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[2012] ZAGPPHC 284
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ABSA Bank Ltd v Cure Group CC and Others (56697/2011) [2012] ZAGPPHC 284 (20 November 2012)
NOT
REPORTABLE
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTH
GAUTENG, PRETORIA)
CASE
NO: 56697/2011
DATE:20/11/2012
In
the matter between:
ABSA
BANK LIMITED
..........................................
Plaintiff
and
THE
CURE GROUP CC
......................................
First
Defendant
ALKL
J
J
................................................................
Second
Defendant
KENNEDY
R
…...................................................
Third Defendant
JUDGMENT
MAKGOKA,
J:
[1]
On 11 September 2012 I granted summary judgment in favour of the
plaintiff against the defendants jointly and severally, in
the
following terms:
1.
Payment of the sum of R2 781 208. 78.
2.
Interest on the aforementioned amount at the rate of 6.90% per
annum, calculated and capitalized monthly, form 12 April 2011
to date
of final payment.
3.
An order in terms whereof the immovable property described below is
declared specially executable:-
HOLDING
75 CHARTWELL AGRICULTURAL HOLDINGS, REGISTRTION DIVISION JQ, PROVINCE
OF GAUTENG, MEASURING 2 7409 HECTARES, HELD BY DEED
OF TRANSFER
T150347/2007.
4.
Costs of suit as between attorney and client.
[2]
When I made the order I indicated that any of the parties wishing to
have written reasons for the order, could make a written
request in
that regard. On 18 September 2012 the defendants did so. Here are the
reasons. The plaintiff had issued summons against
the defendants,
alleging that the defendants had breached the terms of a loan
agreement concluded between it and the first defendant.
The plaintiff
claimed payment of a sum of R2 781 208.78 together with finance
charges and interest. The plaintiff further sought
an order declaring
the first defendants’ immovable property executable for the
claimed amount and costs. The loan agreement
was secured by a first
covering mortgage bond registered in favour of the plaintiff over the
first defendant's immovable property.
[3]
The second and third defendants, respectively, in written deeds of
suretyship, bound themselves as sureties and co-principal
debtors
jointly and severally with the first defendant to the plaintiff for
the repayment on demand of all or any sums of money
which the first
defendant may owe to the plaintiff.
[4]
The affidavit resisting summary judgment was deposed to by Mr.
Richard Lawton Kennedy, a member of the first defendant. Four
preliminary points were raised in the affidavit. First, that the
plaintiff has failed to comply with Rule 17 (3) in that it has
failed
to set out an address within 8 kilometers of the office of the
registrar of this court. The plaintiff has provided an address
in
Parktown, Johannesburg.
[5]
Second, that the parties to the action had concluded a further
agreement, a so- called ‘Help-u-Stay’ agreement,
the
terms of which supersede the agreement relied upon by the plaintiff.
In terms of that agreement the first defendant was obliged
to make
monthly payments of R14 000.00 towards the loan amount, which in fact
the first defendant made.
[6]
Third, that the amount claimed by the plaintiff is not readily
ascertainable and therefore summary judgment was incompetent.
In this
regard it is stated that since summons was issued, there have been
various amounts paid to the applicant, which have not
be taken into
consideration.
[7]
Fourth, it is contended that the applicant’s claim is not
liquidated, as the interest rate levied by the applicant has
been
subject to fluctuation and therefore cannot be said to be fixed at
6.9%. This, it is submitted, would require extensive calculation
and
therefore the liquidity of the applicants claim had been destroyed.
[8]
There is no merit in any of the points raised by the first defendant.
I will deal with them in turn. The first can be disposed
of
summarily. The defect has since been cured. An address within the
prescribed radius now appears on all subsequent process delivered
by
the plaintiff. With regard to the second contention, it is often said
that confusion is the art of defence. The first defendant
has
attempted to obfuscate the issues in this matter. The matter is quite
simple. The allegation is that the first defendant borrowed
monies
from the plaintiff, which it failed to repay as agreed. First, the
defendants have elected not to attach a copy of the alleged
agreement
or plead its relevant provisions. In any event, there is no
indication by the defendants that this agreement is a compromise
or
novation to the initial cause of action and therefore a bar to the
institution of these proceedings. The first defendant makes
save for
a bald and sketchy allegation that it has made payments in terms of
the ‘Help U stay agreement’. There appears
no reason why
the first defendant should not have disclosed the information as to
when and in what amounts it made such payments.
The absence of any
such detail casts doubt on the defendants’ bona fides, and
implicitly, that of the opposition. Compare
Traut v Du Toit
1966 (1)
SA 71
; Frank Keevy (Pty) Ltd v Koos van der Merwe Beleggings
(Kroonstad) (Edms) Bpk ’n Ander
1970 (3) SA 432.
