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[2014] ZAFSHC 200
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Malherbe v Absa Bank Ltd (A202/2013) [2014] ZAFSHC 200 (30 October 2014)
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Appeal
No.: A202/2013
In
the appeal between:-
ROELOF
CHARLES MALHERBE
…...................................................................................
Appellant
and
ABSA
BANK LTD
…..............................................................................................................
Respondent
CORAM:
VAN DER MERWE, J
et
VAN ZYL, J
et
MURRAY, AJ
HEARD
ON:
13 OCTOBER 2014
JUDGMENT
BY:
VAN DER MERWE, J
DELIVERED
ON:
30 OCTOBER 2014
[1]
This is an appeal against an order granting summary judgment against
the appellant. The appeal is with the leave of the
court
a
quo
.
[2]
On 15 January 2013 a summons was issued in terms of which the
respondent instituted two claims against the appellant.
Claim 1
was for payment of the amount of R2 488 297,29 together with interest
thereon calculated from 17 August 2012, being the
outstanding balance
of a loan made by the respondent to the appellant and claim 2 was for
payment of the amount of R2 948 869.32
together with the interest
thereon calculated from 1 June 2012, being the outstanding balance
owed by the appellant in respect
of a cheque account with the
respondent. After the appellant entered appearance to defend
the action, the respondent applied
for summary judgment.
Despite the opposition of the appellant thereto, the court
a
quo
granted summary judgment in respect
of both claims.
[3]
The decisive issue in the appeal is whether a
bona
fide
defence to the claims was
disclosed in the answering affidavit of the appellant.
[4]
The test to be applied in summary judgment proceedings when a
defendant relies on a defence based on fact, is trite. The
defendant must satisfy the court that it has a
bona
fide
defence to the plaintiff’s
claims. In order to do so the defendant must make factual
averments under oath which, if
they are proved, would constitute a
defence in law and must set out the averments in such a manner as to
satisfy the court that
the defendant
bona
fide
intends to rely thereon. The
court therefore does not attempt to determine whether there is a
balance of probabilities in
favour of one party or the other.
The degree of particularity in the answering affidavit is
particularly relevant for determination
of the requirement of
bona
fides
. If in all the
circumstances the answering affidavit displays a needless lack of
particularity in respect of the alleged
defence, the court may
conclude that the defence is not
bona
fide
.
[5]
In the present matter the appellant relied on a
pactum
de non petendo
. In the answering
affidavit he explained that he is a grain farmer and gave particulars
of the crop failures that he had
suffered during the 2009/2010,
2010/2011 and 2011/2012 production seasons. He then continued
as follows:
“
5.2.5
As a result of the aforesaid unfortunate state of affairs, I decided
to approach the Applicant in order to discuss my
predicament.
During
SEPTEMBER 2012
I met with the Applicant’s
BILLY
MARX
(herein further referred to as
‘
Marx
’)
in
KROONSTAD
and informed him of the fact that I experienced a complete failure of
crops during the respective production-seasons of the past
three
years;
5.2.6
Marx then suggested that the Applicant suspend any legal action
against me until the end of the production-season of
2012/2013
,
provided that I settle my indebtedness to the Applicant in respect of
the mortgage loan (i.e. the Applicant’s claim 1),
as well as in
respect of the overdraft facility on my cheque account (i.e. the
Applicant’s claim 2);
5.2.7
In response to his suggestion, I informed Marx as follows:
5.2.7.1
During the production-season of
2012/2013
I intend to cultivate
440
hectares of maize and
728
hectares of sunflower;
5.2.7.2
From my maize-harvest I expect to generate an income of approximately
R 4 800 000-00
and from my sunflower-harvest I expect to generate an income of
approximately
R 7 600 000-00
;
5.2.7.3
Bearing my input-costs in the amount of approximately
R
8 000 000-00
in mind, I
therefore expect to make a profit of approximately
R
4 400 000-00
at the end of
the production-season of
2012/2013
.
5.2.7.4
Even if I pay the total amount of
R
4 400 000-00
to the
Applicant, I will still not be able to settle my indebtedness to the
Applicant in respect of both the mortgage loan and
overdraft facility
on my cheque account.
5.2.8
Marx then reconsidered the matter, whereupon he informed me as
follows:
5.2.8.1
Taking the value of my bonded immovable property into consideration,
he is satisfied that the Applicant had sufficient security
in place;
5.2.8.2
The Applicant will therefore not institute legal action for the
enforcement of its rights in terms of the mortgage agreement
(i.e.
the relevant mortgage loan) and credit facility (i.e. the relevant
overdraft facility on my cheque account) before the end
of
DECEMBER
2014
, provided that I pay any and all
outstanding amounts (together with interest) that I owe to the
Applicant in respect of the said
mortgage agreement and credit
facility by the end of
DECEMBER 2014
.
5.2.9
It is therefore my respectful submission that:
5.2.9.1
During
SEPTEMBER 2012
and at
KROONSTAD
the Applicant (as represented by Marx) and I reached a
pactum
de non petendo
in terms whereof the
Applicant and I (
inter alia
)
agreed that the Applicant will not institute any legal action against
me for the enforcement of the Applicant’s contractual
rights in
terms of the relevant mortgage agreement, or in terms of the relevant
credit facility before the end of
DECEMBER
2014
;
5.2.9.2
The Applicant’s action and application under discussion are
therefore premature.”
[6]
The court
a quo
considered the probabilities and concluded that the averments of the
appellant had to be rejected as false. As I have pointed
out
(and as the court
a quo
realised when granting leave to appeal) this approach is not
permissible in summary judgment proceedings and constitutes a
misdirection.
This court must therefore consider the matter
afresh.
[7]
Upon application of the true test it is clear firstly that the
factual averments made by the appellant, if they are true, would
constitute a defence to the action instituted during January 2013 and
particularly to the grant of summary judgment before the
end of
December 2014. Secondly, although the answering affidavit is
not a model of clarity in all respects, it contains sufficient
particularity in respect of the background to and the entering into
of the agreement of September 2012 to satisfy me that the defence
appears to be
bona fide
.
[8]
It follows that the appeal must succeed. Counsel were agreed
that the costs of the application for summary judgment should
be
costs in the action. There is no reason to deprive the
appellant of the costs of appeal.
[9]
The following order is issued:
1.
The appeal is
upheld with costs.
2.
The order of
the court
a
quo
is set
aside and replaced with the following:
“
1.
Summary judgment is refused.
2.
Costs of the application for summary judgment are costs in the
cause.”
________________________
C.H.G.
VAN DER MERWE, J
I
concur.
____________
C.
VAN ZYL, J
I
concur.
______________
H.
MURRAY, AJ
On
behalf of appellant: Adv J.E. Kruger
Instructed
by:
c/o
Graham Attorneys
BLOEMFONTEIN
On
behalf of respondent: Adv P.J. Heymans
Instructed
by:
E
G Cooper Majiedt Inc
BLOEMFONTEIN