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[2024] ZAECMKHC 107
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Toyota Financial Services (SA) Ltd v Siyakudumisathixo Trading and Enterprise CC and Another (2049/2024) [2024] ZAECMKHC 107 (10 September 2024)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN THE HIGH COURT OF
SOUTH AFRICA
[EASTERN CAPE DIVISION
– MAKHANDA]
CASE NO.:2049/2024
In the matter between:
-
TOYOTA
FINANCIAL SERVICES (SA) LTD
PLAINTIFF
(Registration Number:
1982/010082/06)
And
SIYAKUDUMISATHIXO
TRADING AND ENTERPRISE CC FIRST DEFENDANT
(Registration Number:
CK 2009/115995/23)
SANDILE ERIC
NKOTHANA
SECOND DEFENDANT
JUDGMENT
NORMAN J:
[1]
Plaintiff is Toyota Financial Services South Africa Ltd, a company
duly registered and incorporated
in accordance with company laws of
the Republic of South Africa. Plaintiff is also a registered
financial services provider. It
instituted an action against
Siyakudumisa Thixo Trading and Enterprise CC, a close corporation
duly incorporated and registered
in accordance with the company laws
of the country and the first defendant in these proceedings. The
first defendant had chosen
its
domicilium citandi executandi
for
the purposes of enforcement of the agreement as Mpheko Location,
Mthatha. The second defendant is Mr Sandile Eric Nkothana who
also
resides at Mpheko Administrative Area, Mthatha and chose the same
address as his
domicilium citandi executandi.
[2]
On 28 April 2022 plaintiff who was duly represented by an authorized
employee together with
the first defendant who was represented by the
second defendant entered into a written cost of credit schedule
instalment sale
agreement. The transaction involved the sale and
purchase of a 23-seater bus. Plaintiff contends that this agreement
falls outside
the ambit of the
National Credit Act 34 of 2005
. The
material terms of the agreement were amongst others the following:
“
1.
That plaintiff sold to the first defendant who purchased from it a
motor
vehicle described as a 2022 Toyota Coasta 4.0 D 23-seater B/S
with engine number N[…] chassis number JT[…] and
vehicle
registration plate number J[…] EC. The total purchase
price of the vehicle was R1 307 520. The cash price for the
vehicle was R932 899.55.”
[3]
The parties further agreed that the first defendant would pay
interest on the total amount
payable at the fixed rate of 13% per
annum and the agreement was to subsist for a period of 61 months. It
was to commence on 28
April 2022 and expire on 01 May 2027. The
first instalment was the amount of R21 792.00 payable per month.
At the time
of the conclusion of the agreement no deposit was paid by
the first defendant. It was further agreed that the plaintiff was to
remain the legal owner and title holder of the goods until all
outstanding amounts were paid under the agreement. It was further
agreed that in the event that the first defendant failed to pay any
amounts due under the agreement then the plaintiff may claim
from the
first defendant the full amount due and payable and plaintiff
would be entitled to cancel the agreement, take the
goods back, sell
the goods, keep all the instalments that had been paid and claim any
balance from the first defendant as damages.
[4]
The first defendant agreed to pay all the legal costs on the scale as
between attorney and
client as well as any collection costs incurred
under the debt collectors, any disbursements, administrative and
collection charges
as well as collection commission on any of the
payments made if the matter is referred to a debt collector or an
attorney. That
all legal notices were to be sent to the physical
address chosen by the first defendant or provided by the first
defendant.
[5]
It is common cause that the goods were duly delivered by the
plaintiff to the second defendant
in accordance with the agreement.
Plaintiff contends that it complied with all of its obligations in
terms of the agreement. It
alleges that the first defendant breached
the provisions of the agreement in that as at 06 March 2024 the first
defendant had fallen
into arrears in the sum of R150 744,60. A
certificate of balance as agreed between the parties is relied upon
by the plaintiff
for its claim. It alleged that notwithstanding
demand first defendant failed, neglected and/or refused to pay the
arrear amount
of R150 744,60.
[6]
As a result of such breach plaintiff claimed the full outstanding
balance in the amount
of R978 840,60 plus interest at the fixed
rate of 13% per annum as from 06 March 2024 to date of payment.
