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[2024] ZAKZPHC 58
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Firstrand Bank Limited t/a First National Bank v JLR Services and Warehousing CC and Another (9888/2023P) [2024] ZAKZPHC 58 (29 July 2024)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
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IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
Case
no:
9888/2023P
In
the matter between:
FIRSTRAND
BANK LIMITED t/a FIRST NATIONAL BANK
PLAINTIFF
Registration
Number 1929/001225/06
and
JLR
SERVICES AND WAREHOUSING CC
FIRST DEFENDANT
Registration
Number 2010/117059/23
ZAINUB
MOTALA
SECOND DEFENDANT
Identity
Number 8[...]
Coram:
Mossop
J
Heard:
29
July 2024
Delivered:
29
July 2024
ORDER
The
following order is granted
:
1.
The second
defendant’s exception is dismissed.
2
The second defendant shall pay the plaintiff’s costs, to be
taxed on scale B.
JUDGMENT
MOSSOP
J
:
[1]
This
is an ex tempore judgment.
[2]
The
plaintiff, a commercial bank, has sued the first defendant on what it
alleges is a written agreement (the agreement) in terms
of which it
afforded the first defendant an overdraft facility with it. In terms
of the agreement, it was agreed that the overdraft
would be repayable
by the first defendant on demand. The plaintiff claims that it has
demanded the repayment of the overdraft but
no payment has been made
to it by the first defendant. The plaintiff has accordingly issued
summons against the first defendant
claiming the repayment of the
balance owing on the overdraft account. It was a condition of the
agreement that security in the
form of a deed of suretyship would be
put up for the obligations of the first defendant to the plaintiff.
The second defendant
is that surety and has been joined to the action
because of that fact.
[3]
The
second defendant has now brought an exception to the plaintiff’s
particulars of claim. Uniform rule 23(1) deals with exceptions.
It
provides as follows:
‘
(1)
Where any pleading is vague and embarrassing or lacks averments which
are necessary to sustain an action or defence, as the
case may be,
the opposing party may, within the period allowed for filing any
subsequent pleading, deliver an exception thereto
and may set it down
for hearing in terms of paragraph (f) of subrule (5) of rule (6):
Provided that where a party intends
to take an exception that a
pleading is vague and embarrassing he shall within the period allowed
as aforesaid by notice afford
his opponent an opportunity of removing
the cause of complaint within 15 days: Provided further that
the party excepting
shall within ten days from the date on which a
reply to such notice is received or from the date on which such reply
is due, deliver
his exception.’
[4]
The
notice of exception alleges that the plaintiff’s particulars of
claim lack averments necessary to sustain a cause of action.
There is
therefore no suggestion that the particulars of claim are to be
construed as being vague and embarrassing.
[5]
The
notice of exception itself is not a shining example of such a notice.
It contains argument as well as a commentary on the applicability
of
other Uniform rules which have apparently been resorted to by the
second defendant and which have no bearing on the exception.
A notice
of exception should set out the complaint and no more. In short, this
is not a good example of what a notice of exception
should contain.
[6]
The
notice of exception is presented as a continuing narrative and
appears to comprise a single complaint, not formally being divided
up
into different complaints. But a careful reading thereof demonstrates
that the stream of the narrative has islands of complaints
that are
not necessarily connected to each other. I shall therefore isolate
each of the islands of complaint raised and deal with
them
individually.
[7]
Before
doing so, it is prudent to
briefly
consider the correct approach to an exception. Exceptions are not to
be approached in an over-technical manner,
[1]
meaning that a court ought to look benevolently at a pleading
to which exception has been taken and ought not to be over-critical
of the manner in which it is framed.
[2]
Moreover, as was set out in
Voget
v Kleynhans
:
[3]
‘
[f]or
the purpose of deciding an exception a court must assume the
correctness of the factual averments made in the relevant pleading,
unless they are palpably untrue or so improbable that they cannot
be accepted’.
In
line with the principle that he who alleges must prove, the party
taking the exception bears the onus of establishing that the
pleading
objected to is, indeed, excipiable.
[4]
In establishing this, neither of the parties may adduce any facts
extraneous to what is stated in the pleadings, other than agreed
facts.
[5]
It follows that the
defect in respect of which the exception is raised must appear from
the pleading to which objection
is
taken.
[6]
In discharging the onus
that the excipient bears, it has the duty to persuade the court that
upon every interpretation that the
pleading can possibly bear, no
cause of action is disclosed.
[7]
Finally, a
n
excipient must satisfy the court that it would suffer prejudice of a
serious nature if the offending pleading were allowed
to stand,
and is therefore required to make out a very clear, strong case
before the exception can succeed.
[8]
[8]
The
first ground of exception raised by the second defendant is that the
plaintiff has pleaded that the agreement was a written
agreement and
it has put up a copy of what it says is that written agreement. The
second defendant notes, however, that the agreement
has not been
signed by the plaintiff and therefore submits that because of that
fact, it cannot be regarded as a written agreement.
A cause of action
is therefore not disclosed, so it is submitted.
[9]
The
point raised is superficial and baseless and fails to consider the
specific content of the agreement. The document is comprised
of an
initial section that covers three pages. Those three pages contain,
inter alia, a quotation for the overdraft being offered
to the first
defendant.
[9]
The quotation
proposes an overdraft facility of R950 000, with a monthly overdraft
fee of R1 187.54 and a credit initiation fee
of R10 925.00 and
offered the first respondent an interest rate linked to the prime
rate.
[10]
In
other words, the plaintiff has formulated a proposal, in writing,
relating to the basis upon which it offers an overdraft facility
to
the first defendant. Because it is an offer directed to the first
defendant there is no provision for the plaintiff to sign
the
document: the only party required to sign it is the first defendant.
