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[2012] ZAFSHC 11
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Standard Bank of South Africa Ltd v Mokoena (3813/2011) [2012] ZAFSHC 11 (9 February 2012)
FREE STATE HIGH
COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
CASE NO. 3813/2011
In
the matter between:
THE
STANDARD BANK OF
SOUTH
AFRICA LIMITED
....................................................
PLAINTIFF
And
NTAU
LUCAS MOKOENA
…............................................
DEFENDANT
_____________________________________________________
CORAM:
NAIDOO, AJ
_____________________________________________________
HEARD ON:
2
FEBRUARY 2012
DELIVERED ON:
9
FEBRUARY 2012
_____________________________________________________
NAIDOO AJ
[1] This is an
application for Summary Judgment. The plaintiff issued summons
against the defendants for payment of the sum of R571
590.27,
together with interest thereon and costs. The said amount is
allegedly due to the plaintiff as a result of the defendant’s
current account being overdrawn. The defendant also applies for
condonation for the late filing of his opposing affidavit. The
plaintiff was represented by Mr WJ Groenewald and the defendant was
represented by Mr DZ Kela.
[2] The defendant held
two accounts with the plaintiff at its Brandwag branch in
Bloemfontein, the first being an Achiever Plus
Current Account (the
current account), bearing account number 240303867 and the second
being an Electronic 32 Day Notice Deposit
Account (the 32 day
account), bearing account number 248472496. It is not in dispute that
on 1 March 2011 and at the plaintiff’s
Loch Logan branch in
Bloemfontein, an amount of R690 000.00 was transferred from the
defendant’s 32 day account into his
current account. It is also
not in dispute that on the same day and at the plaintiff’s
Preller Square Service Centre branch
in Bloemfontein, the defendant
requested payment of the monies in his 32 day account, without giving
the requisite 32 day notice.
As a result of this request, an amount
of R693 526. 93 was transferred from the 32 day account into his
current account on that
day.
[3] On 1 March 2011, an
amount of R600 00.00 was transferred to Liberty Life for the purchase
of an investment policy by the defendant,
and the amount of R693
526.93 was transferred into another account which he held at Absa
Bank. While no indication has been given
of what capital amount was
held in the 32 day notice account and it has not been specifically
pleaded that there were insufficient
funds in that account to sustain
both transactions, it would appear that this is in fact the case.
When the plaintiff discovered
that the defendant’s current
account was credited twice, it reversed the second amount of R693
526. 93. This effectively
caused the current account to become
overdrawn in the amount of R571 590.27. It is on this basis that the
plaintiff claims that
the defendant is indebted to it in that amount.
[4] The defendant does
not dispute that the two amounts I have mentioned were credited to
his current account, or that the amounts
referred to in paragraph 3
were transferred out of the current account. The defendant alleges
that on 15 February 2011, he handed
an amount of R600 00.00 in cash
to an employee of the plaintiff at its Loch Logan branch, for the
purpose of purchasing an investment
policy from Liberty Life. She
required him to sign numerous documents, which he did. Thereafter he
received a number of calls and
messages from this employee for him to
call at the plaintiff’s Loch Logan branch which he did on 28
February 2011. This same
employee presented more documentation for
him to sign, which he once more signed.
[5] On 2 March 2011, he
discovered that his bank balance was unusually large and went into a
branch of the plaintiff to enquire
about this, but received no
satisfactory explanation. He also noticed that an amount of R600
000.00 was transferred to Liberty
Life, which caused him concern as
he was under the impression that the amount was paid in cash on 15
February 2011. He returned
to the bank (presumably a branch of the
plaintiff) but was told to speak to the manager on another day and
again left the bank
without a satisfactory explanation. He noticed
shortly thereafter that the amount of R693 526.93 was debited to his
current account
as the previous deposit of that amount was reversed.
[6] The defendant
contends that he did not authorise the deposit of R690 000.00 into
his current account at the plaintiff’s
Loch Logan branch nor
the payment by the plaintiff of the amount of R600 00.00 to Liberty
Life from his current account. He contends
that the plaintiff granted
him an overdraft facility without a proper agreement between them and
without his consent for the plaintiff
to do so. As such, the
provisions of the
National Credit Act 34 of 2005
are applicable, and
that the conduct of the plaintiff, in essence, amounts to the
reckless grant of credit.
In addition, he was
advised that his policy with Liberty Life was cancelled, and he was
requested to give directions regarding the
refund of his money. He
denied cancelling the policy and arranged for the reinstatement of
the policy.