Plaintiff further
demands return of the bus in terms of the
agreement.
[7] The
claim against the second defendant is based on a suretyship agreement
where he bound himself jointly
and severally as surety and
co-principal debtor for the punctual payment of all sums due to the
plaintiff by the first defendant
in terms of the agreement up to the
value of R956 252,05. There are various other terms that were
agreed by the parties which
relate to suretyships and are standard in
matters of this nature.
[8]
On 11 September 2023 it is alleged that the second defendant on
behalf of the first defendant
entered into a suitable payment
arrangement with the plaintiff’s attorneys but defaulted on
payments and the account remained
substantially in arrears.
[9]
In paragraph 18 of the particulars of claim the following allegation
is made:
“
The
provisions of the
National Credit Act No.34 of 2005
hereinafter
referred to as the Act are not applicable to the cause of action
herein, having regard that the agreement does not
constitute a credit
agreement as defined in terms of the Act. None of the provisions of
the Act are accordingly applicable to the
agreement.”
[10]
Both defendants are defending
the action and are resisting the summary judgment application.
Defendants case
[11]
Defendants took various special pleas:
(a) That this
court lacks jurisdiction because the cause of action did not arise in
Makhanda, they reside at Mpheko
in Mthatha, their chosen
domicilium
citandi
and did not consent to the jurisdiction of this court.
(b) Plaintiff’s
non – compliance with the provisions of
section 129
National
Credit Act, 34 of 2005 (‘the NCA’) in that an instalment
agreement that falls outside the
National Credit Act falls
foul of
the law and that failure to give notice led to premature litigation.
(c) Plaintiff’s
non – compliance with Rule 41A of the Uniform Rules of Court
has led to lack of facilitation
of possible mediation in the matter.
[12]
The defendants also pleaded to the merits of the claim. They pleaded
that during May 2024 plaintiff
indicated that defendants had paid
R92 000.00. They were further advised to continue paying
instalments and to ignore the
summons which were, at the time, with
the sheriff in Mthatha. They denied any liability to the plaintiff.
The second defendant
stated that the contents of the suretyship
agreement were never explained to him because everything was done in
haste.
[13]
Upon receipt of the plea plaintiff delivered a summary judgment
application. In an affidavit deposed
to by Mr Aphiwe Mayola, the
Operational Manager of the plaintiff, he dealt with the special
pleas. In his response to the jurisdiction
point he stated that the
defendants fail to recognize that this Court has concurrent
jurisdiction with all other Divisions of the
High Court in the
Eastern Cape Province, being the main seat of the Court in the
Eastern Cape. On this basis he averred that the
jurisdiction point
lacks merit.
[14]
In relation to the section 129 of the NCA notice plaintiff relied on
clause 22.1 of the agreement and
stated:
‘
In
this respect clause 22.1 of the agreement contains a specific
acknowledgment by the defendants, which reads as follows:
“
You
agree that all the information you have provided to the Seller before
entering this Agreement, is true and correct
and
that, based on this information, you are not subject to the
National
Credit Act 34 of 2005
.”
[15]
He responded to the special plea relating to
Rule 41A
and attached
the sheriff’s returns of service as evidence that the
Rule 41
A
notice was delivered to both defendants. He contended that all the
special pleas cannot be sustained at trial.
[16]
Plaintiff denied that the second defendant was advised to ignore the
summons. He confirmed that during May
2024 the second defendant was
at the plaintiff’s offices where payment of R92 000.00 was
pointed to the defendant on
the statement and was advised that the
outstanding balance reflected on the statement was correct. He
contended that the defenses
advanced by the defendants fail to raise
any issues for trial and that plaintiff is entitled to summary
judgment.
Jurisdiction point
[17]
Mr Nonkelela argued that this court does not have jurisdiction to
hear the matter. He submitted that
because the
domicilium citandi
et executandi
is Mpheko in Mthatha, it is the Mthatha High Court
that has jurisdiction. He argued that the institution of the
action in
this court has caused the defendants to incur huge expenses
at great inconvenience to them. Ms Sephton argued that Mthatha falls
under the jurisdiction of this court as this is the main seat of the
Division.