If the offer was acceptable to the first defendant, it
was required
to sign it. The agreement was, indeed, signed by a person
representing the first respondent. That signature appears
at the
appropriate place on the third of the three pages, affirming that the
offer has been accepted and that the signatory was
authorised to
represent the first defendant.
[11]
Just
above the signature line on the third page of the agreement appears
the following recordal:
‘
The
quotation, declaration, pre-agreement statement, terms and
conditions, application form, the application information supplied
to
FNB telephonically, electronically or by fax and the voice log call
(if applicable) forms the credit agreement (Facility Agreement)
between the Client and FNB.’
[12]
Attached
to the first three pages of the document are the plaintiff’s
standard terms and conditions applicable to the facility
offered to
the first defendant. They are in writing and cover a further two
pages. They do not have a place for signature of either
of the
parties to the agreement.
[13]
It
is abundantly clear from the agreement put up by the plaintiff that
it is a quotation directed to the first respondent and which
was to
either be accepted or rejected by it. In the event of it being
accepted, it would become effective once the first defendant
signed
it. It was not intended to be signed by the plaintiff. Once the first
defendant signed it, the terms recorded in the quotation
became
binding on both parties. It is therefore entirely correct for the
plaintiff to plead, as it has done, that the agreement
between it and
the first defendant was in writing and that the document attached to
the particulars of claim is that writing. The
first ground of
exception must thus fail.
[14]
The
second ground of exception isolated from the notice of exception is
the complaint that the plaintiff has not pleaded in its
particulars
of claim who concluded the agreement on its behalf. In her notice of
exception, the second defendant draws attention
to Uniform rule
18(6), which reads as follows:
‘
A
party who in his pleading relies upon a contract shall state whether
the contract is written or oral and when, where and by whom
it was
concluded, and if the contract is written a true copy thereof or of
the part relied on in the pleading shall be annexed
to the pleading.’
[15]
At
paragraph 3.1 of the plaintiff’s particulars of claim, the
plaintiff pleads as follows:
‘
On
or about
06
NOVEMBER 2019
,
at
DURBAN
the Plaintiff represented by a duly authorised person and the first
Defendant, duly represented, concluded a written
OVERDRAFT
FACILITY AGREEMENT
,
containing the terms and conditions applicable to that facility (the
“overdraft agreement”). A copy of the overdraft
agreement
is annexed hereto as annexure “
POC2
”,
the contents of which the Plaintiff prays be read as if incorporated
herein.’
[16]
This
mode of pleading is routinely followed in this Division without
controversy. It is of no material consequence who the person
was that
acted for either party in concluding the agreement. What is of
significance is that such persons be authorised to act
in that
fashion. That has been pleaded. The actual identity of the
representatives so acting can be revealed by evidence at the
trial.
The particulars of claim are otherwise unobjectionable and the second
ground of exception must suffer the same fate as the
first ground.
[17]
Reference
is made in the notice of exception to further steps taken by the
defendants pursuant to the provisions of Uniform rule
35(12). Those
allegations should not appear in a notice of exception because they
do not arise from the particulars of claim. They
may, therefore, not
be considered in an exception and are, in any event, irrelevant to
the determination of the exception.
[18]
In
the circumstances, the exception was frivolous and ill-considered. It
is perfectly clear what the plaintiff has pleaded and what
it
contends is the written agreement. The second defendant has not
established that it would be prejudiced in any way by pleading
to the
plaintiff’s particulars of claim.
[19]
The
exception must accordingly fail and the second defendant must pay the
applicant’s costs. In my view, it would be fair
to order those
costs to be taxed on scale B.
[20]
I
accordingly grant the following order:
1.
The second
defendant’s exception is dismissed.
2
The second defendant shall pay the plaintiff’s costs, to be
taxed on scale B.
MOSSOP J
APPEARANCES
Counsel
for the excipient:
Mr
M Motala
Instructed
by:
Motala
and Associates
104
Windmill Road
Musgrave
Durban
Care
of:
Cajee
Setsubi Chetty
195
Boshoff Street
Pietermaritzburg
Counsel
for the plaintiff:
Ms
M E van Jaarsveld
Instructed
by:
Schuler
Heerschop Pienaar Xaba Inc
Strubens
Valley
Roodepoort
Gauteng
Locally
represented by:
Venns
Attorneys
30
Montrose Park Boulevard
Victoria
Country Club Estate
170
Peter Brown Drive
Pietermaritzburg
[1]
Telematrix
(Pty) Ltd t/a Matrix Vehicle Tracking v Advertising Standards
Authority SA
2006
(1) SA 461
(SCA) at 465H.
[2]
First
National Bank of Southern Africa Ltd v Perry N.O.
2001
(3) SA 960
(SCA) 972I.
[3]
Voget
v Kleynhans
2003
(2) SA 148
(C) para 9.
[4]
Breetzke
and others v Alexander and others
[2015]
ZAKZPHC 44 para 10;
[2015] JOL 34010
(KZP);
South
African National Parks v Ras
2002 (2) SA 537 (C) 541-542.
[5]
First
National Bank of Southern Africa Ltd v Perry NO and others
,
supra,
para 6.
[6]
Viljoen
v Federated Trust Ltd
1971
(1) SA 750
(O) at 754
;
Vermeulen v Goose Valley Investments (Pty) Ltd
2001 (3) SA 986
(SCA) para 7.
[7]
Francis
v Sharp and others
2004
(3) SA 230
(C) 237G.
[8]
Ibid
at
at
240 E-F and 237 D-I.
[9]
This section of the first page of the agreement has as its heading
the word ‘Quotation’.