[9]
As to the third point, the fact is that the first defendant has
borrowed monies from the plaintiff in capital amount of R 2
750
000.00 and an additional amount of R 550 000.00. The plaintiff and
the first defendant also agreed that the certificate of
balance will
be prima facie proof of the balance outstanding to the plaintiff. The
plaintiff therefore claims an amount of R 2
781 208.78 as reflected
in the certificate of balance.
[10]
Finally, with regard to the interest. Once more, the defendants rely
on bald and sketchy averments. The allegation regarding
interest is a
positive one. In terms of clause 7 of the mortgage bond, interest was
to be calculated in the manner or rate determined
in term of a
written agreement concluded or to be concluded between the parties,
provided that the rate shall not exceed the legal
maximum rate. The
plaintiff alleges that that rate is 6.90%. For the defendants to
successfully meet the allegation, it can not
simply contend itself
with a bald denial. It is expected of it to aver facts, which if
true, could destroy the plaintiff’s
allegation. There is no
allegation to controvert what the plaintiff states in the summons.
The fact that the interest rate fluctuates
from time to time does not
destroy the liquidity of the claimed amount.
[5]
Lastly, it was contended that there had been no demand made on the
defendants. The short answer is that service of summons also
constitutes demand. See Standard Bank of South Africa Ltd v Hand
2012
(3) SA 319
(GSJ) at para [22].
[6]
A defendant wishing to resist summary judgment has to demonstrate a
bona fide defence, which is one set up bona fide or honestly,
which
if proved at the trial, would constitute a defence to the plaintiff’s
claim: See Bentley Maudsley & Co. Ltd v Carbural”
(Pty) Ltd
and Another
1949 (4) SA 873
(C); Lombard v Van der Westhuizen
1953
(4) SA 84
(C) at 88. None of the points raised by the defendants,
either severally or cumulatively, constitutes a bona fide defence
[7]
I am quite aware of the drastic nature of the remedy of summary
judgment. On the other hand, the court would be remiss in its
duties
if unmeritorious defences, clearly devoid of any bona fides, stand in
the way of a plaintiff who is clearly entitled to
relief. The
ever-increasing perception that any defence, whatever its merits, is
sufficient to stave off summary judgment, is misplaced
and not
supported by the trite general principles developed over many
decades. See for example the welt- known decision of the
then
Appellate Division in Maharaj v Barclays National Bank Ltd (supra).
See also generally, Herb Dyers (Pty) Ltd v Mohamed and
Another 1965
(1) 31 (T) at 31H-32A; Caltex Oil (SA) Ltd v Webb and Another
1965
(2) SA 914
(N) at 916D-H; Arend and Another v Astra Furnishers (Pty)
Ltd 1974 (1) SA (C) at 303F-H; Shepstone v Shepstone 1974 (2) 462 (N)
at A-H and Breytenbach y Fiat SA (Edms) Bpk 1976 (2) 226 (T).
[14]
Recently the Supreme Court of Appeal (SCA) restated the purpose of
summary judgment procedure in Joob Joob Investments (Pty)
Ltd v
Stocks Mavundla Zek Joint Venture
1
2009 (5) SA 1
(SCA). At paras 31 and 33 the following is stated:
"...
It was intended to prevent sham defences from defeating the rights of
parties by delay, and at the same time causing great
loss to
plaintiffs who were endeavouring to enforce their rights”
“
Having
regard to its purpose and its proper application, summary judgment
proceedings do not hold terrors and are ‘drastic'
for a
defendant who has no defence. Perhaps the time has come to discard
these labels and to concentrate rather on the proper application
of
the rule, as set out with customary clarity and elegance by Corbett
JA in the Maharaj case at 425G- 426E.”
[15]
For all the above considerations I came to the conclusion that the
defendants’ defence was not set up bona fide or honestly,
but
solely for delaying purposes. I accordingly granted summary judgment,
as set out in para [1] above.
TM
MAKGOKA
JUDGE
OF THE HIGH COURT
DATE
HEARD : 11 SEPTEMBER 2012
JUDGMENT
DELIVERD : 20 NOVEMBER 2012
FOR
PLAINTIFF : ADV I OSCHMAN
INSTRUCTED
: BEZUIDENHOUT VAN ZYL INC
RANBURG
AND PETZER, DU TOIT & RAMUUFHO, PRETORIA.
FOR
THE FIRST, SECOND,
AND
THIRD DEFANDANTS : ADV RC DE ALCANTARA
INSTRACTED
BY : ALUS ATTORNEYS, HYDERPARK AND
FRIEDLAND
HART SOLOMON & NILCOSON, PRETORIA
1
2009
(5) SA 1
(SCA)