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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
KWAZULU NATAL DIVISION
PIETERMARITZBURG
CASE NO: 8653 / 24P
Before: Honourable Ncube J
Heard on: 17 April 2025
Delivered on: 04 September 2024
In the matter between:
FIRST RAND BANK LIMITED Applicant
and
JACOBUS JOHANNES ODENDAAL Respondent
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ORDER
In the result I make the following order:
1. The Respondent’s application to strike out certain sentences from the
founding affidavit deposed to by Shashika Ramtahal is refused.
2. The Respondent is ordered to pay the sum of R6, 651,436.04 plus interest
there on at the rate of prime (currently 11.75%) per annum compounded
monthly in arears from 30 June 2023 to date of the final payment; and
3. Pay the sum of R4, 787, 658.34 plus interest thereon at the rate of Prime
(currently 11.75%) plus 2.00% per annum compounded monthly in arrears
from 30 June 2023 to date of final payment;
4. Pay Costs, including any reserved costs, on attorney and client scale.
JUDGMENT
NCUBE J
Introduction
[1] This is opposed application in which the Applicant applies for judgement
sounding in money a gainst the Respondent as surety for the obligations of the two
principal debtors , being Sa bi Construction Pty Ltd (‘ ’Sabi Construction’’) and
Sabicare (Pty) Ltd (‘’Sabicare ’’). The Respondent’s indebtedness to the Applicant
arises from an overdraft facility agreement concluded on 13 October 2022, the Covid
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-19 loan agreement entered into on 25 June 2020, a sure tyship executed by the
Respondent in respect of Sabi Construction’s obligations on 27 Augu st 2021 , a
suretyship executed in respect of Sa bicare’s obligations on 03 May 2018 and a
suretyship executed by the Respondent in respect of Sabicare’s obligations on 20
June 2020. As per agreement between the parties, in respect of suretyships, a
certificate signed by a manager of the Applicant, would be prima facie proof of the
Respondent’s liability for indebtedness. The Respondent has raised a preliminary
issue which is to be determined first. That is the application to strike out certain
sentences from the founding affidavit. I now deal with that issue.
Application to Strike Out
[2] The Respondent begs the indulgence of the court to strike out certain
paragraphs and sentences from the founding affidavit deposed to by Miss Ramtahal
on the basis that such affidavit amounts to inadmissible hearsay evidence for want of
personal knowledge of the facts by the said Miss Ramtahal.
[3] The starting point of exercise will be Rule 6 (15) of the Uniform Rules of Court
which provides:
‘’(15) The court may on application order to be struck out from any
affidavit any matter which is scandalous, vexatious or irrelevant, wi th
an appropriate order as to costs, including costs as between attorney
and client. The court shall not grant the application unless it is satisfied
that the applicant will be prejudiced in his case if it be not granted’’.
[4] It has been held that for the application to strike out to succeed, there are two
requirements which must be satisfied. The first requirement is that the matter sought
to be struck out must indeed be vexatious, scandalous or irrelevant . In the present
application, the founding affidavit must indeed contain inadmissible hearsay
evidence for lack of personal knowledge of the facts pleaded in the said affidavit. In
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that regard, in Beinash v Wixley 1 Mahomed CJ expressed himself in the following
terms:
‘’What is clear from this rule is that two requirements must be satisfied before
an application to strike out the matter from any affidavit can succeed. First
the matter sought to be struck out must indeed be scandalous, vexatious or
irrelevant. In the second place the court must be satisfied that if such matter
was not struck out the parties seeking such relief would be prejudiced’’
[5] The striking out procedure should not be used for purposes of raising useless
technical objections. It is for this reason that a certain degree of prejudice should be
shown to exist before the application to strike out can be granted. In Anderson And
Another v Port Elizabeth Municipality2 Raynold JP said:
‘’Suffice it to say this procedure was never intended to be utilised to make
technical objections of no advantage to anyone and just increasing costs’’
[6] The gravemen of the Respondent is that the founding affidavit filed in this
matter contains inadmissible hearsay evidence for want of personal knowledge of
the facts by the deponent to the Founding Affidavit. The Respondent has indicated
the sentences which should be struck out from the Founding Affidavit. Shashika
Ramtahal (‘’Ramtahal’’) is the deponent to the founding affidavit. For purposes of
this judgement, it is important to quote paragraphs 1, 2 and 3 of Ramtahal’s affidavit
which states:
‘’1. I am a major female legal practitioner employed by the applicant as a
recoveries manager at its offices situate at […]th floor a […] H[…], [...] k[...]
Drive, Umhlanga Rocks.
