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[2012] ZAGPPHC 298
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Nedbank Ltd v Exceed Props 8 (Pty) Ltd and Others (1307/2012) [2012] ZAGPPHC 298 (20 November 2012)
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Certain
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NOT
REPORATBLE
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTH
GAUTENG, PRETORIA)
CASE
NO: 1307/2012
DATE:20/11/2012
In
the matter between:
NEDBANK
LIMITED
.......................................................
Plaintiff
(REG
NO: 1951/000009/06)
and
EXCEED
PROPS 8 (PTY) LTD
...................................
First
Defendant
(NO:
202/027482/07)
STEFANUS
LAWRENCE DE DRUIN
.........................
Second
Defendant
ID
NO:
JOHANNA
HELENA ORTLEPP
....................................
Third
Respondent
ID
NO:
JUDGMENT
MAKGOKA,
J:
[1]
This is an opposed summary judgment application. In its simple
summons, the plaintiff alleges that the first defendant (the
company)
has breached the terms of a
loan
agreement between it and the first defendant. The loan agreement was
secured by a mortgage bond registered in favour of the
plaintiff over
the company’s immovable property. The second and third
defendants have respectively executed deeds of suretyships
in favour
of the plaintiff and bound themselves as sureties and co-principal
debtors with the company in respect of the first defendant’s
liability.
[2]
The plaintiff claims payment of a sum of
R2 814 905.80, together with finance charges and interest. The
plaintiff further seeks
an order declaring the company’s
property executable for the amount claimed, and for an order
authorising the issuance of
a writ of execution against the property.
It also seeks costs on an attorney and client scale, as provided for
in terms of the
mortgage bond.
[3]
The affidavit resisting summary judgment
was deposed to by Mr. David Julius Ortlepp. Mr. Ortlepp was initially
a director of the
company from 20 July 2004 until 1 January 2005,
when he transferred all his shares to the third defendant, to whom he
was married
- they were divorced on 14 March 2006. The essence and
thrust of his affidavit is this. The third defendant was appointed a
director
of the company on 28 January 2005, and since 4 February
2005, the third defendant owned the entire share capital of the
company.
On 15 March 2005 the third defendant appointed her brother
(the second defendant) as a director of the company. In this regard
the deponent contends that the second defendant took advantage of the
third defendant’s vulnerability as a divorced person
by causing
the third defendant to appoint him as director of the company and
then to sign deeds of suretyships and other documentation
in terms of
which the plaintiff advanced sums of money used by
the
second defendant for his own purposes and in terms of which the
plaintiff caused the property to be encumbered, to the detriment
of
the company and third defendant.
[4]
But for the undue influence of the
second defendant, the company and the third defendant would not have
applied for any facilities
from the plaintiff of their own volition
for use by the second defendant who defrauded the company and third
defendants. No funds
were disbursed to the company by the plaintiff
or received by the company from the plaintiff, either in terms of the
initial loan
or the further loan described in the documents attached
to the summons. The moneys were disbursed directly to the second
defendant
or an entity under his exclusive control. Upon receipt of
the funds from the plaintiff, the second defendant undertook to
service
all payment due to the plaintiff under the loan. The third
defendant had nothing to do with the second loan arranged with the
plaintiff
in Bloemfontein by second defendant during June 2006. The
second defendant had no authority to enter into such loan from the
company.
[5]
On these facts, the deponent contends
that there is no lawful cause in terms of which either of the bonds
relied upon by the plaintiff
was registered against the property of
the company.
[6]
Mr. Roux, counsel for the plaintiff,
correctly pointed out that the monies claimed by the plaintiff are
due and payable in terms
of the mortgage bond by reason of the
company’s’ failure to punctually pay the instalments as
provided for in the mortgage
bond, which, notwithstanding demand,
remain unpaid. I agree with Mr. Roux that the issues raised by Mr.
Ortlepp have nothing to
do with the plaintiff but with internal
governance
issues in the company. I do not see how any of these could constitute
a bona fide defence to the plaintiff’s claim.
A bona fide
defence means a complete defence set up bona fide or honestly, which
if proved at the trial, would constitute a complete
defence to the
plaintiff’s claim: See Bentley Maudsley & Co. Ltd v
<;
Carburol”
(Pty) Ltd and Another
1949 (4) SA 873
(C); Lombard v Van der
Westhuizen
1953 (4) SA 84
(C) at 88. In my view there is no such
defence in the present case.
[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 well- known decision of the
then Appellate Division in Maharaj v Barclays National Bank Ltd
1976
(1) SA 418
(A). See also generally, Herb Dyers (Pty) Ltd v Mohamed
and Another 1965 (1) 31 (T) at 31H-32A-B; 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 v Fiat SA (Edmis) Bpk 1976
(2) 226 (T).
[8]
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
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 Maharai case at 425G- 426E.”
[9]
In the result I conclude that the defendants have not disclosed a
bona fide defence to the plaintiff’s claim. I therefore
make
the following order:
1.
Summary judgment is granted against the first, second and third
respondents,
jointly
and severally, the one paying the others to be absolved for:
1.1
payment in the sum of R2 814 905.80;
1.2
Interest on the amount of R2 814 905.80
at a rate of 7.10% per annum from 1 December 2011 to date of payment;
1.3
The property situated Erf 18, Lukasrand
Township, Registration Division JR, Gauteng Province, deed of
transfer T87182/2003, also
known as 504 Sibelius Street, Lukasrand,
Pretoria, Gauteng province is declared specially executable;
1.4
Costs of the suit on an attorney and
client scale.
TM
MAKGOKA
JUDGE
OF THE HIGH COURT
DATE
OF HEARING : 9 OCTOBER 2012
JUDGMENT
DELIVERED : 20 NOVEMBER 2012
FOR
THE PLAINTIFF : ADV J ROUX
INSTRUCTED
BY : WEAVIND & WEAVIND,
PRETORIA
FOR
THE 1
st
,
2
nd
&
3
rd
DEFENDANTS : ADV Z SCHOEMAN
INSTRUCTED
BY : COUZYN HERTZOG & HORAK,
PRETORIA