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2015
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[2015] ZAFSHC 181
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Standard Bank of South Africa Limited v Joroy 0004 CC t/a Ubuntu Procurem and Another (3048/2015) [2015] ZAFSHC 181 (17 September 2015)
IN THE HIGH COURT OF
SOUTH AFRICA
FREE STATE DIVISION,
BLOEMFONTEIN
Case No.: 3048/2015
DATE: 17 SEPTEMBER 2015
In the matter between:
STANDARD BANK OF SOUTH AFRICA
LIMITED
.............................................................
Plaintiff
And
JOROY 0004 CC t/a UBUNTU
PROCUREM
.................................................................
1st
Defendant
(Reg No 2003/078533/23)
EDNA HELEN HILDA
CAMPANIE
..............................................................................
2nd
Defendant
HEARD ON: 3 SEPTEMBER 2015
DELIVERED: 17 SEPTEMBER 2015
MOKOENA, AJ
[1] This is an application for summary
judgment for: (a) payment in the sum of R140 518,02; (b) interest at
a rate of 15.65% per
annum from 25 November 2014 to date of payment;
(c) costs of suit on an attorney and client scale and (d) further
and/or alternative
relief. The claim is against the first defendant
as principal debtor (being a contracting party to a loan agreement)
and the second
defendant (as surety and co-principal debtor). The
application is opposed.
[2] On or about the 27 July 2012, and
at the plaintiff’s Brandwag branch, the plaintiff entered into
a written application
and credit agreement (“the agreement”)
with the first defendant in terms whereof plaintiff granted a
business current
account facility to the first defendant. Being a
transactional account, the plaintiff would, from time to time, lend
and advance
monies to the defendants under account number 422 204
773. Again, on the 27 July 2012 the plaintiff entered into a written
deed
of suretyship for the maximum amount of up to R500 000,00 (five
hundred thousand rand) with the second defendant as surety and
co-principal debtor.
[3] The issue to be determined is
whether the plaintiff is entitled to summary judgment on the papers
as they stand.
[4] Counsel for the defendants took
four points in limine. The first is that in its particulars of
claim, plaintiff fails to aver
and/or allege, as it is obliged to do,
in terms of Uniform Rule of Court Rule 18(6), whom concluded the
alleged agreement with
the first defendant and contended that the
agreement was not signed by the plaintiff or any person on its
behalf.
It is clear ex facie the agreement
annexed to the particulars of claim that it was signed on behalf of
the plaintiff by the plaintiff’s
representative (SBSA
representative) stating her full names and designation. Accordingly,
this submission is not sustainable.
[5] The second was that plaintiff’s
attempt to or indeed attach to its present application for summary
judgment an annexure
other than a liquid document, which plaintiff is
not entitled or permitted to do in summary judgment proceedings and
which alone,
entitles the court to dismiss the present application
for summary judgment with an appropriate order as to costs is an
abuse of
process and is not permitted.
The plaintiff did not attach any
documents to its application other than an affidavit. Paragraph 4 of
the affidavit attached in
support of the summary judgment application
confirms the cause of the plaintiff’s action together with the
amount claimed
in the summons and reads as follows:-
“I verify the cause of action and
the amount claimed by the applicant to be a certificated amount of
R140 518,02 (one hundred
and forty thousand five hundred and eighteen
rand and two cents) as per annexure “H” on the
plaintiff’s particulars
of claim.”
The said annexure “H” on
the plaintiff’s particulars of claim is a certificate of
balance which plaintiff relies
on to prove its claim against the
defendants. It was not attached to this application but was merely
referred to in the affidavit
attached in support of this application.
Accordingly, this submission is also not sustainable.
[6] The third was, in its action
instituted by way of combined summons, plaintiff only sought payment
of “costs of suit in
the sum of R200 plus sheriff fees”
while now moving in the application for summary judgment plaintiff
seeks a different order
of costs being “costs of suit on an
attorney and client scale”. Counsel for the defendants
submitted that the present
application can for this reason alone, be
dismissed with costs.
While I agree with defendant’s
counsel that an application for summary judgment or the hearing of
such application is not
the appropriate forum for allowing the
plaintiff to amend its papers, cause of action or relief sought, in
casu, the plaintiff
did not formally seek an amendment of the relief
sought and in my view, this is no reason per se for refusing summary
judgment.
In summary judgment applications, the plaintiff can only
seek relief as is prayed for in the summons. Accordingly, this
submission
is not sustainable.
[7] The fourth was that in its
affidavit in support of the present application the deponent for
plaintiff states that “…
in my opinion, the respondents
do not raise a bona fide defence to the applicant’s claim …”
while the heading
of the affidavit neither provides for an applicant
or respondent, deponent for plaintiff should have rather stated, as
is required
by the Rule 32, that “… that in his opinion
there is no bona fide defence to the action and that notice of
intention
to defend has been delivered solely for purpose of delay…”
It is clear that the use of the word
“applicant” and “respondent” is purely an
error and in my view, anyone
reading these papers will in no doubt
realise that the use of the words “plaintiff” and
“defendants” were
intended. These are the type of errors
which were dealt with in Standard Bank of South Africa Ltd v Roestof
2004 (2) SA 492
at 496B-C.
