About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Kwazulu-Natal High Court, Durban
SAFLII
>>
Databases
>>
South Africa: Kwazulu-Natal High Court, Durban
>>
2012
>>
[2012] ZAKZDHC 70
|
|
Firstrand Bank Ltd v Singh (4486/2012) [2012] ZAKZDHC 70 (2 November 2012)
1
IN THE KWAZULU-NATAL HIGH COURT, DURBAN
REPUBLIC OF SOUTH AFRICA
CASE NO: 4486/2012
In the matter between:
FIRSTRAND BANK LIMITED
...........................................................
Applicant
and
YUVRAJ JAIRAJ SINGH
................................................................
Respondent
___________________________________________________________
JUDGMENT
___________________________________________________________
GORVEN J
This application is for summary judgment. It arises
from a deed of suretyship executed by the defendant in favour of the
plaintiff.
The principal debtor defaulted on its debt to the
plaintiff. An agreement, signed by the principal debtor, the
defendant and
another surety on the one part and by the plaintiff on
the other, was thereafter concluded in which the defendant and the
others
acknowledged indebtedness in the sum of R1 815 696.92
and a further R385 837.93 along with interest on those sums.
It
provided for the liquidation of the agreed indebtedness by
instalments and that a failure to pay any one instalment would
entitle the plaintiff to declare the full amount outstanding to be
due, owing and payable. The agreement provided that the plaintiff
could prove the amount due by way of a certificate signed by any
manager of the plaintiff. It is alleged in the particulars of
claim
that such default occurred and amounts are due. Certificates by
Barend Johannes De Beer were annexed. He is described in
them as the
Commercial Recoveries Manager of the plaintiff.
The defendant entered an appearance to defend and
summary judgment was applied for. The defendant has put up an
affidavit opposing
summary judgment. The first point taken in it
need not detain me because it was, correctly in my view, abandoned
by the defendant’s
counsel during argument. That is to the
effect that the agreement sued upon is subject to the
National
Credit Act 34 of 2005
. This is clearly not the case. The second
point taken on the affidavit is that the indebtedness is disputed.
The defendant goes
on to say that he caused his attorney to enquire
as to the settlement amount for the indebtedness and an email was
received from
the plaintiff’s attorney setting out this
amount. The defendant then says that he has provided a guarantee for
this amount
‘issued for the purposes of resisting the summary
judgment applied for by the Plaintiff.’ He says he annexes a
copy.
Counsel for the defendant candidly conceded that no such copy
was annexed to the papers and handed up a copy of a guarantee during
argument. It is for an amount less than is claimed by the plaintiff.
Two matters were argued on behalf of the defendant at
the hearing. First, it was submitted that the deponent to the
plaintiff’s
affidavit in support of summary judgment did not
qualify as someone who had personal knowledge of the facts and could
therefore
not ‘swear positively to the facts’ or verify
the cause of action and the amount claimed. The deponent is the
person
who issued the certificates, Barend Johannes De Beer. He says
he is ‘presently administering the records of the Plaintiff
relating to the Defendant and therefore have personal knowledge of
and insight into it. Additionally I have been personally dealing
with the Defendant with regard to the recovery of the Plaintiff’s
claim against him.’ He goes on to make the necessary
averments
required in
Rule 32.
Artificial persons such as banks cannot themselves
depose to affidavits in support of summary judgment. A natural
person in their
employ generally does so. It has long been accepted
that, particularly in banks dealing as they do with clients over a
long period
of time and relating to a potentially wide range of
matters, such a person, is unlikely to have personal knowledge of
each aspect
of the dealings of the bank with a client. As such, it
has long been accepted that an employee deposing to an affidavit in
support
of summary judgment will perforce rely, at least in part, on
documents kept by the bank relating to the dealings in question.
1
The defendant, in argument, submitted that, because in
the leading case of
Maharaj v Barclays
National Bank Ltd
2
an assistant branch bank manager who deposed to an
affidavit only just passed muster, the averments of the deponent in
the present
application are not sufficient.
In
Maharaj
, the court had no other averment than
that the deponent was the assistant branch manager and claimed to be
able to swear positively
to the affidavit. He did not claim personal
knowledge of the facts concerning the overdraft. The court took into
account that
the opposing affidavit in no way challenged the current
state of the defendant’s account. Nor did it allege that the
deponent
was not present when the arrangements for the overdraft
were made or could not have acquired the knowledge in the course of
his
duties. The real challenge was to the amount outstanding.