[18]
The Supreme Court of Appeal in
Joob
Joob Investments (Pty) Ltd v Stock Mavundla Zek Joint
Venture
[1]
,
held that the time has come to discard the labels such as
‘extraordinary’ and ‘drastic’ when reference
is made to the summary judgment procedure. The fact that it
disposes of spurious defences is useful in cases where a defendant
seeks to delay
finalization
of a matter. I now to proceed to examine whether the defenses raised
by the defendant are
bona
fide
.
[19]
The following clause of the agreement is relevant:
“
17.
South African law to apply
You agree that the
laws of the Republic of South Africa shall apply to this Agreement
and that the Magistrates Court shall have
jurisdiction over any
proceedings that may arise from this Agreement unless the Seller
chooses the High Court.”
[20]
In the main they pleaded,
inter alia
:
“
AD
PARAGRAPHS 17 AND 18
Defendants deny the
allegations contained herein. Further aver that the Court that has
the requisite jurisdiction to hear the matter
is Mthatha High Court.”
[21]
In an article submitted by Strauss Daly Attorneys,
dated 2 August 2023 the firm explains the meaning of
the term
domicilium
citandi et executandi
and its implications in contracts. They refer to
Amcoal
Colleries Ltd v Truter
[2]
,
where the Supreme Court of Appeal held that a person’s
domicilium
citandi et executandi
can be chosen in a contract and that service of process at that
address is good service, even if the person is not present at the
time of service. They define
domicilium
citandi et executandi, as a Latin phrase that means ‘
house
for being summoned
and
executed upon”.
[22]
It is important to note the following facts: The agreement was not
concluded in the main seat (but
in Scottburg in Kwa Zulu-Natal),
plaintiff resides in Sandton, Gauteng province) and the defendants
reside in Mthatha. There is
a High Court in Mthatha where the
defendant is resident. His contention that the plaintiff ought
to have sued out of the
Mthatha is not preposterous because the
plaintiff must follow the defendant. To confine jurisdiction to
territorial jurisdiction
leads to the neglect of the consumer
protection purpose that
Herbstein & Van Winsen,
referred
to below
,
mentions. There must be other jurisdictional factors
that ground jurisdiction. Most importantly, to disregard the distance
and
the inconvenience that the defendants complain of would undermine
a constitutional imperative, that courts, must be easily accessible.
It may be argued that to follow this reasoning flood gates would be
opened where defendants would raise this defense to the prejudice
of
the plaintiff who is
dominus litis.
I would disagree for this
reason: A clear and unambiguous consent to the jurisdiction of
a specified High Court could be
sought and obtained from the
defendant at the time agreements are concluded. That would give
parties an opportunity to discuss
costs that would be involved if a
particular High Court were to be approached. This is what plaintiff
pleaded when justifying jurisdiction:
“
19.
The above Honourable Court has jurisdiction to hear this matter,
having regard that
the whole
cause of action arose within the area of jurisdiction of the above
Honourable Court
and that the
First and Second Defendants’chosen domicilium citandi et
executandi for the purpose hereof are situated within
the area of
jurisdiction of the above Honourable Court.”
(my
underlining)
[23]
The underlined allegation loses sight of the fact that both the
instalment sale agreement and the suretyship
agreements were entered
into in Kwa Zulu - Natal. The delivery receipt of the goods took
place in Scottburgh. The second
ground of the
domicilium
citandi et executandi
relates to territorial jurisdiction that
the main seat of the Division has.
[24]
It is apparent from the annexures to the agreement between the
parties that both defendants reside in Mthatha.
The Certificate
issued by the Registrar of Companies & Close Corporations
attached to the record as B8, the registered address
of the First
Defendant is Mpheko Location, Mthatha, 5100. There is also another
document issued by the Umtata Taxi Owners Association
confirming that
the First Defendant is permitted to ‘route’ from Mthatha
up to the Republic of South Africa. The
Second Defendant
furnished his address in the agreement as Mpheko Administrative Area,
Mthatha. The agreement itself was
entered into at Halfway
Totota, Scottburgh, 31 Stevens Road, Old Main Road, Park Rynie, 4182,
Tel: 039 978 7500; in the province
of KwaZulu - Natal. It
also appears that the bus in question was registered in Scottburgh on
the same day of the signing
of the agreement between the parties.