The points in limine are therefore
dismissed.
[8] Turning to the merits of the
present application, first and second defendant have not only filed
an answering affidavit in opposition
to the present application for
summary judgment, but have also served and filed a notice in terms of
Uniform Rule of Court 23(1)
to the plaintiff’s particulars of
claim notifying the plaintiff that defendants hold the view that
plaintiff’s particulars
of claim is vague and embarrassing due
to a number of technical deficiencies and giving the plaintiff an
opportunity to rectify
same. Counsel for defendants submitted that
it is open for defendants in summary judgment proceedings not only to
oppose such
application by way of the filing of an answering
affidavit addressing the merits of plaintiff’s claim, but also
base their
opposition to such application on the excipiability or
irregularity of the plaintiff’s claim as formulated.
[9] Uniform Rule of Court 23(1) states
that:
“Where any pleading is vague and
embarrassing or lacks averments which are necessary to sustain an
action or defence, as the
case may be, the opposing party may, within
the period allowed for filing any subsequent pleading, deliver an
exception thereto
and may set it down for hearing in terms of
paragraph (f) of subrule (5) of rule (b); Provided where a party
intends to take an
exception that a pleading is vague and
embarrassing he shall within the period allowed (my emphasis) as
aforesaid by notice afford
his opponent an opportunity of removing
the cause of complaint within 15 days: Provided …”
In this case the summons provide that
first and second defendants had 20 (twenty) days after filing and
serving their notice of
intention to defend to file with the
Registrar and serve upon the plaintiff a plea, exception, notice to
strike out, within or
without a counterclaim.
[10] The first and second defendants
filed and served their notice of intention to defend on 14 July 2015
and as such had until
12 August 2015 to file and serve their
exception. The defendants only filed and served their notice of
exception on 14 August
2015. Accordingly, there was no proper
exception and the submission by defendant’s counsel that the
defendants can still
persist with their exception in these
proceedings cannot be correct.
[11] Counsel for plaintiff submitted
that the first and second defendants (a) have not brought the
payments under the credit agreement
up to date and (b) have received
a loan from the plaintiff and have failed and/or neglected to pay it
back.
[12] It is important to mention that
plaintiff’s cause of action in its particulars of claim is
mainly premised on the following
averments: that the plaintiff “…
duly represented, entered into a written application and credit
agreement (“the
Agreement”), with the first defendant,
duly represented by the second defendant …”; that “…
A true
electronic copy of the written portion of the credit agreement
are attached hereto and marked annexure “C”…”;
that “… Plaintiff would from time to time cause to be
delivered, to the first defendant, statements reflecting the
current
outstanding balance/amount due and payable by the first defendant and
further reflecting when such periodical payments
are due, copies of
such statement results, are attached hereto marked annexure “G”,
… it can be seen that no
positive payments were made toward
the said account as from this said date;” [as stated in
paragraph 6 of the particulars
of claim].
[13] The relevant annexure “G”,
titled “Account Analysis Enquiry Result, reflected certain
information such as
(a) latest balance, (b) overdraft rate, (c)
interest amount, (d) commitment active, (g) date last deposit and (h)
expiry date.
Contrary to what has been alleged in
the plaintiff’s cause of action as stated above, the content of
annexure “G”
does not appear to record or reflect for
example the (a) amount due and payable by the first defendant, (b)
periodical payment,
(c) when such periodical payment are due, but
rather pertains to the resolution of an account analysis enquiry
wherein the total
full outstanding amount as claimed in the summons
is reflected.
[14] Annexure “G” does not
reflect the full transaction history and as such it is even difficult
for this court to decipher
from its contents how the amount of R140
518,02 was computed.
It is appropriate to mention that
annexure “G” has (a) the date of last statement as
21.11.2014, (b) date of next statement
as 21.12.2014 and (c) date of
last deposit as 22.11.2014 being the day after the last date of
statement issued. It is therefore
clear ex facie annexure “G”
that monies were deposited on the 22.11.2014 however, the amount
deposited has not been
reflected. The statement of the 21.12.2014
was not attached and as such it is not clear whether the defendants
did pay on the
19 December 2014 or not.
[15] Counsel for first and second
defendant made the following submissions:
(a) that the defendants deny having
failed and/or neglected to make any periodical payment to plaintiff
as a result of which, the
full outstanding balance as alleged, is due
and payable.
I have already dealt with this this
submission above.
(b) The first defendant has made at
least five (5) separate payments to plaintiff on the account
totalling R10 000,00 and R2 000,00
on 19 December 2014 being the date
after issue of the certificate of balance (annexure “H”
to the plaintiff’s
particulars of claim) and therefore disputes
the correctness of the amount claimed by the plaintiff in these
proceedings.
