SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document
in compliance with the law and SAFLII Policy
REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
LIMPOPO DIVISION, POLOKWANE
CASE NUMBER: 3083/2024
(1) REPORTABLE: YES/NO
(2) OF INTEREST TO THE JUDGES: YES/NO
(3) REVISED.
DATE: 1 1 FEBRUARY 2025
SIGNATURE:
In the matter between:
ABSA BANK LIMITED APPLICANT /PLAINTIFF
-and-
LADUMA FOODS FIRST RESPONDENT
/DEFENDANT
LADUMA BISCUIT S (PTY) LTD SECOND RESPONDENT
Registration number: 2004/013025/07 /DEFENDANT
EQUISTOCK PROPERTIES 8 (PTY) LTD THIRD RESPONDENT
Registration number: 1999/023534/07 /DEFENDANT
WILLEM NICOLAAS SAAYMAN OOSTHUIZEN FOURTH RESPONDENT
Identity num ber: 6 […] /DEFENDANT
KAREN OOSTHUIZEN FIFTH RESPONDEN T
Identity number: 7 […] /DEFENDANT
JUDGMENT
BRESLER AJ:
Introduction:
[1] The matter came before court as an opposed Summary Judgment.
[2] The Applicant / Plaintiff’s case is briefly the following:
2.1 On or about the 7th of June 2022, the Plaintiff and the First Defendant
entered into a written agreement in terms whereof the Plaintiff made available
to the First Defendant an overdraft facility and a credit card facility.
2.2 It was pertinently agreed between the parties that all amounts payable
under the agreement would be repayable upon written demand by the Plaintiff
and an y undrawn portion of the facility would be cancelled by the Plaintiff at
any time.
2.3 Should the First Defendant default under the terms of the agreement,
the Plaintiff will notify the First Defendant in writing (a ‘Default Notice’) and
allow the First Defendant an opportunity to bring the First Defendant’s
financial obligations up to date.
2.4 The First Defendant will be in default should the First Defendant fail to
comply with any provision of the First Defendant’s agreement with the Plaintiff.
2.5 The Plaintiff complied with all its obligations under the agreement. The
First Defendant breached the agreement in that it failed to make regular and /
or sufficient payments into the transactional account, alternatively failed to
reduce the account with th e amount of R750,000.00 as agreed between the
parties.
2.6 The balance owing to the Plaintiff on the overdraft facility is repayable
on demand in terms of the agreement.
2.7 The Second, Third, Fourth and Fifth Defendants bound themselves
jointly and severally, as sureties and co -principal debtors for the indebtedness
of the First Defendant. As a result of the First Defendant’s breach of the
agreement, the full amount became du e, owing and payable by the Second,
Third, Fourth and Fifth Defendants.
2.8 On 8 March 2023, the Plaintiff’s attorney caused a written demand to
be served on the First Defendant.
2.9 Letters of demand were also sent to the Second, Third, Fourth and
Fifth Defendants in their capacities as sureties and co -principal debtors.
2.10 The provisions of the National Credit Act, Act 24 of 2005, do not apply
to the agreement concluded between the parties.
2.11 The First, Second, Third, Fourth and Fifth Defendants have failed to
make payment and the Plaintiff is therefore entitled to judgment as prayed for.
[3] The Respondents / Defendants submit in their Plea:
3.1 The terms of the agreement are not disputed.
3.2 The breach by the First Defendant is denied – no particulars are
provided as to this bare denial.
3.3 The outstanding balance is denied – no particulars or counter version
is presented pertaining to the outstanding balance.
3.4 The Defendants consequently denies liability in toto .
[4] The Defendants elected not to deliver an Opposing affidavit. A notice of
security was delivered as contemplated in Uniform Rule 32(3)(a), inter alia stating
the following:
‘The Defendants / Respondents herewith give security to the Plaintiff /
Applicant as follows:
6.1 Further pledging of the bond already registered over the property
known as Erf 1[...], Groblersdal Extension 22, Registration Division J.S.,
Limpopo Province, in favour of the Plaintiff.
