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[2015] ZAGPPHC 1062
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Nedbank Limited v Tru Essence Products (Pty) Ltd and Another (86612/2014) [2015] ZAGPPHC 1062 (14 July 2015)
IN THE HIGH COURT OF
SOUTH AFRICA
(GAUTENG DIVISION,
PRETORIA)
CASE NO: 86612/2014
DATE: 14 JULY 2015
In the matter between:
NEDBANK
LIMITED
..............................................................................................................
Applicant
And
TRU ESSENCE PRODUCTS (PTY)
LTD
.................................................................
First
Respondent
SUBHASH PREMCHAND
AGARWAL
................................................................
Second
Respondent
JUDGMENT
Baqwa J
[1] This is an application for summary
judgment against the first defendant for the payment in terms of an
overdraft facility and
against the second defendant for payment in
terms of a surety ship agreement.
[2] The applicant/plaintiff seeks
judgment for the outstanding amount of the overdraft facility
together with interest against both
defendants the one paying, the
other to be absolved.
[3] It is common cause that the
respondents have not only filed an appearance to defend and a plea to
the plaintiff’s summons
but also an opposing affidavit to the
application for summary judgment. In that affidavit they seek to
incorporate the contents
of their plea.
[4] Summarised, the defendants raise
the following defences to the applicant’s application:
4.1 The deponent’s lack of
personal knowledge.
4.2 The deponent’s authority to
depose to the affidavit in support of summary judgment.
4.3 Non-compliance with
Section 129
of
the
National Credit Act 34 of 2005
.
4.4 Denial of an oral agreement
granting of the overdraft facility.
4.5 Putting in issue the amount
claimed.
4.6 An allegation that the applicant
placed a moratorium on repayments for a period of 6 months from
October 2014.
[5]
Rule 32
(3)(b) requires an
affidavit from a defendant opposing summary judgment which fully
discloses the nature and grounds for his or
her defence and the
material facts on which it is based. A defendant must satisfy the
court that there is a bona fide defence to
the action. Put
differently, a defendant ought to comprehensively disclose the
material facts upon which his or her defence is
based.
[6] This calls for an analysis of
whether the defences raised by the respondents satisfy the test
referred to.
[7] The deponent states that he is
employed by the applicant as the Legal Recoveries Manager of the
Business Banking Department
and that in that capacity he is
authorised to depose to the affidavit in support of summary judgment.
This is further confirmed
on the Certificate of Balance. He also
states that the relevant file is in his possession and under his
direct control. The fact
that he did not have personal dealings with
the respondent therefore becomes irrelevant. A similar matter was
dealt with by my
brother, Mr Justice Tuchten in the unreported
decision of Standard Bank of South Africa Limited v
Kroonhoek Boerdery CC and Others NGHC
Case no. 235054/2011 in which he held:
“The question, I suggest, is not
the general one whether the deponent can competently testify to all
the documents with her
employer bank but whether she can competently
testify to those relevant to the case in question”
[8] Personal knowledge may also be
gleaned from the deponent’s office or capacity. In President of
the Republic of South Africa
and Others v M & G Media Ltd Ngcobo
CJ held:
The Supreme Court of Appeal held that a
deponent’s assertion that information is within his or her
personal knowledge “is
of little value without some indication,
at least from the context, of how that knowledge was acquired.”
I agree. An indication
of how the alleged knowledge was acquired is
necessary to determine the weight, if any, to be attached to the
evidence set out
in the affidavit. The key question is whether the
deponent would, in the ordinary course of his or her duties or as a
result of
some other capacity described in the affidavit, have had
the opportunity to acquire the information or knowledge alleged. ”
[9] It is also trite knowledge that
companies and firms can also speak through representatives and a
deponent who is an employee
of a company can depose to an affidavit
to enable a court to assess the evidence put before it in order to
make a factual finding
regarding the acceptability or otherwise of
such evidence. First Rand Bank v Beyer
2011 (1) SA 196
(GNP).
[10] Regarding the applicability of the
National Credit Act 34 of 2005 (NCA), the applicant pleads in its
Particulars of Claim that
the annual turnover of the first respondent
was more than R1 000 000.00 alternatively that the agreement
constitutes a large agreement.
