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[2024] ZAFSHC 360
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Standard Bank of South Africa Limited v Zada Tech (Pty) Ltd and Another (2097/2024) [2024] ZAFSHC 360 (8 November 2024)
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Reportable
/ Not reportable
Case
no:
2097/2024
In
the matter between
THE
STANDARD BANK OF SOUTH AFRICA LIMITED
(Registration
no: 1962/000738/06)
APPLICANT
And
ZADA
TECH (PTY)
LTD
(Registration
no: 2012/021285/07)
FIRST
RESPONDENT
PIETER
GERHARD CROTS
SECOND
RESPONDENT
Neutral
citation:
The Standard Bank of South
Africa Limited v Zada Tech (Pty) Ltd and Another (2097/2024)
Coram:
Mpama AJ
Heard:
17 October 2024
Delivered:
08
November 2024
Summary:
summary judgment- instalment sale
agreement- bona fide defence
ORDER
1.
The application for summary judgment is
granted against the First and the Second Defendants as per prayers
1-4 of the Notice of
Motion.
2.
The First and the Second Defendants are
ordered to pay the Plaintiff’s cost for the application on
Scale A as contemplated
in Rule 67A of the Uniform Rules of the
Court, jointly and severally, one paying the other to be absolved.
JUDGMENT
Mpama AJ
[1]
This is an opposed
application for summary judgment brought in terms of rule 32 of the
Uniform Rules of the Court against the first
and second defendants.
The cause of action is based on a written sale agreement entered into
between the applicant (plaintiff in
the main action) and the first
respondent (first defendant in the main action) on 1 April 2022. The
second respondent (second defendant
in the main action) stood as
surety for any obligation due to the plaintiff by the first
defendant. In this matter, the parties
will be referred to as in the
main application.
[2]
In terms of the agreement, the plaintiff sold to the first defendant
an Agrico 2 Tower Pivot Complete
with serial no. SAN033594. The
principal debt to be advanced to the first defendant was an amount of
R401 364.30. The cost
of the agreement including interest,
costs, charges and Value Added Tax (VAT) would be an amount of
R542 451.05 payable in
four annual instalments of R108 490.21
and a final payment of R108 490.21.
[3] The
plaintiff alleged that there was a failure to comply with the
obligations in terms of the agreement by the first
defendant and
consequently, instituted action proceedings against the first and
second defendant, jointly and severally, the one
paying the other to
be absolved. When the defendants filed their plea, the plaintiff
caused this application to be issued against
the defendants.
[4]
In an affidavit resisting summary judgment, the defendants averred
that the amounts claimed by
the plaintiff in the particulars of claim
do not align with the figures reflected on the statement and there
are ‘contradicting
figures of the various letters of demand,
certificates of balance and the statement (SJ3) do not align.’
[5]
Summary judgment enables a plaintiff to obtain judgment against a
defendant without the necessity
of going to trial when a defendant
has no defence to a claim based on a liquid document, for a
liquidated amount of money, for
delivery of movable property and for
ejectment. The court must be satisfied that that a plaintiff who
seeks summary judgment has
established its claim clearly on the
papers and the defendants have failed to set up a bona fide defence.
Even before a court considers
whether the defendant has established a
bona fide defence, it is necessary for the court to be satisfied that
the plaintiff’s
claim has been clearly established and its
pleadings are technically in order.
[1]
[6]
The defendant resisting summary judgment
must set out a bona fide defence by disclosing fully the nature
and
grounds of the defence and the material facts relied upon. The
defence must be disclosed with sufficient completeness and
particularity to enable the court to decide whether or not the
affidavit discloses a bona fide defence.
[2]
[7]
Van Loggerenberg indicates:
‘
[T]he
nature and grounds of the defence and the material facts relied upon
therefore in the affidavit should be in harmony with
the allegations
in the plea. In this regard the plea should comply with the
provisions of R18(4) and 22(2), i.e it should clearly
and concisely
state all the material facts relied upon for the defence in order for
the plaintiff, in the context of summary judgment
proceedings, to
consider whether or not the defence as pleaded raises any issue for
trial.’
[3]
[8]
In
Absa
Bank Ltd v Meiring Bank
[4]
it was said:
‘
It
follows that a defendant in a summary judgment application which has
failed to plead all its defenses will be required to apply
to amend
its plea, if it seeks to add any, for the purposes of its opposition
to a summary judgment. A defendant’s failure
to have pleaded
such defenses initially will be material and, in addition to all the
usual requirements to obtain the indulgence
of being granted leave to
amend, will require convincing explanation if it is to exclude the
possibility that a court might infer
delaying tactics and a lack of
bona fides. An additional effect will be that such defendant will
ordinarily have to bear the wasted
costs of the application for leave
to amend and those occasioned by the attendant postponement of the
summary judgment application’.
[5]
[9]
The defence raised in the affidavit to resist summary judgment must
be consistent with the plea.