6.2 Consent to register a further bond over the property known as Erf 1[...],
Groblersdal Extension 22, Registration Division J.S., Limpopo Province, in
favour of the Plaintiff for any further amount that might be owed.
6.3 I further undertake and confirm that no further withdrawals will be made
from the bond accounts a nd hereby consent that a relevant hold to that effect
may be put on the bond account.’
[5] This Court is therefore called upon to determine if the defence, raised by the
Defendants, constitutes a bona fide triable issue and if the security should be
acce pted as an alternative.
Applicable law:
[6] Uniform Rule 32(3)(a) provides that a Defendant may give security to the
satisfaction of the court for any judgment including costs which may be given.
[7] Erasmus, Superior Court Practice , Volume 2 stat es the following on page
32-70:
‘In this regard the plea should comply with the provisions of rule 18(4) and
22(2) i.e. it should clearly and concisely state all the material facts relied upon
in order for the plaintiff, in the context of summary judgme nt proceedings, to
consider whether or not the defense as pleaded raises any issues for trial.
Otherwise, the purpose of rule 32 in its amended form would be defeated. If
the plea is, for example, one of bare denial which does not raise any issue for
trial, the defendant should not be allowed, in the absence of a notice to
amend the plea in order to properly set out its defence to the action, to rely on
the affidavit resisting summary judgment in which the nature and grounds of a
bona fide defence and the m aterial facts relief upon therefore, which are
unrelated to the bare denial in the plea, are set out. A defendant who intends
to disclose a bona fide defence in its affidavit which is not raised in its plea
should first, deliver a notice of intention to am end the plea in terms of rule
28(1).’
[8] In analysing the Plea, this Court holds the view that same constitutes a bare
denial. More specifically, the Court cannot see how an admission of the terms of the
agreement is compatible with a bare denial of the breach of the terms thereof or the
outstanding balance without, at the very least, setting out how the terms were
complied with. The Court cannot go on a venture to speculate what the bare denial
may possibly entail.
[9] The Plea, as it stands, therefore does not disclose a defence to the claim of
the Plaintiff and definitely does not raise any triable issue.
[10] In the case of Gralio (Pty) Ltd v DE Claassen (Pty) Ltd1 the learned Justice
Miller JA stated the following:
‘Rule 32 (7) provides that, if the defendant finds security or satisfies the Court
as provided in sub -rule (3), the Court shall give leave to defend. Counsel fo r
the defendant contended before us that, notwithstanding that defendant
admitted that it had no defence to that part of the claim in respect of which
liability was admitted and notwithstanding the provisions of Rule 32 (6) (b) (ii),
the Court a quo was ob liged in terms of Rule 32 (7) to give it leave to defend
because of the provision by defendant of security 'as provided in sub -rule (3)'.
It is true that Rule 32 (3) (a) provides that in proceedings for summary
judgment the defendant may give security to t he plaintiff to the satisfaction of
the Registrar 'for any judgment including costs which may be given...' and that
such provision, read with Rule 32 (7), enables a defendant to avoid summary
judgment by the provision of the r equisite security, even if he may not have
satisfied the Court, in terms of Rule 32 (3) (b), that he has a bona fide defence.
(See Spring and Van den Berg Construction (Pty) Ltd v Banfrevan Properties
(Pty) Ltd 1968 (1) SA 326 (D) at 328A.) I am unable to accept, however, the
defendant's contention that Rule 32 (3) (a), when read with Rule 32 (7),
enables a defendant, who admits liability and concedes that he has no
defence to the claim, to escape summary judgment by giving security for the
amount which he admits to be due and owing. So, to hold would be to reduce
the remedy of summary judgment to absurdity. It has frequently been said that
the procedure of summary judgment provides an extraordinary and drastic
remedy and it may be accepted that the Courts w ill not lightly deprive a
defendant, who might have an answer to the claim, of his ordinary right to
defend . But, as CORBETT JA pointed out in Maharaj v Barclays National
Bank Ltd 1976 (1) SA 418 (A) at 423G, the grant of the remedy of summary
judgment
1 1980 (1) SA 816 A at 826
'is based upon the supposition that the plaintiff's claim is
unimpeachable and that the defendant's defence is bogus or bad in
law'.