The Plaintiff’s branch offices are recorded as 1 Wesco Park,
Old Pretoria Road,
Sandton, 2196. The sheriff for the High
Court, Mthatha served a letter of demand and the sheriff’s
return of service
stated that the process was served on the second
defendant at Mpheko Administrative Area, Mthatha.
[25]
The objects of the Superior Courts Act, No. 10 of
2013 ( ‘the SCA’) , are to, amongst
others, bring
the structure of the Superior Courts in line with the provisions of
Chapter 8
and
the transformation imperatives of the Constitution
;
and to make provision for the administration of the judicial
functions of all courts
[3]
.
Chapter 8 of the Constitution deals with,
inter
alia,
the Courts, appointment of judicial officers, judicial authority and
matters related thereto. It is common cause that the seat
of the
Eastern Cape Division is in Grahamstown, now known as Makhanda
[4]
.
[26]
In the old decision of
Sciacero
& Co v Central SA Railways
[5]
,
Innes
CJ said
:
“
The
general rule with regard to the bringing of actions is actor sequitur
forum rei. The plaintiff ascertains where the defendant
resides, goes
to his forum, and serves him with the summons there.
[27]
This
rule has been rendered obsolete by plaintiff instituting the action
at its convenience in an area where even if there is territorial
jurisdiction but there are no other factors present to ground
jurisdiction. Where there are at least two High Courts that
have jurisdiction over the defendants the closest to their place of
residence should be preferred. I say this because Google maps
gives
the distance between Mpheko Administrative Area and Mthatha as 14.1
km and traveling time as 34 minutes. Google maps gives
the distance
between Mthatha and Makhanda as 406.4 km via R61 and R67 and the
travelling time as 4 hours 51 minutes. If one travels
via R67 the
travelling time is 5 hours 33 minutes and the distance is 447.6 km.
In my view, the objection raised by the defendants
is
bona
fide
and it calls for consideration
by the trial court.
[28] Chapter
6 of the SCA provides for provisions applicable to the High Court
only. The provisions of section
21 (1) of the SCA do give
effect to the abovementioned principle.
“
Persons over
whom and matters in relation to which Divisions have jurisdiction
21. (1) A
Division has jurisdiction over all persons residing or being in, and
in relation to all causes arising and
all offences triable within,
its area of jurisdiction and all other matters of which it may
according to law take cognisance, and
has the power—
(a) to hear and
determine appeals from all Magistrates’ Courts within its area
of jurisdiction;
(b) to review
the proceedings of all such courts;
(c) in its
discretion, and at the instance of any interested person, to enquire
into
and determine any existing, future or contingent right or
obligation, notwithstanding that such person cannot claim any relief
consequential
upon
the determination.
(2)
A Division also has jurisdiction over any person
residing or being outside its area of jurisdiction who is joined
as a
party to any cause in relation to which such court has jurisdiction
or who in terms of a third party notice becomes a party
to such a
cause, if the said person resides or is within the area of
jurisdiction of any other Division.
(3)
...”
[29]
In
casu
,
the first defendant, carries on its business in Mthatha as
aforementioned. In the
Sciacero
decision, the Court of Appeal regarded the place of business of a
person as a place ‘where its general superintendence and
management takes place’
[6]
.
[30]
Herbstein
and Van Winsen
[7]
state:
“
The
principle underlying the rule ‘actor sequitur forum rei’
was almost certainly effectiveness, but, today, the rule
serves an
important consumer protection purpose in that the consumer who is a
defendant must be sued in the jurisdiction of the
court where he or
she resides unless there is a ground which gives the court of another
area jurisdiction.”
[31]
In my view, the objection to the bringing of litigation before this
court is not spurious and is an issue
that constitutes a triable
issue. It may lead to the matter being transferred to the
Mthatha High Court if the trial court
is with the defendants on this
issue.
