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[2009] ZAGPPHC 373
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Standard Bank Of South Africa Limited v Kapp and Others (33022/09) [2009] ZAGPPHC 373 (19 November 2009)
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTH
GAUTENG HIGH COURT, PRETORIA )
CASE
NUMBER:33022/09
DATE:
19 NOVEMBER 2009
In
the matter between:
STANDANRD
BANK OF SOUTH AFRICA
LIMITED APPLICANT/PLAINTIFF
And
FREDA
HUGOLENE KAPP 1
st
RESPONDENT/DEFENDANT
UNIT
1 333 SAUNDERS CC 2
nd
RESPONDENT/DEFENDANT
(REG
NO: 2002/17355/23)
ELECTOPOS
190 (PTY) LTD 3
rd
RESPONDENT/DEFENDANT
(REG
NO: 1996/013678/07)
JUDGMENT
TLHAPI.
AJ
[1]
The applicant ( plaintiff) instituted
action against the respondents ('defendants’) for
“
(a)
Payment of the sum of R44 076 63 in respect of Claim A;
(b)
Interest thereon at the rate of 14% per annum, calculated daily and
compounded monthly in arrear, from 25 February 2009 to date
of final
payment, both dates inclusive;
(c)
Payment of the sum of R719 743.23 in
respect of Claim B;
(d)
Interest thereon at the rate of 14% per
annum, calculated daily and compounded monthly in arrear. from 25
February 2009 to date
of final payment, both dates inclusive;
(e)
Costs of suit;”
[2]
The defendants entered appearance to
defend and plaintiff Drought an application for summary judgment and
the application was duly
served on the defendants. The first
defendant filed an affidavit resisting summary judgment. The
plaintiff agreed to an order granting
the first defendant only, leave
to defendant and costs in the cause The liability against the second
and third defendants arose
out of duly executed deeds of suretyship
dated 4 March 2004 and each bound themselves as sureties and
co-principal debtors for
the payment when due of all the present and
future debts of any kind' to the plaintiff In terms of the
suretyship, debts which
had become due and payable were recoverable
from the second and third defendants jointly and severally without
plaintiff having
to first recover from the first defendant.
[3]
According to the first defendant, action
was premature and the debt had not become due with regard to her
therefore the plaintiff
could not recover in terms of the suretyships
from the second and third respondents for the following reasons:
1.
the deponent to the application Anthony
Lorcan Kennedy (“Kennedy”) was not in a position to
verify the causes of action
in that he did not have personal
knowledge of the claims;
2.
in its particulars, plaintiff failed to disclose whether the
agreement to lend and advance monies (claims A and 8) were entered
into orally, in writing, tacitly or in any other manner and, that the
cause of action had not been described with sufficient clarity
m
order for plaintiff to consider her defence:
3.
that Winnie Gladness Gumede (Manager
Priority Legal Customer Debit Management) of the plaintiff did not
have personal knowledge
of the account and/ or authority' to sign the
certificates of balance in that she was not employed at the Boksburg
Branch where
the bank account m respect of claim A was held nor at
the Fourways Crossing Branch where the bank account in respect of
claim B
was held;
4.
Winnie Gladness Gumede's authority to
sign the certificates of balance was negated by Kennedy's averment
that all files documents
and records pertaining to this matter were
in his possession and control;
5.
the certificate issued by the
collections manager Vinsin Moonusamy in compliance with section 129
read together with section 130
of the National Credit Act 34 of 2005
('the Act ) had been signed pnor to the issue of summons and his
authority to issue such
certificate was negated by Kennedy's averment
that all files, documents and records pertaining to this matter were
in his possession
and control,
6.
without making the required allegation
In its particulars, plaintiff had annexed to such particulars,
letters which purported to
be in compliance with the Act; furthermore
plaintiff had failed to send the said letters by registered post to
the chosen domicilium
citandi et executandi,
7.
the postal address to which the notices
had been sent, was the postal address of a business Ocean Marine
which first defendant conducted
as a sole proprietor, plaintiff was
aware that the first defendant had ceased trading during May 2008 and
had known that the postal
address to which the letters had been sent
by registered post had not been used by her; she denied having
received such notice;
[4]
It is trite that this is an extraordinary and stringent procedure
which places great limitations on the defendant In that it
allows the
court to give a final judgment without going to trial. It does not
follow therefore, that the application should succeed
in all
instances where it has not been opposed. The court must satisfy
itself that the application prima facie, conforms to the
requirements
of Rule 32 of the rules of court. In this instance the second and
third defendant s did not file any affidavit resisting
summary
judgment and the first defendant's affidavit resisting summary
judgment does not state that she was authorised by resolution
to
oppose the application on their behalf.
[5]
In resisting summary judgment the defendant should have a bona fide
defence to the action and is required to' disclose fully
the nature
and grounds of defence and material facts relied upon. In exercising
its discretion to grant the application the court
must be satisfied
that the claim is technically clear and correct and that the
defendant had failed in its opposing affidavit to
present facts which
would enable the court to conclude that there was a fairly triable
and arguable case' or reasonable probability
that the defendant would
properly defend its case,
Visser v Incorporated General Insurance
Ltd
1994 (1) SA 472
(T) at 478 H; Gulf Steel (Pty) Ltd v Rack-Rite
Bop Ltd and Another
1998 (1) SA 679
(O) at 683 H-J and 684 A.
[6]
It was submitted that plaintiff s right to proceed against the second
and third defendants derived from the written deeds of
suretyship.
The second and third defendants bound themselves not only as sureties
but also as co principal debtors. It is
trite that by so doing
they renounced the benefits ordinarily available to sureties as
against a creditor. They were debtors, who
in terms of the
suretyship, the bank could proceed without prior excussion of the
principal debtor’, the first defendant,
Neon and Cold
Cathode Illuminations v Ephron
1978 SA 463
(A) at 471 C-E.
[7]
The notice in terms section 129 (read together with
section 130)
of
the
National Credit Act was
sent by registered post on 10 April 2009
to the postal address given on the suretyship. There is no proof or
reason given by the
second and third defendant that the notice had
not reached them.
The
suretyship bears a stamp of the plaintiffs East Rand Credit Division
and not m particular the Boksburg or the Fourways Crossing
branches.
There is no reason in my view, to assume that Kennedy who is
stationed as a manager in the legal Customer Debt Management.
Personal and Business Banking Credit section of the plaintiff and,
who has offices in Johannesburg would not be in a position depose
to
the affidavit He states that the facts were within his personal
Knowledge and that all files, documents and records relating
to this
matter were in his possession.
Furthermore,
the certificates of balance are meant to assist the court in
determining whether the plaintiff's claim was easily ascertainable,
for a liquidated amount in money and falling within the provisions of
Rule 32
The plaintiff has In my view complied with the rule
[8]
In the premises, the following order is made:
1.
The first defendant is granted leave to
defend, costs in the cause
2.
The application is granted against the
second and third defendants with costs.
TLHAPI,
V
(ACTING
JUDGE OF THE HIGH COURT)
FOR
THE PLAINTIFF/APPLICANT :
NEWTONS
INC;
NEW
MUCKLENEUK. PRETORIA
FOR
THE DEFENDANT:
EDELSTEIN-BOSMAN
INC;
NEW
MUCKLENEUK. PRETORIA