A plaintiff seeking summary judgment is required to support his application by
a sworn statement, to be made by himself or any person able to swear
positively to the facts, that in his opinion there is no bona fide defence and
that notice of intention to defend has been delivered solely for the purpose of
delay. (Rule 32 (2).) It would be more than passing strange if a defenda nt who
in reply to such a statement conceded that he had no defence and had
entered appearance to defend in order to gain time were able, by giving the
requisite security, to secure the delay which it is the very object of the
summary judgment remedy to prevent . Moreover, Rule 32 (7) requires that a
defendant who has provided the requisite security shall be given leave to
defend. It is inconceivable that it was intended that the Court would be obliged
to give leave to defend to a defen dant who frankly avowed that he had no
defence to advance.’
(own underlining)
[11] It must be borne in mind that Rule 32 has since been amended to provide that
security must satisfy the Court . Over and above for the fact that the Plea is evidently
a bare denial of the Plaintiff’s case, and does not raise a triable issue, this Court is
not satisfied with the security presented by the Defendant.
[12] It is not evident if the security will be sufficient as the Court is not privy to the
outstanding balan ce on the bond account or a market related valuation on the
immovable property. It would also force the Court to make an agreement between
the Plaintiff and the First Defendant pertaining to the registration of the further
covering bond. I therefore tend t o agree with the Plaintiff that the bond does not
satisfy the requirement of ‘security’ as envisioned by the legislature in the new
Uniform Rule 32.
[13] A court has a discretion to either grant or refuse summary judgment. This
discretion is not premised on mere conjecture or speculation but must be exercised
on the basis of the material before court . Van Niekerk, Summary Judgment – A
Practical Guide , Lexis Nexis states2:
‘In the absence of allegations on which any defence can be based it would be
wron g to exercise a discretion against the plaintiff purely on the basis of
speculation or assumption – this may result in an injustice being done to the
plaintiff.’
[14] No bona fide defence is before court and no triable issue is raised. The terms
of the s uretyship are likewise not in dispute. The Application for Summary Judgment
must succeed against all the Defendants.
[15] The agreement concluded between the parties contains a consent to costs
being paid by the Defendants on a higher scale as between at torney and client.
There is no reason to deviate from the agreement in this respect in so far as the
terms of the agreement are not in dispute between the parties.
Order:
[16] In the result the following order is made:
16.1 Summary Judgment is grated against the First, Second, Third,
Fourth and Fifth Defendants, jointly and severally, the one paying the
other to be absolved for:
(a) Payment in the amount of R1,662,639.30.
(b) Interest on the aforesaid amount at 13.62% (prime [currently
11.75%] plus 1.87%) linked, per annum, capitalised monthly from
27 January 2024 to date of payment, both days included.
2 At page 11 -37
(c) Costs as between attorney and client.
M BRESLER AJ
ACTING JUDGE OF THE HIGH COURT,
LIMPOPO DIVISION, POLOKWANE
APPEARANCES :
FOR THE APPLICANT : Adv. J Eastes
INSTRUCTED BY : Delberg Attorneys Pretoria
liana@delberg.co.za
FOR THE FIRST TO FIFTH : Mr. J Moolman
RESPONDENT
INST RUCTED BY : Pratt, Luyt & de Lange Attorneys
Polokwane
dolla@prattluyt.co.za
DATE OF HEARING : 14 November 2024
DATE OF JUDGMENT : 11 February 2025