it can grant summary judgment, be able to make a factual
finding that the person who deposed to the affidavit, was
able to
swear positively to the facts alleged in the summons and annexures
thereto and be able to verify the cause of action and
the amount
claimed, if any, and was able to form the opinion that there was no
bona fide
defence
available to the defendant and that the notice of intention to defend
was given solely for the purpose of delay.
[4]
[13]
The affidavit in support of the summary judgment application, in this
instance, is deposed to by Deirdre Marchell E'Silva who
describes
herself as a major female in the employment of the plaintiff as
Recovery Specialist: Off Balance Sheet Recoveries Commercial,
Barclays Africa Recoveries. She states as follows in the affidavit:
"1.2 I am duly authorized to make
this affidavit and to launch an application for summary judgment on
behalf of the plaintiff
against the defendants.
1.3 I am responsible for attending to
the matter and as such all the documents and records in respect of
the relationship between
the plaintiff and the defendants are in my
possession and under my control and I have access and insight into
that documentation
on a continuing basis. The indebtedness of the
defendants is apparent from the documentation in my possession and
under my control.
1.4 In the circumstances I have
personal knowledge of the facts underlying the causes of action
against the defendants and can swear
positively to the facts
verifying those causes of action and the amounts due as set out in
the summons issued on behalf of the
plaintiff against the defendants
in the abovementioned matter."
[14]
It is evident from the content of the affidavit that the deponent is
the person responsible for attending to the matter and
as such all
the documents and records in respect of the relationship between the
plaintiff and the defendants are in her possession
and under her
control. She also has access and insight into the documents and
records on a continuous basis. The defendant, however,
contends that
for her to have personal knowledge of the documents she must allege
in her affidavit that she has read the documents.
[15]
I do not think that the said assertion by the defendant is correct.
Sight should not be lost that what is required is for the
deponent to
furnish particulars as to how the knowledge was acquired by her.
In this instance the particulars furnished are
that first, she is the
person responsible for the relationship between the plaintiff and the
defendants , secondly, she is in possession
and control of the
documents and records and thirdly she has access and insight into the
said documents and records. The implication
is that she knows what is
in the documentation and records and can therefore swear positively
thereto. She can only have knowledge
of what is in the documents and
record by having read them. The fact that she alleges that she is in
possession and control and
is also able to access the record suffices
to show that she is able, whenever so required, to read the documents
and records and
have the necessary insight to can depose to an
affidavit. It does not require that she specifically state in the
affidavit that
she read the documentation. I do not understand the
Beyer-judgment, to which the defendant relies for this submission, to
be saying
so as well.
NON-COMPLIANCE
WITH UNIFORM RULE 32
[16]
According to the defendant uniform rule 32 sets out the
jurisdictional facts that must be set out in the application for
summary
judgment in order for the plaintiff to succeed in such an
application. The defendant's contention is that the plaintiff has set
out in its affidavit more allegations than those required by uniform
rule 32. Put differently, is that, the plaintiff has put other
information in the affidavit which is not required by the rule.
[17]
I do not think that this point is sustainable. In fact as the
plaintiff submits the point does not take this matter any further.
The defendant does not say that the defendant has not complied with
the jurisdictional facts of the rule but that more information
has
been added. The jurisdictional facts having been covered in the
affidavit, it means that the other information need only be
ignored.
RELIANCE
ON HEARSAY EVIDENCE BY DEPONENT
[18]
It is the defendant's submission that the plaintiff is relying on
hearsay evidence by producing a certificate of balance which
has not
been signed by its deponent to the founding affidavit to the summary
judgment application. According to the defendant,
since the plaintiff
has not read the certificate of balance it means that she depends on
the knowledge of third parties and it
is not allowed in a summary
judgment application. I do not agree.
