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[2013] ZAGPPHC 185
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Standard Bank of SA Ltd v Park Boulevard Trading 53 CC and Another (20713/2013) [2013] ZAGPPHC 185 (5 July 2013)
REPORTABLE
IN
THE HIGH COURT OF SOUTH AFRICA (NORTH GAUTENG, PRETORIA)
CASE
NO: 20713/2013
DATE:05/07/2013
In
the matter between:
THE
STANDARD BANK OF SA
LIMITED
..................................
PLAINTIFF/APPLICANT
and
PARK
BOULEVARD TRADING 53 CC
......................................
FIRST
DEFENDANT/RESPONDENT
CAREN
ESTELLE LABUSCHAGNE
..........................................
SECOND
DEFENDANT/RESPONDENT
JUDGMENT
KUBUSHI,
J
[1] This is an opposed
summary judgment application. The plaintiffs claim is based on an
acknowledgment of debt signed on behalf
of the first defendant by the
second defendant. The second defendant also signed an unlimited
suretyship in favour of the plaintiff
for the debt of the first
defendant as security for repayment by the first defendant.
[2]
In resisting the application the defendants have raised various
defences in limine and also on the merits. In particular they
are
challenging the quantum of the indebtedness alleged by the plaintiff.
Their defence is that they have not agreed to the use
of a
certificate of balance as prima facie proof of their indebtedness and
disputes the correctness and accuracy of the alleged
default and
indebtedness.
[3]
Without having to decide on the points in limine I find that the
defendants have raised a bona fide defence which is good in
law and
if raised at trial it may constitute a defence to the applicant's
claim.
[4]
In a summary judgment application, where the question of whether the
respondent has a bona fide defence arises, the court does
not attempt
to decide the issues or to determine whether or not there is a
balance of probabilities in favour of the one party
or the other. The
respondent is also not required to persuade the court of the
correctness of the facts stated by him or her or
where the facts are
disputed, that there is a preponderance of probabilities in his or
her favour. All that a court requires, in
deciding whether the
respondent has set out a bona fide defence, is:
a.
whether the respondent has disclosed the nature and grounds of his or
her defence, and
b.
whether on the facts so disclosed the respondent appears to have, a
defence which is bona fide and good in law. It is sufficient
if the
respondent swears to a defence, valid in law, which if advanced may
succeed on trial.
See
MAHARAT v BARCLAYS NATIONAL BANK LTD
1976 (1) SA 418
(A) at 426A - E,
MARSH v STANDARD BANK OF SA LTD
2000 (4) SA 947
(W) at 949E - F and
NAIR v CHANDLER
2007 (1) SA 44
(T) at 47B -C.
[5]
Summary judgment being an extraordinary stringent remedy, it should
be granted only where there is no doubt that the applicant
has an
unanswerable case. Where doubt exists it must be refused. See TESVEN
CC & ANOTHER v SOUTH AFRICAN BANK OF ATHENS
2000 (1) SA 268
(SCA]
at 277H - 278A.
[6]
As regards the issue of costs my view is that an appropriate cost
order should be costs in the cause.
[7]
In the premises I make the following order:
a.
The application for summary judgment is dismissed.
b.
The defendants are granted leave to defend the matter.
c.
Costs are costs in the cause.
EM
KUBUSHI
JUDGE
OF THE HIGH COURT
Appearances:
HEARD
ON THE : 04 JULY 2013
DATE
OF JUDGMENT : 05 JULY 2013
APPLICANTS’
COUNSEL : ADV M. RILEY
APPLICANTS’
ATTORNEY: STRYDOM BRITZ MOHULATSI INC
RESPONDENT'S
COUNSEL: ADV A. WIID
RESPONDENT'S
ATTORNEY : CHRISTO BOTHA ATTORNEYS