Significantly, the court in
Maharaj
quoted with approval the
dictum of Miller J in
Love
to the following effect:
‘
We are concerned here with an affidavit
made by the manager of the very branch of the bank at which overdraft
facilities were enjoyed
by the defendant. The nature of the
deponent’s office in itself suggests very strongly that he
would in the ordinary course
of his duties acquire personal knowledge
of the defendant’s financial standing with the bank. This is
not to suggest that
he would have personal knowledge of every
withdrawal of money made by the defendant or that he personally would
have made every
entry in the bank’s ledgers or statements of
account; indeed, if that were the degree of personal knowledge
required it is
difficult to conceive of circumstances in which a bank
could ever obtain summary judgment. It goes without saying that a
manager
of a bank who claims to have personal knowledge of the extent
to which a client has overdrawn his account must needs rely upon the
bank records which show the amounts paid into his account and the
amounts withdrawn by the client.’
3
In the present matter, the deponent has gone further
than in
Maharaj
. He claims personal knowledge and details
that the records in question are under his control. In addition, he
says that he has
had personal dealings with the defendant for the
recovery of the debt. None of this is denied by the defendant. He
does not even
challenge in his affidavit the capacity of the
deponent to depose to such an affidavit as was done in
Maharaj
.
In addition, he is the person who issued the certificates of balance
in the two amounts claimed and is a manager, albeit not
of a branch
of the plaintiff. I am satisfied that he has the capacity and
sufficient knowledge of the matter to depose to the
affidavit in
question. The formal requirements for summary judgment are clearly
met.
The second point argued was that the defendant had
found security, in terms of
Rule 32(3)(a)
, and that summary
judgment should therefore be refused. As an alternative it was
submitted that, if it was held that the guarantee
did not pass
muster under that rule, the matter should be adjourned for the
registrar to indicate whether the guarantee was acceptable
security
or not. In the first place, the opposing affidavit was attested on
29 or 30 June 2012. It purported to annex the guarantee
but did not
do so. No such guarantee formed part of the papers. Even if the
guarantee handed up at the hearing is considered,
there are major
difficulties with the submissions. First, the guarantee is dated 2
July 2012 and was sent under cover of a letter
of 3 July 2012. This
means that it was not in existence when the defendant’s
affidavit was deposed to. More to the point,
however, is that it
does not constitute ‘security…to the satisfaction of
the registrar as is required by the Rule’.
When, in argument,
I enquired why the guarantee had not been furnished to the registrar
for the registrar to indicate whether
it was satisfactory or not,
the defendant’s counsel could not provide a reason. Nearly
four months has elapsed since the
guarantee was issued The
plaintiff’s counsel informed me that he had invited the
defendant’s counsel to accompany
him to the Registrar while
the matter was standing down but that the invitation was declined on
the basis that the defendant’s
counsel had no instruction to
do so. The defendant has simply not brought himself within the ambit
of the rule and nor has he
provided any basis for the indulgence of
an adjournment so that he can attempt to do so. In any event, the
guarantee is not for
the amount claimed in the summons and is
therefore not sufficient for that additional reason.
4
I should also say that I would be surprised if the
guarantee satisfied the Registrar. Among other worrying factors are
that it
is conditional on the transfer of a property taking place
and can be withdrawn by the bank in certain circumstances. The
guarantee
is issued by Standard Bank of South Africa Ltd in favour
of Firstrand Bank Ltd, Credit Account: Ladysmith Wastetech and Scrap
Metal Dealers CC. This is the principal debtor.
The defendant did not suggest any further reason why I
should exercise my discretion against granting summary judgment. I
can
also not think of any.
In the result, summary judgment is granted against the
defendant for:
payment of the amount of R1 667 040.04;
interest on that amount at the Plaintiff’s
prime rate of interest from time to time plus 0.5% per annum,
calculated
daily and compounded monthly in arrears from 8 March
2012 to date of payment;
payment of the amount of R316 650.48;
interest on that amount at the Plaintiff’s
prime rate of interest from time to time plus 0.5% per annum,
calculated
daily and compounded monthly in arrears from 1 April
2012 to date of payment;
costs of suit on the scale as between attorney and
client.
DATE OF HEARING: 30 October 2012
DATE OF JUDGMENT: 2 November 2012
FOR THE PLAINTIFF: PD Quinlan, instructed by Maharaj
Attorneys.
FOR THE DEFENDANT: RM van Rooyen, instructed by TG
BOSCH-BADENHORST, locally represented by BERKOWITZ COHEN WARTSKI.
1
Barclays
National Bank Ltd v Love
1975 (2) SA 514
(D) at 515H-517A.
2
1976
(1) SA 418(A)
3
At
516H-517A.
4
Mervis
Brothers v Schmidt t/a Programmed Language Course
1991 (1) SA
313
(W) at 315A-E.