The plaintiff alleges that the
defendants breached the terms of the agreement in that they failed to
make payments as agreed in
the written agreement. The defendants do
not dispute the failure to pay. On their own admission, they are in
arrears as they failed
to make a repayment to the plaintiff. However,
in their plea they raised the following defence: that the amounts
claimed by the
plaintiff were incorrectly quantified.
[10]
The defendants’ defences in the affidavit resisting summary
judgment are:
Contradicting amounts:
(i)
The defendants contended that the amount
claimed by the plaintiff contradicts what is due by them in terms of
the written agreement
between the parties. In terms of the written
contract, the first defendant’s repayments to the plaintiff
were as follows:
4 payments of R108 490.21 and a final payment of
R108 490.21. The letters of demand delivered to the defendants dated
22 February
2023 and the particulars of claim speak to the same
amounts. The certificate of balance and the statement of account
serve as prima
facie proof of the defendants’ indebtedness.
Acknowledging the payments made by the first defendant after the
issue of summons,
the amounts claimed by the plaintiff have been and
still are consistent throughout the proceedings.
(ii)
It is so that the plaintiff, referring to
the first defendant’s responsibilities in its affidavit,
averred that the first
defendant’s repayments were monthly and
not annual repayments. The plaintiff argued that it was an error as
in terms of the
written agreement the first defendant is to make an
annual payment. I do not think that this is a matter that should
detain us
longer than necessary. Apparent from the affidavit is that
this was a ‘typographical error’ as the amounts indicated
in the affidavit clearly indicate so, and a contrary view cannot be
sustained as the amounts to be paid by the first defendant
would far
exceed the amount owed to the plaintiff.
Non-compliance with
the NCA
(iii)
During the oral submissions, Counsel for
the defendants argued that the provisions of the National Credit Act
34 of 2005 (NCA) are
applicable to the second defendant. It was
further argued that failure by the plaintiff to comply with the NCA
is dispositive of
the application. The plaintiff entered into an
agreement with the first defendant. The second defendant’s role
is secondary
as he only stood as a guarantor. The provisions of
the Act are not applicable in the contract. In addition, the
plaintiff
in its particulars of claim pleaded that the provisions of
the NCA were not applicable. This was not denied by the defendants
and,
furthermore, it was not raised as a possible defence by the
defendants in their affidavit resisting summary judgment. This
argument
has no merit and is an afterthought by the defendants
intended to delay the proceedings.
[11] I
am satisfied that the plaintiff’s claim has been clearly
established and the defendants have failed
to raise a bona fide
defence thereto.
[12]
The general rule is that costs follow suit. The plaintiff has
requested a punitive cost order against the
defendants. An award of
costs is at the discretion of the court and needs to be exercised
judiciously. In an unreported judgment
it was said the ‘[i]t is
known to the parties that in awarding costs this court has a
discretion which should be exercised
judicially upon the
consideration of the facts in the matter and that in essence, a
decision be made where fairness to both sides
should be
considered.’
[6]
In
Public
Protector v South African Reserve Bank
[7]
it was said that ‘costs on an attorney and client scale are to
be awarded where there is a fraudulent, dishonest, vexatious
conduct
and conduct that amounts to an abuse of court processes.’
[8]
I have no reason to deviate from the general rule applicable to the
award of costs. However, the defendants’ conduct does
not
warrant costs on an attorney and client scale.
ORDER
[13] In
the result, I make the following order:
1. The application for
summary judgment is granted against the first and the second
defendants as per prayers 1-4 of the Notice
of Motion.
2. The first and the
second defendants are ordered to pay the plaintiff’s cost for
the application on Scale A as contemplated
in Rule 67A of the Uniform
Rules of the Court, jointly and severally, one paying the other to be
absolved.
L
MPAMA, AJ
APPEARANCES
On
behalf of the applicant:
Advocate
I Macakati
Instructed
by:
Vezi
& De Beer Inc C/O Blair Attorneys
Bloemfontein
On
behalf of the respondents:
Advocate
M Froneman
Instructed
by:
Van
Wyk & Preller Attorneys
Bloemfontein
[1]
Gulf
Steel (Pty) Ltd v Rack-Rite BOP (Pty) Ltd and Another
1998 (1) SA 679
(O) at 683J-684A.
[2]
Maharaj
v Barclays National bank Ltd
1976
(1) SA 418
(A) at 426.
[3]
Van
Loggerenberg
Erasmus:
Superior Practice
,
vol 2, D1-416B16A.
[4]
Absa
Bank Ltd v Meiring Bank
2022 (3) SA 449
(WCC) para
[5]
Ibid para 20.
[6]
Mulder
v Kuhn
(41405/19) [2022] ZAGPPHC 336 para 5.
[7]
Public
Protector v South African Reserve Bank
[2019] ZACC 29; 2019 (6) SA 253 (CC)
[8]
Ibid para 8.