It is in any event quite obvious from
the credit facility and the amount claimed that the agreement, which
is not denied by the
respondents, does constitute a large agreement
which would ipso facto preclude the applicability of the
National
Credit Act.
>
[11] The respondents deny having
received legal notice in terms of clause 20 of the deed of surety.
The applicant submits and I
accept that summons does constitute legal
notice.
[12] The inadequacy of the respondent’s
response to the application becomes glaring when one considers the
fact that the respondents
allege that the overdraft facility was in
terms of a written agreement with the understanding that the amount
advanced would be
repaid by the first defendant when the first
defendant was able to do so. A mere production of such agreement by
the respondents
of such an agreement would have put paid to this
application. Yet the respondents do not avail themselves of the
opportunity by
producing the said agreement. This cannot but bolster
the submission by the applicant’s counsel that the allegation
is so
far-fetched and improbable that it may be rejected outright.
[13] Regarding the amount claimed,
correctness of Certificate of Balance and authority of signatories,
clause 6 of the deed of surety
reads as follows:
“The nature and amount of my
obligation, as well as the interest rate payable in respect thereof,
shall be determined and
proved by a certificate purporting to have
been signed by a manager or accountant for the time being of any
branch or the head
office of Nedbank, whose capacity or authority it
will not be necessary to prove.
This certificate or other form of
evidence, as the case may be, will upon the mere production thereof
be binding on me and be proof
of the contents of such certificate on
the face of it and of the fact that such amount is due and payable in
any legal proceedings
against me, and will be valid as a liquid
document against me in any competent court.”
Upon perusal of the Certificate of
Balance it is clear that it was signed by two managers. In terms of
clause 12 of the deed of
surety, the respondents renounced the legal
exception of errore calculi. The respondents’ attempt to escape
liability by
challenging the veracity of the Certificate of Balance
can in these circumstances not succeed.
[14] Further, it is established law
that a defendant who glibly denies knowledge of his indebtedness or
its extent or the correctness
of the amount claimed does not disclose
a bona fide defence. See Jacobsen van den Berg SA (Pty) Ltd v Tritan
Yachting Supplies
1974 (2) SA 584 (0).
[15] The respondents plead that by
mutual agreement by the parties the applicant placed a moratorium on
the repayments for a period
of 6 months from October 2014 and that as
a result the action is premature. This is a contradictio in terminis
in that in the respondents’
plea they allege that the parties
agreed that the first respondent will make repayments when it was
able to do so. Through the
respondents’ own ipsissima verba the
credibility of their allegations is put into serious jeopardy. In any
event, no documentation
is provided to support these bald statements.
[16] In Breytenbach v Fiat SA (Edms)
Bpk 1976 (2) SA 226 (T) it was held that a bald, vague or laconic
affidavit is indicative of
the fact that the defendant wishes to
avoid the dangers inherent in the presentation of a fuller or clearer
exposition of his defence.
[17] Regarding the denial of signing
the surety agreement and the denial that the agreement is authentic
or regular; it is significant
that the respondents on the one hand
deny the deed of surety yet, seek to rely on certain clauses thereof
such as seeking to rely
on clause 20 thereof. This further speaks to
the ambivalence that is notable in the respondents’ plea and
opposing affidavit
which cannot but put the credibility of the
statements therein in question.
The applicant’s counsel submits
and I accept that this defence is also without merit.
[18] Having considered the documents
filed and the submissions by counsel I come to the conclusion that
the respondents have failed
to disclose a bona fide defence and that
they have entered appearance to defend solely for the purpose of
delay.
[19] In the result an order is granted
as follows:
Summary judgment is granted in favour
of the applicant against the first and second respondents for:
(a) Payment in the sum of R3 481
576.84.
(b) Interest on the above amount at the
prevailing prime lending rate as applicable from time to time, which
rate is currently 9.25%
per annum calculated from 18 October 2014 to
date of final payment, both days inclusive.
(c) Attorney and client costs tc
S. A. M. BAQWA
JUDGE OF THE HIGH COURT OF SOUTH
AFRICA
(GAUTENG DIVISION, PRETORIA)
Heard on: 14 July 2015
Delivered on: 14 July 2015
For the Applicant: Adv. JH Roelofse
Instructed by: JF van Deventer
Incorporated
For the First Respondent: Adv. TR
Harris
Instructed by: Dev Maharaj &
Associates