This allegation has not been
substantiated and accordingly is not sufficient proof that payment
has been made by the defendants
to the plaintiff.
(c) The first defendant is in breach of
the agreement in terms of which the facility was extended to it by
the plaintiff or that
first defendant or second defendant have
breached any agreement entitling the plaintiff to claim the full
balance.
(d) The defendants have not received
any notice from plaintiff (prior to receipt of the section 129
notice) claiming that they are
in breach or default of any agreement.
[16] In conclusion, counsel for
defendants submitted that in the light of the above submissions, the
defendants have a bona fide
defence to the alleged claim of the
plaintiff and requested that the plaintiff’s application be
dismissed with costs.
[17] I pause to mention that clause 6.1
of the credit agreement states as follows:
“This loan has no fixed term but
is reviewable annually and is payable in full on demand in the
circumstances outlined in
clause 9 of Part B.”
Clause 9 of Part “B” of the
agreement to the extent relevant, reads as follows:
“9. Default
9.1 Default in terms of this Agreement
will occur if:
9.1.1 you fail to make payment, in
full, on or before the payment date, of any amount owing by you; or
9.1.2 you breach this Agreement, or any
other Agreement between us, and you fail to remedy the breach within
the time period specified
in our written notice to you; or
9.1.3 …
9.1.4 …
9.1.5 …
9.1.6 …
9.1.7 …
9.1.8 …
9.1.9 …
9.1.10 …
9.1.11 …
9.1.12 any surety in respect of this
Agreement:
9.1.12.1 fails to satisfy their
suretyship commitment when requested to do so; or
9.1.12.2 commits any breach of their
obligations to us, whether as surety or otherwise, or
9.1.12.3 …
9.1.13 …
9.2 If you default in your obligations
under this Agreement we will:
9.2.1 provide you with written notice
of such default requesting that you rectify the default, and/or
9.2.2 suspend the credit limit, or
reduced the credit limit, or your account and/or
9.2.3 withdraw the credit limit, by
giving you 10 (ten) business days written notice; and/or
9.2.4. …
9.2.5 …
9.2.6 …
9.3 …
9.4 In the event of default, we may, at
our election and without affecting any other rights that we may in
terms of this agreement
or otherwise, recover from you payment of all
amounts owing under this agreement (whether then owing or not) by
adhering to the
default procedure described above.
9.5 The above default clauses and
default procedure will not apply if:
9.5.1 you generally do or omit to do
anything which may cause us to suffer any loss or damage; or …”
[18] Plaintiff did not provide this
court with periodical statements showing that the defendants were in
breach of their payment
obligations thereby entitling it of immediate
payment of the full outstanding balance. It also failed to allege
having complied
with its own default procedures.
[19] In essence, the first and second
defendant’s contention is that plaintiff’s pleadings are
technically incorrect
and rely on the decision of Gulf Steel (Pty)
Ltd v Rack-Rite Bop (Pty) Ltd & Another
1998 (1) SA 679
(O) where
it was stated at 684A that:
“Even if a defendant fails to put
up any defence or puts up a defence which does not meet the standard
required of a defendant
to resist summary judgment, summary judgment
should nevertheless be refused if the plaintiff's claim is not
clearly established
on its papers and its pleadings are not
technically in order and in compliance with the Rules of Court.”
In Mowschenson and Mowschenson v
Mercatile Acceptance Corporation of SA Ltd
1959 (3) SA 362
(W) at
366E-F it was said:
“The remedy for summary judgment
is an extraordinary remedy, and a very stringent one, in that it
permits a judgment to be
given without trial. It closes the doors of
the court to the defendant. That can only be done if there is no
doubt but that the
plaintiff has an unanswerable case. If it is
reasonably possibly that the plaintiff’s application is
defective or that the
defendant has a good defence, the issue must,
in my view, be decided in favour of the defendant.”
[20] I am of the view that the
plaintiff has a challenge with annexure “G” which is a
critical component of its pleadings.
The document does not reflect
the information it purports to contain and as such renders the
plaintiff’s application reasonably
possibly defective. This
court cannot grant summary judgment considering that the plaintiff’s
pleadings are not entirely
technically correct and this is
prejudicial to the defendant.
[21] It follows therefore that having
arrived at this conclusion, it does not become necessary for this
court to determine whether
the defendant has disclosed a bona fide
defence in the opposing affidavit because, once a court arrives at a
conclusion that there
is a reasonable possibility that the
plaintiff’s case is defective, the application for summary
judgment ought to be dismissed.
See Mowschenson supra.
[22] In the circumstances the following
order is made:
(a) The application for summary
judgment is dismissed with costs.
(b) Defendant is granted leave to
defend the action.
R. MOKOENA, AJ
On behalf of the plaintiff: Adv. P.
C. Ploos van Amstel
Instructed by: Matsepes Inc.
BLOEMFONTEIN
On behalf of the Defendants: Adv. C.
Snyman
Instructed by: Blair Attorneys
BLOEMFONTEIN