[19]
I am inclined to agree with the plaintiffs contention that the mere
production of a certificate of balance is
prima facie
proof of
the facts contained therein. This is in any event covered by the
agreement between the parties. Clause 14 of the suretyship
agreement
states as follows:
'A
certificate signed by the manager of the Bank shall be sufficient
proof of any applicable rate of interest and of the amount
owing in
terms hereof or of any other fact relating to the suretyship for the
purpose of judgment, including provisional sentence
and summary
judgment . . . and if I/we dispute the correctness of such
certificate, I/we shall bear the onus of proving the contrary.
It
shall not be necessary to prove in such proceedings the appointment
or capacity of the person signing such certificate."
This
clause brings this point to rest, in my view.
EXCIPIABILITY
[20]
The defendant's submission on this point is that the plaintiffs
summons is excepiable in that it does not disclose certain
facts
which will enable the defendant to plead thereto. For instance, in
paragraph 1 of the summons it is said that there is no
indication in
what manner the defendant failed to comply with the agreement; there
is also no indication of how much the defendant
failed to pay and as
such, the defendant does not know which case to defend. Defendant
contends that no breach is actually alleged
in the summons.
[21]
The plaintiff s submission on the other hand is that a simple summons
is not a pleading and an exception cannot be taken to
it. As such the
argument is that the defendant's point should be dismissed.
[22]
It is trite that summary judgment cannot be granted in circumstances
where the summons is exceptiable.
[23]
It is common cause that the action in this instance was commenced by
way of a simple summons issued in terms of uniform rule
17 (2)
(b).
[24]
There is plethora of authority that a simple summons is not a
pleading and therefore not susceptible of being attacked by way
of an
exception.
[5]
[25]
In this instance, the defendant, without disputing that the summons
issued against him is a simple summons, contends that not
sufficient
facts have been provided for in the summons to enable him to defend
the matter.
[26]
In accordance with uniform rule 18 (4), every pleading shall contain
a clear and concise statement of the material facts upon
which the
pleader relies for the claim with sufficient particularity to enable
the opposite party to reply thereto. A simple summons
is issued in
terms of uniform rule 17 (2)
(b)
in accordance with Form 9 of
the First Schedule and no particulars of claim are either annexed
thereto or required. The form only
requires that the cause of action
be set out in concise terms. All that is required in setting out the
concise terms of one's cause
of action in a simple summons is to give
a general indication of the claim amounting merely to a label.
[27]
In my view, the defendant is thus correct that he could not have been
able to reply to the summons. What would normally have
happen after
the defendant had filed appearance to defend was for the plaintiff to
file a declaration which would have set out
all the particulars which
would have enable the defendant to plead and/or raise a defence, if
any, against the plaintiff's claim.
On the basis of this technicality
I intend to exercise my discretion in favour of the defendant and not
to allow the summary judgment
application.
[28]
This point is as such dispositive of this matter I do not, therefore,
intend to deal with the other remaining points.
[29]
In the premises I make the following order:
1. The application for summary
judgment is dismissed.
2. The defendant is granted leave to
defend the matter.
3. Costs are costs in the main action.
__________________
E
M KUBUSHI J
JUDGE
OF THE HIGH COURT
APPEARANCES:
HEARD
ON THE: 23 May 2016
DATE
OF JUDGMENT: 02 July 2016
PLAINTIFF'S
COUNSEL: ADV. J. Janse Van Rensburg
PLAINTIFF'S
ATTORNEYS: Tim Du Toit & Co Inc
SIXTH
DEFENDANT'S COUNSEL: ADV. A Nel
SIXTH
DEFENDANT'S ATTORNEY: Philip Du Toit Attorneys
[1]
See Firstrand Bank Limited v Beyer
2011 (1) SA 196
(GNP) para 17
[2]
Mowschenson and Mowschenson v Mercantile Acceptance Corporation of
SA Ltd
1959 (3) SA 362
CN)
[3]
See Firstrand Bank Limited v Beyer above para 19
[4]
See Firstrand Bank Limited v Beyer above para 9
[5]
See the unreported Kwa-Zulu Natal High Court judgment in Icebreakers
No. 83 (Pty) Ltd v Medicross Health Care Group (Pty) Ltd
case no
5551/2010 delivered on 18 February 2011.