Failure to file the
Rule 41 A Notice
[32]
Rule 41 A provides:
“
41A.
Mediation as a dispute resolution mechanism
(1) In this
rule—
“
dispute”
means the subject matter of litigation between parties, or
an aspect thereof.
“
mediation”
means a voluntary process entered into by agreement
between the parties to a dispute, in which an impartial and
independent person,
the mediator, assists the parties to either
resolve the dispute between them, or identify issues upon which
agreement can be reached, or explore areas of compromise, or generate
options to resolve the dispute, or clarify priorities, by
facilitating discussions between the parties and assisting them in
their negotiations to resolve the dispute.
(2)
(a)
In every new action or application proceeding,
the plaintiff or
applicant shall, together
with the summons or combined summons or
notice of motion, serve on each defendant or respondent a notice
indicating whether such
plaintiff or applicant agrees to or opposes
referral of the dispute to mediation.
(b)
A defendant or respondent shall, when delivering a notice of
intention
to defend or a notice of intention to oppose, or at any
time thereafter, but not later than the delivery of a plea or
answering
affidavit, serve on each plaintiff or applicant or the
plaintiff’s or applicant’s attorneys, a notice indicating
whether
such defendant or respondent agrees to or opposes referral of
the dispute to mediation.
(c)
The notices referred to in paragraphs (a) and (b) shall be
substantially
in accordance with Form 27 of the First Schedule and
shall clearly and concisely indicate the reasons for such party’s
belief
that the dispute is or is not capable of being mediated.
(d)
Subject to the provisions of subrule 9(b) the notices referred to in
this subrule shall be without prejudice and shall not be filed with
the registrar.
(3)
(a)
Notwithstanding the provisions of subrule (2), the parties may at any
stage before judgment, agree to refer the dispute between them to
mediation: Provided that where the trial or opposed application
has
commenced the parties shall obtain the leave of the court.
(b)
A Judge, or a Case Management Judge referred to in rule 37A or the
court
may at any stage before judgment direct the parties to consider
referral of a dispute to mediation, whereupon the parties may agree
to refer the dispute to mediation.”
[33]
Mr Nonkelela submitted that no
notice was received by the defendants in terms of Rule
41A. Ms
Sephton in response submitted that it was open to the defendants to
issue such a notice. Ms Sephton’s
submission in this
regard is correct. The relevant rule also provides for the defendants
to issue a notice indicating whether they
agree or are opposed to the
referral of the dispute to mediation
[8]
.
[34]
It is in that notice that they must clearly and concisely state the
reasons for their
belief that the dispute is either capable or not of
being mediated. According to the sheriff’s returns of
service the
Rule 41A notices were served upon the defendants on 19
June 2024. The sheriff’s return of service constitutes
prima facie
proof of service. This complaint must accordingly
fail.
No section 129 notice
[35]
The defendants complained that
the section 129 notices were not delivered as they should
have in
terms of the NCA. Mr Nonkelela submitted that the plaintiff was
obliged to issue those notices prior to the institution
of the
action. Ms Sephton submitted that the agreement was a large agreement
and therefore section 129 does not find application.
Plaintiff
had instead issued letters of demand. Ms Sephton, in argument,
undertook to place certain decisions, one in support
of her argument
that where there is a large agreement it falls outside the NCA and
there is thus no requirement that a section
129 notice be served.
The one dealt with whether a surety is entitled to be served with a
section 129 notice prior to institution
of legal proceedings. She
relied on
Shaw
& another v Mackintosh & Another
[9]
for
the contention that the agreement was a large agreement and the
section 129 notice was not required. In the agreement itself
and in
line with what is stated in the
Shaw
judgment
,
there is a clear endorsement in paragraphs 4 of the particulars of
claim that the parties entered into ‘a written Cost of
Credit
Schedule Instalment Sale Agreement (Outside the NCA), incorporating
the Plaintiff’s Terms and Conditions for an Instalment
Sale
Agreement Outside the NCA (hereinafter referred to as the
Agreement). This much is also apparent from clause 18 of the
agreement which is referred to above. The first defendant is a
juristic person and therefore the NCA cannot come to its aid.