[7] Rule 32 (3) of the
Uniform Rules of Court requires the defendant to have a defence that
is bona fide and good in law. In the
matter of
Breitenbach v Fiat SA
(Edms) Bpk 1976(2) SA 226 (TPD), Colman J stated at p227 G
“
One of the things
clearly required of a defendant by Rule 32(3)(b)is that he set out in
his affidavit facts which, if proved at
the trial, will constitute an
answer to the plaintiff’s claim
”
.
In order for the court to
assess whether the defence raised by a defendant is bona fide he/she
must provide adequate information
about such defence, which amounts
to a full disclosure of his/her defence. While the sub-rule requires
the defendant to
“
disclose
fully the nature and grounds of the defence and material facts relied
upon”,
it does not,
however, demand the impossible and it will suffice
“
if
the defendant swears to a defence, valid in law, in a manner which is
not inherently and seriously unconvincing”.
(See
Breitenbach above)
[6] As I have indicated,
the defendant does not deny that the various transactions were
processed on his account. He alleges that
he did not authorise the
transfer of the amount of R690 000.00 to his current account nor the
payment of R600 00.00 from his current
account to Liberty Life. He
appears to suggest in his opposing affidavit that there may well be
fraud on the part of the plaintiff’s
employee which resulted in
its loss.
[7] The next issue to
consider is whether the plaintiff is entitled to summary judgment. It
is well settled in our law that summary
judgment should only be
granted where the plaintiff has established his claim clearly and the
defendant has failed to establish
a bona fide defence. This means
that the plaintiff must show not only that it has a claim which falls
within the ambit of Rule
32 of the Uniform Rules but that it has
taken all steps to perfect its claim and make it unanswerable. Mr
Groenewald conceded that
the plaintiff’s operating systems are
electronic and that in the ordinary course of business, the system
would not allow
the withdrawal or transfer of funds that are not
physically available in an account. However, no explanation was
forthcoming as
to how the plaintiff’s Preller Square branch
authorised the transfer of such a large amount of money when funds
were clearly
not available in the 32 day account by the time the
defendant requested payment as he did. No documentation or other
evidence has
been placed before this court to indicate who applied
for and authorised the transfer of R690 000, from the defendant’s
32
day account into his current account, or who authorised the
payment of R600 000.00 to Liberty Life on 1 March 2011. In view of
the defendant’s denial that he authorised these transactions,
it may well be established that he did not indeed authorise
these
transactions, and consequently that he does not owe the plaintiff the
amount that it claims.
[8] . On the evidence
before me, it seems to me that the plaintiff’s claim is not
clearly
established.
Section 32(5) gives the
court a discretion to grant or refuse summary judgment. In this
matter it is reasonably
possible that the
defendant has a good defence in that he will be able to establish
that he does not owe the plaintiff the amount
that it claims.
(
Mowshenson & Mowshenson v Mercantile Corporation of SA Ltd
1959 (3) SA 362
(W) at 366F-G).
The granting of summary judgment
is based upon the supposition that the plaintiff’s claim is
unimpeachable and also that
the defendant’s defence is bogus or
bad in law – per
Corbett JA in Maharaj v Barclays National
Bank Ltd 1976(1) SA 418 (A) at 423G-H.
[9] The defendant also
contended that the
National Credit Act applies
in this matter, and
that the plaintiff’s non compliance with the provisions thereof
militates against the granting of summary
judgment. In view of what I
have outlined above, this, if proved at the trial, may well amount to
a good defence. I do not, however,
deem it necessary for this court
to analyse or consider this aspect in greater detail. As regards the
defendant’s application
for condonation for the late filing of
his opposing affidavit, no opposition was offered by the plaintiff
and, in my view, the
plaintiff suffered no prejudice thereby. The
application for condonation, therefore, is granted.
[10] In this case, I am
unable to hold that the defences put forward by the defendant are
bogus or bad in law, and I am, consequently,
of the view that
granting summary judgment at this point would amount to closing the
doors to the defendant and would be unduly
prejudicial to him. In my
view, therefore, summary judgment ought not to be granted.
[10] I, accordingly, make
the following order:
The application for
Summary Judgement is dismissed;
The defendant is given
leave to defend the action;
The costs are to be
costs in the cause.
____________
NAIDOO, AJ
Counsel for Plaintiff:
Adv WJ Groenewald
Instructed by
Liezel
David Attorneys 13 Wolfgang Avenue
Johannesburg
C/O Goodrick &
Franklin
95A Aliwal Street
Arboretum
Bloemfontein
Counsel for the
Defendant:
Adv DZ Kela
Instructed by:
T
Hadebe Attorneys
2
nd
Elizabeth
Street
NBS Building
1
st
Floor Room
101
Bloemfontein