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[2012] ZAGPPHC 44
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Meyer NO and Another v ABSA Bank Ltd (70189/2010) [2012] ZAGPPHC 44 (23 February 2012)
NOT
REPORTABLE
IN
THE HIGH COURT OF SOUTH AFRICA
(TRANSVAAL PROVINCIAL
DIVISION)
CASE
NO. 70189/2010
Date
heard: 23/02/2012
MICHAEL
MEYER
N.O.
............................................................................
First
Applicant/Plaintiff
MICHAEL
MEYER (JNR)
N.O.
............................................................
Second
Applicant/Plaintiff
and
ABSA
BANK
LIMITED
.............................................................................
Respondent/Defendant
JUDGMENT
GOODEY
AJ:
[1]
INTRODUCTION:
(1.1)
This is an application in terms of Rule 30.
(1.2)
The parties will be referred to as either "Applicant" or
"Plaintiff' and as "Respondent" or "Defendant".
(1.3)
The Plaintiffs' application is for an order that the security given
by the Defendant in terms of Rule 32(3)(a) of the Uniform
Rules of
Court, and which was delivered on 19 April 2011 (and not 18 April
2011 as stated by the Applicants) be set aside as an
irregular step.
(1.4)
Various references are made to the heads of the parties which are
herewith acknowledged.
[2]
BACKGROUND / RELEVANT FACTS:
(2.1)
A handy summary of the facts appears from the Applicants' heads which
can be referred to as stated hereinafter.
(2.2)
The First and Second Applicants are the Trustees of the Sophia Trust.
(2.3)
The Trust conducts a bank account with the Respondent, more
specifically a savings account at the Paarl branch of the Respondent.
(2.4)
On 22 February 2010, debit inscriptions in the amount of R33 000,00
appeared on the account. The Plaintiffs say they did not
authorise
the said inscriptions. The Respondent had no authority so the
Plaintiffs' say to effect the inscriptions on the account,
which the
Respondent refuses to rectify on the account.
(2.5)
The Applicant then issues summons, the Respondent entered a notice to
defend whereupon the Applicants applied for summary
judgment.
(2.6)
The Defendant elected to furnish security (instead of filing an
opposing affidavit) which it did on 16 February 2011. The
security
was not to the satisfaction of the Registrar, and the Registrar
issued a decision/ruling to that effect, i.e. not accepting
the
security.
(2.7)
After the said security was ruled on 12 April 2011 as being
insufficient, the Defendant delivered further security on 19
April
2011.
(2.8)
On 20 April 2011 the summary judgment application was postponed to 6
June 2011.
(2.9)
On 20 April 2011, the Plaintiffs delivered a notice in terms of Rule
30(2).
(2.10)
The Plaintiffs stance in the aforesaid notice was that the Defendant
had acted irregularly in delivering the further security
of 18 April
2011, in that such delivery of further security was not in accordance
with the Rules.
(2.11)
The question to be decided in this matter is thus whether or not the
delivery of the second security by the Defendant constitutes
an
irregular step.
[3]
COMMON CAUSE BETWEEN THE PARTIES:
It
is common cause between the parties that:
(3.1)
Defendant elected to give security instead of filing an opposing
affidavit (first security);
(3.2)
The first security was rejected by the Registrar;
(3.3)
The Defendant then furnished a second security.
[4]
APPLICANTS/PLAINTIFFS CASE:
(4.1)
The gist is that the second security constitutes an irregular step
as no provision is made in the rules for such as step.
(4.2)
From the heads of argument of the Applicants it is argued as set out
hereinafter.
(4.3)
Ad paragraph 12 thereof:
"12.
If the Defendant is granted a multiple and unlimited number of
opportunities to furnish security to the satisfaction of
the
Registrar, it will entail a mockery of the process. The Defendant
very clearly on 16 February 2011 exercised its election in
terms of
the Rule to furnish security (albeit not to the satisfaction of the
Registrar)."
(4.4)
Ad paragraph 17.2 thereof:
"17.2
It is submitted that this Court cannot adjudicate the summary
judgment and that this Court ought not to be influenced
by the
Defendant setting out a defence in the Rule 30 papers."
(4.5)
Ad paragraph 25 thereof:
"The
Honourable Court's attention is drawn to Section 4(2)(b) of the above
Act, which reads :
"The
Tribunal or Court as the case may be, must
(i)
promote the spirit and purposes of this Act; and
(ii)
make appropriate order to give practical effect to the consumer's
right of access to redress including but not limited to
(aa)
any order provided for in this Act; and
(bb)
any innovative order the debtor advances, protects, promotes and
assures the realization by consumer's of their rights in terms
of the
Act."
The
procedure followed by the Defendant is in total conflict with the
principle as set out in this Section and the Court is urged
to apply
the said section and Section (b) in the preamble to the Act, namely:
"(b)
protect the interest of all consumers, ensure accessible, transparent
and efficient redress for consumers who are subjected
to abuse or
exploitation in the market place."
It
is respectfully submitted that the actions of the Respondent in this
matter ought to be viewed against the background of the
aforesaid
provisions."
[5]
ARGUMENT ON BEHALF OF THE RESPONDENT:
(5.1)
The Respondent filed heads and further heads of argument.
(5.2)
The gist of its defence is that the second security is not an
irregular step and that cognisance must be taken of the defence
set
out by it (opposing summary judgment) in the Rule 30 proceedings.
(5.3)
The Respondent further submits in paragraphs 2 to 12 of its further
heads of argument:
2.