This point in so far as it relates to the first defendant lacks
merit. The application of the provisions of the NCA are excluded
where the surety relates to an agreement involving a juristic
person. Because this is a point of law that affects the second
defendant who is a natural person, in my view, he is not
precluded from challenging that law , if he so wishes.
In relation to him as a natural person the point may be debatable at
trial.
[36]
Ms Sephton also relied on a judgment penned by
Satchwell
J in
First
Rand Bank Ltd v Carl Beck Estates (Pty) Ltd & another
[10]
for
the contention that plaintiff was not required to issue the section
129 notice to the surety.
[37]
In the
FirstRand Bank
case, referred to above at paragraph 23
Satchwell J stated:
‘
23.
Second respondent
could
not be and was not sued in his capacity as co- principal debtor
since his liability to the Bank remains that of surety who has
renounced certain rights. This position is correctly referred to
by
the applicant in its summons
.”
(footnotes omitted) (my underlining)
[38]
The facts and the allegations made in the
FirstRand
Bank
case are not distinguishable from the facts of this case in that the
plaintiff herein sues the ‘
second
defendant
as
surety , in solidum and as a co- principal
debtor
together with the First Defendant
,
in favour of the plaintiff..’
He
is being sued as a surety. There are numerous references to
surety
or co- principal debtor
in the particulars of claim
[11]
.
Plaintiff in the surety agreement, unlike in the agreement between it
and the first defendant did not exclude the application
of the NCA.
Instead it stated: ‘If
the
National Credit Act 34 of 2005
does not apply
to the agreement, the following benefits are also waived: noncausal
debiti, errore calculi, non-numeratae pecuniae.” (my
underlining)
Be
that as it may the legal position referred to above stands.
No explanation of the
terms of the suretyship agreement
[39]
The second defendant complains that the contents of the suretyship
agreement were never explained to him
because everything was done in
haste.
[40]
The defendants in response to allegations made in paragraphs 14 to 16
of the particulars of claim pleaded
as follows :
‘
AD
PARAGRAPH 14 TO 16
Save to admit that
Second Defendant entered into a suretyship agreement with the
Plaintiff, the remainder of the allegations are
denied. Second
Defendant further pleads that the contents of the said agreement were
never explained to him, as everything was
done in haste.’
[41]
Plaintiff disputes these allegations and has dealt with them in the
application for summary judgment.
Mr Mayola stated that the
second defendant was under no duress to sign the suretyship and
should he have deemed it necessary he
should have sought independent
advice. He did not avail himself of the opportunity and as such is
bound by the terms of the suretyship
agreement. This response
is a response that together with the allegations made by the second
defendant must be tested by
the trial court.
[42]
In the work of
Lee and Honore’
, entitled “The
South African Law of Obligations’
, second edition at
page 173 para 484 they state the following:
“
484.
Duty of disclosure
Although
suretyship is not a contract uberrimae fide, a surety is entitled to
be informed as to the real nature of the transaction
between the
creditor and the principal debtor in respect of which he promises to
be liable. The extent of the duty of disclosure
depends upon the
circumstances of each case.”
[12]
[43]
Caney’s work entitled “
The
Law of Suretyship”,
sixth
edition, by CF Forsyth & JT Pretorius page 64 para 3 emphasize
that since the creditor and surety must be
ad
idem
in making the contract, the absence of consent on the part of the
surety will vitiate the contract. They further state that
the
principles in relation to this in the formation generally of
contracts apply to the making of contracts of suretyship.
[13]
[44]
In a decision by the Full Bench
in
Prins v ABSA Bank Ltd
[14]
,
the
Court found that the bank official did not explain the contents of
the contract to the sureties and that public interest demanded
that a
complicated document of this nature had to be explained to the
signatory, especially where the signing of the document could
have
drastic consequences.
[45]
The plea and the affidavit resisting summary judgment do reveal a
bona fide defense. In addition, the
determination of whether or not
the suretyship contract was explained to the second defendant or
whether there was full disclosure
of the contents thereof is a
triable issue. Sutherland J (as he then was) stated in
Absa
Bank Ltd v Jenzen and a Similar Case
[15]
stated
that assuming that the allegations on which the defendants relied for
disputing the terms of the loan agreements eventually,
at the
trial, turned out to be spurious, the only way that such outcome was
possible, was after evidence in that regard had been
presented at the
trial and the meritless of the allegations had been proved.
