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[2013] ZAGPPHC 258
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Firstrandbank Ltd t/a RMB Private Bank v Van Zyl and Others (34107/2013) [2013] ZAGPPHC 258 (28 August 2013)
NOT
REPORTABLE
IN
THE NORTH GAUTENG HIGH COURT,
PRETORIA
(REPUBLIC OF SOUTH AFRICA)
Case
number: 34107/2013
DATE:
28/08/2013
In
the matter between:
FIRSTRANDBANK
LTD t/a RMB PRIVATE
BANK
..............................................
PLAINTIFF
and
ALBERT
MARTHINUS VAN
ZYL
…........................................................
1ST
DEFENDANT
STEYN
POTGIETER
....................................................................................
2nd
DEFENDANT
JACOBUS
DANIEL
PIENAAR
....................................................................
3rd
DEFENDANT
EDWARD
CHURCHILL
ORSMOND
...........................................................
4
th
DEFENDANT
MARTHINUS
JOHANNES
MILLARD
..........................................................
5
th
DEFENDANT
JACOBUS
HENDRIK DE
JAGER
…..........................................................
6
th
DEFENDANT
WILLEM
CALVYN
BOTHA
…......................................................................
7
th
DEFENDANT
BLUEVEST
(PTY)
LTD
.................................................................................
8th DEFENDANT
Date
heard: 26 August 2013
Date
of judgment: 28 August 2013
JUDGMENT
VAN
NIEKERK J
[1]
The plaintiff seeks summary judgment against the first and third to
eighth defendants (’the defendants’), jointly
and
severally, for payment in the amount of R 7 319 149.31 plus interest
at 10.50% from 3 April 2013 until date of payment. The
plaintiffs
claim against the defendants is based on deeds of suretyship that the
plaintiff avers were provided by the defendants
in favour of the
plaintiff to secure the indebtedness of Amber Falcon Properties 127
(Pty) Ltd (‘the principal debtor’).
[2]
The plaintiffs cause of action is set out in the simple summons in
terms of which it initiated proceedings against the defendants
on 31
May 2013. The summons makes reference to a ‘single credit
facility agreement’ entered into between the plaintiff
and the
principal debtor, signed on 10 September 2010. A copy of the
agreement is annexed to the summons. The plaintiff avers that
the
defendants are liable by virtue of the single credit facility
agreement, suretyship agreements signed by each of the defendants
and
certificates of indebtedness, also annexed to the summons.
[3]
Each of the defendants signed, as an integral part of the agreement
concluded between the plaintiff and the principal debtor
on 10
September 2010, what is termed a ‘surety consent’. The
consent, contained in an unnumbered paragraph at the foot
of the
agreement, reads as follows:
‘
We,
the undersigned, being duly authorised, hereby acknowledge and agree
that our obligations in terms of the suretyship agreement
dated 7
August 2008, 6
August
2008, 6 August 2008, 7 August 2008, 6 August 2008, 12 August 2008, 6
September 2008, 6 September 2008 and 6 August 2008 respectively
shall
extend to this RMB Private Bank Single Facility.
This
acknowledgment shall not be construed as substituting, varying or
novating any of our existing obligations in terms of the
suretyship
agreement save as provided for in this letter.’
[4]
The deeds of suretyship annexed to the summons are cast in identical
terms; all of them signed in mid-April 2010. In each case,
the
defendant concerned binds himself as surety for the principal debtor,
in favour of the plaintiff. The suretyship is not unlimited.
Clause
24 of each deed of suretyship reads as follows:
‘
Our
liability in terms of the Suretyship shall be limited to the payment
of all sums due or to become due to RMB Private Bank by
the Debtor in
terms of or arising out of the RMB Private Bank Single Credit
Facility dated 12 April 2010 notwithstanding anything
to the contrary
contained in this suretyship.'
[5]
In the present proceedings, the plaintiff relies specifically on
clause 4.1 of the agreement signed on 10 September 2010. The
clause
reads as follows:
‘
We
confirm that all security provided to us for the Single Credit
Facility (Mortgage Redemption) accepted by Amber Falcon Properties
127 (Pty) on 15 April 2010, as well as all variations to such
security, shall continue to remain in force as continuing covering
security for this facility.’
[6]
Summary judgment is a remedy that lies within the discretion of the
court. At issue in the present instance is whether the extent
of any
liability that the defendants might have incurred is reasonably
capable of being inferred from the summons. Ex facie the
summons, the
plaintiff’s cause of action is based on the single credit
facility agreement signed on 10 September 2010 and
the suretyship
agreements signed by the defendants in April 2010. The ‘single
credit facility (mortgage redemption) agreement’
referred to in
clause 4.1 of the 10 September 2010 agreement is not before the
court. No such description (in the form of a ‘single
credit
facility (mortgage redemption)’ appears in any of the deeds of
suretyship signed by the defendants. The reference
in clause 1.1 of
each of the suretyship agreements is to a ‘single credit
facility loan’ entered into or about to be
entered into between
the plaintiff and the principal debtor. In the certificates of
indebtedness (contended to be prima facie evidence
of the amounts
alleged to be owing by the defendants) no mention is made of the
‘single credit facility agreement’
pleaded by the
plaintiff - the certificate refers to a ‘loan agreement’
accepted by the principal debtor as well as
a ‘subsequent
variation agreement accepted on 10 September 2010’.
[7]
The deeds of suretyship signed by the defendants in April 2010 were
specifically limited to all sums due by the principal debtor
arising
out of a single credit facility agreement dated 12 April 2010. This
is clearly not the agreement on which the plaintiff
relies in its
claim against the principal debtor. It is not apparent from the
papers before me whether the agreement even came
into existence. In
these circumstances, the defendants (as sureties) would never have
become indebted to the plaintiff.
[8]
In so far as the plaintiff relies primarily on clause 4.1 of the 10
September 2010 agreement to establish the defendants’
liability, the wording of the consent concerned refers to the
security provided for the single credit facility (mortgage
redemption)
accepted by the principal debtor on 15 April 2010, ‘as
well as all variations to such security...’ (own emphasis).
There is also no reference to any variation to that security in the
papers before me, nor are the terms of any variation referred
to or
annexed.
[9]
In short: the relevant credit facility for which the defendants may
be liable as sureties is that dated 12 April 2010. The terms
of the
suretyship agreements signed at that time expressly limited the
liability of the defendants to sums due to the plaintiff
by the
principal debtor in terms of that facility. The plaintiff does not
now seek to hold the principal debtor liable in terms
of any
agreement concluded in April 2010. The principal agreement on which
the plaintiff relies is that concluded between the plaintiff
and the
principal debtor on 10 September 2010. To the extent that the
plaintiff relies on the latter agreement to hold the defendants
liable as sureties for the principal debtor, clause 4.1 of the
agreement limits the defendants’ liability to security provided
for a credit facility accepted by the principal debtor on 15 April
2010 and variations to that security. The plaintiff has failed
for
present purposes to establish the existence of that agreement or of
any security or any variations to any security provided
in respect of
that agreement.
[10]
In my view, given particularly that it is not clear which credit
facility, which suretyship and what limitation is applicable,
there
is a reasonable possibility that an injustice may be done if summary
judgment were to be granted.
I
make the following order:
1.
The first and third to eighth defendants are granted leave to defend
the plaintiffs action.
2.
The costs of the application for summary judgment are costs in the
cause of the action.
ANDRE
VAN NIEKERK
ACTING
JUDGE OF THE HIGH COURT NORTH GAUTENG DIVISION