The
registrar has not considered the second security, delivered by the
defendant on 19 April 2011, in order to determine whether
such
security is to the registrar's satisfaction or not.
3.
The
plaintiffs, with their application in terms of rule 30, in effect
requires the court to perform the function expressly reserved
for the
registrar by rule 32(3)(a).
4.
Once
the registrar has considered the second security, a party that is not
satisfied with the registrar's decision in that regard,
may take the
decision on review,
5.
What
the plaintiffs should do in this instance is to enrol the application
for summary judgment in the event of the plaintiffs being
of the
opinion that they are, in the circumstances of this case, entitled to
summary judgment.
6.
In
such event the defendant will have to satisfy the court, upon the
hearing of the application for summary judgment, that the defendant
has properly given security in terms of rule 32(3)(a) (in the event
of the defendant wishing to fend off the application for summary
judgment by giving security).
7.
If
the defendant does not find security or satisfy the court by
affidavit or with leave of the court by oral evidence, that the
defendant has a bona fide defence to the action, the court may enter
summary judgment for the plaintiffs.
See:
Rule 32(5)
8.
Rule
30 applies only to irregularities of form and not matters of
substance.
See:
Erasmus, Superior Court Practice, Main Binder, B1-191 [Service 37,
2011]; Singh v Vorkel
1947 (3) SA 400
(C) at 406; Odendaai v De Jager
1961 (4) SA 307
(O) at 310F-G
9.
The
plaintiffs' case is that the delivery of the second security on 19
April 2011 constitutes an irregular step.
See:
Notice in terms of rule 30(2), p 2; Founding affidavit, para 5, p 14
10.
Whether
or not the second security is, as a matter of substance, defective as
alleged by the plaintiffs is, accordingly, irrelevant
for purposes of
this application.
See:
Notice in terms of rule 30(2), p 2; Founding affidavit, para 7, pp
14-15
11.
There
is no indication (expressly or impliedly) in rule 32(3)(a) that a
party is prohibited from giving a second (or further) security
in
accordance with the rule where the registrar has ruled that the
security initially provided by such party is not to his satisfaction.
12.
Considering
the extraordinary and very stringent nature of the summary judgment
remedy, it would be inappropriate to limit rule
32(3)(a) to only
affording a defendant one opportunity to give security as provided
for in the rule."
[6]
THE LAW:
(6.1)
A Defendant who is faced with a summary judgment application can do
one of two things :
"(a)
give security to the Plaintiff to the satisfaction of the Registrar
for any judgment including costs which may be given,
or
(b)
satisfy the Court by affidavit (which shall be delivered before noon
on the Court day but one preceding the day on which the
application
is to be heard) ... that he has a bona fide defence to the action;
..." [Rule 32(3)]
(6.2)
The commentary in this regard [Superior Court practice -
Erasmus]
reads as follows:
"Subrule
(3)(a): 'Give security'. The words 'give security' in this subrule
mean that the security must be sufficient to meet
the demands set out
in the summons. The Defendant must also give security for costs-costs
being included in 'any judgment... which
may be given' against the
Defendant in the action."
(6.3)
As to an irregular step the following is inter alia said
(Erasmus):
"'An
irregular step has been taken'. The irregular step contemplated by
the subrule must be a step which advances that proceedings
one stage
nearer completion. The annexure of an unsworn statement to an
affidavit is not an irregular proceeding under this rule,
nor is a
notice in respect of furnishing security. The rule has found
application where, for example -
(a)
Proper service of a summons has not been effect;
(b).....
"
[My
emphasis]
[7]
DISCUSSION:
(7.1)
The Respondent submits that it is entitled to raise its defence
(opposing summary judgement) in the Rule 30 proceedings.
Without
deciding this point, I am of the view that it cannot be done in that
the Rule 30 proceedings are independent and are not
the Rule 32
proceedings.
(7.2)
As indicated above (par 6.3), a notice in respect of furnishing
security is not an irregular step. This being the case, it
is
difficult to see how a second security (rectifying the first which
was not to the satisfaction of the Registrar) can be an irregular
proceeding.
(7.3)
The Rule [R32(3)] is clear. The security must be to the satisfaction
of the Registrar. It is clearly not a function of the
Court.
(7.4)
It is clearly implied in the rule that if the Registrar is not
satisfied with the security, the party furnishing the security
may
rectify same.
(7.5)
The argument of Mr Vlok (on behalf of the Applicants) that this May
lead to an abuse in that a Defendant may on numerous occasions
(and
wilfully) in order to prolong the proceedings, furnish security which
is not to the satisfaction of the Registrar, is not
completely
without substance. However, in such an instance a Plaintiff will be
entitled to proceed with summary judgment, sailing
under the flag
that such a Defendant abused/endeavour to abuse the Rules of Court.
[8]
CONCLUSION:
(8.1)
In view of the aforesaid, the application must fail.
(8.2)
Since a novel point was raised by the Applicant and costs are in my
discretion, I am of opinion that the cost in the Rule
30 proceedings
should be costs, in the summary judgment proceedings.
(8.3)
Consequently, I make the following order:
1.The
application is dismissed;
2.
Costs to be costs in the summary judgment proceedings.
Date
heard: 3/02/2012 Date of judgment:
On
behalf of the Applicants:
ADVOCATE
VLOK (PRETORIA) LOUW ATTORNEYS
On
behalf of the Defendant:
ADVOCATE
MALAN (PRETORIA) SAVAGE JOOSTE & ADAMS (PRETORIA)