The payment of the
debt
[46]
The plaintiff relied on the certificate of balance for the claim.
However, at paragraph
16 of the
particulars of claim plaintiff alleged:
“
16.
The Second Defendant, on behalf
of the First Defendnat (sic), entered into a suitable payment
arrangement
with
the Plaintiff’s Attorneys of Record on 11 September 2023, but
has defaulted on payments. The account remains substantially
in
Arrears, as is evident by the Detailed Statement attached hereto and
marked ‘I’.
[47] There is
no statement marked “I” on record and on the index
compiled by the plaintiff. The details
of the suitable payment
arrangement are not given and there is no statement marked “I”
as aforementioned. That detailed
statement is also not attached to
the summary judgment application. Had the plaintiff given those
details and the defendants simply
denied them, the approach I adopt
herein would be different.
[48] I am
satisfied that there is a bona fide defense raised by the defendants.
It follows that summary judgment must
be refused.
ORDER
[49]
I
accordingly make the following Order :
1.
Summary judgment is refused.
2.
First and Second Defendants are
granted leave to defend the action.
3.
Costs are reserved.
_________________________
T.V. NORMAN
JUDGE
OF THE HIGH COURT
APPEARANCES:
For the
PLAINTIFF
: ADV
SEPHTON
Instructed
by
: JOUBERG
GALPIN SEARLE
TEL:
041 880 1067
EMAIL:
vanessac@jgs.co.za
c/o :
HUXTABLE ATTORNEYS
26
NEW STREET
MAKHANDA
TEL:
046 622 2692
REF:
TOY3/0690/Vanessa/Innis Du Preez
For the
DEFENDANT
: ADV
NONKELELA
Instructed
by
: V.
NKOTHANA ATTORNEYS
MTHATHA
5100
c/o
: YOKWANA
ATTORNEYS
10
NEW STREET
MAKHANDA
6139
TEL:
046 622 9928
Matter heard on :
03 September 2024
Judgment
delivered on : 10 September 2024
[1]
Joob
Joob Investments (Pty) Ltd v Stocks Mavundla Zek Joint Venture
2009 (5) SA 1
(SCA) at 11G -12D.
[2]
Amcoal
Colleries Ltd v Truter
1990
(1) SA 1 (A).
[3]
The
Superior Courts Act No. 10 of 2013 (the SCA); section 2 (a) (b) and
(c).
[4]
See: Section 6 (1) of the SCA.
[5]
Sciacero
& Co v Central SA Railways
1910 TPD 119 at 121.
[6]
Sciarero
& CO v CSAR
1910
TPD page 122.
[7]
The Civil Practice of the High Courts and the Supreme Court of
Appeal of South Africa, Fifth Edition, Volume 1 page 67.
[8]
Rule
41A (2)(b) and (c).
[9]
Shaw
& another v Mackintosh & Another
(267/17)
[2018] ZASCA 53
(29 March 2018).
[10]
First
Rand Bank Ltd v Carl Beck Estates (Pty) Ltd & Another
Case
No. 56174/2007 (Transvaal Provincial Division) dated 25 September
2008.
[11]
Particulars of Claim, para 15.15, 15.16, 15.17,15.18,15.19 , 15.22
and 17.
[12]
Caney
38, 39;
Trans
Drakenssberg Bank Ltd v Guy
1964 (1) SA 790
at 797 -8 (D); See also (1961) 78 SALJ 137.
[13]
Keens
Group Co (Pty) Ltd v Lotter
1989 (1) SA 585
(C);
Prins
v ABSA Bank Ltd
1998 (3) SA 904
(C) Caney’s: The Law of Suretyship page 64
para 3.
[14]
Prins
v ABSA Bank
page
371 F-H para 24.
[15]
Absa
Bank Ltd v Jenzen and a Similar Case
(unreported,
GJ, case nos. 2014/ 877 and 2014/7728 dated 2 August 2021 at para
18).