2. The facts deposed to herein are within my personal knowledge and belief,
save where indicated to the contrary or appears from the context and are both
true and correct.
1 1997 (3) SA 721 (SCA) at 733 A -B
2 1954 (2) SA 299 (EDL)
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3. By virtue of my position as a recoveries manager within the Applicant, I
have acquired personal knowledge of the Applicant’s claim against the
Respondent. I have investigated the claim against the Respondent. For
purposes of this application, I have also perused and considered the
annextures to this affidavit’’
[7] In case the Respondent’s objection to the founding affidavit is upheld, as
being hearsay because of want of personal knowledge of the fact s, the entire
founding affidavit, shall have to be discarded since the remaining information will
make no case and it will be useless.
[8] This application to strike out is not an issue which must detain me for a long
time. Parties to a cont ract should not desperately seek to be released from contract
entered into freely and voluntarity for flimsy tec hnical reasons. The Pacta Sunt
Servanda is the fundamental principle of our law. This Principle entails that parties
should honour and fulfil their contractual obligations. Once parties have entered into
a valid contractual agreement , they are bound by its terms and they must uphold
their promises. In Barkhuizen v Napier 3. Ngcobo J writing for the majority,
expressed himself in the following terms:
‘’……….. On the other hand public policy, as informed by the constitution,
requires in general that parties should comply with contractual obligations that
have been freely and voluntarily undertaken. This consideration is expressed
is the maxim Pacta Sunt Servanda, which, as the Supreme Court of Appeal
has repeatedly noted, gives effect to the central constitutional values of
freedom and dignity. Self-autonomy, or the ability to control one’s own affairs,
even to one’s own detriment, is the very essence of freedom and the vital part
of dignity ………….’’
[9] The overdraft facility, the loan and surety ship agreements signed by the
parties in this case all have a similar clause which says:
3 2007 (5) SA 323 (cc) para 57
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‘’A certificate signed by any manager (whose appointment, qualification or
authority need not be proved) stating the amount of …….. indebtedness to the
applicant, Prime Rate, rates or interest and other charges applicable would
unless the country was proved be prima facie proof of the amount which ……
owed to the Applicant …. and a valid document in any court to obtain
provisional sentence, summary judgment, or judgment for any other purpose’’
[10] In my view , there is nothing to be struck out from the founding affidavit
deposed to by Ramtahal. The founding affidavit does not contain hearsay evidence
even if it contained hearsay evidence, it the would be the type of hearsay evidence
which the court can admit in the interest of justice in terms of section 3 (1) (c) of the
Law Of Evidence Amendment Act4. In any event, as Mr Van Rooyen, Counsel for the
Applicant submitted, a corporate deponent to an affidavit is not required to have first
hand knowledge of every fact. This defence does not raise any triable issue. In
Joob Joob Investments (Pty) Ltd v Stocks Mavundla Zek Joint Venture5. Navsa
JA held:
‘’………………. There are diverse references to clauses to the agreements to
the non - correlation between the dates of the tax certificates and the
certification by the Agent what is conspicuously absent is the absence of a
triable defence.’’
In Casu, I am also of the view that the Respondent ’s defence does not raise any
triable defence.
Merits
[11] I now turn to deal with the merits of the application. The Respondent states in
paragraph 15 of his answering affidavit dated 24 July 2024, that he does not deny
having signed various documents, but he is not able to verify any signatures or
documents. He avers further, that he is not prepared to admit copies of agreements
4 Act 45 of 1988
5 2009 (5) SA 1 (SCA) at para 15
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attached as annexures FA1 to FA5 to the founding affidavit. He says this despite the
fact that his signature appears on all the agreements which he signed. Especially
signatures on the of Deed of Suretyship which are not electronic signatures.
Indebtedness of the Respondent to the Applicant
[12] As stated earlier in this judgment, the Respondent’s indebtedness arises from
the breach of the following:
1. A written facility concluded on 13 October 2022 between the Applicant,
Sabi Construction and Sabicare. This facility was repayable on demand
2. A Covid – 19 agreement which was concluded on the 25 th of June 2020
between the Applicant and Sabicare
3. A suretyship executed by the Respondent in respect of Sabi
Construction’s obligations on 27 August 2021
4. A suretyship executed by the Respondent in respect of Sabicare’s
obligations on 3 May 2018
5. On 20 June 2020, the Respondent executed another suretyship in
respect of Sabicare’ obligations limited to the sum of R7 million.
[13] In respect of suretyships , it was one of th e terms of the agreement that a
certificate signed by any manager of the Applicant whose appointment need not be
proven, would be prima facie proof of the Respondent’s indebtedness or indebtness
of Sabie Construction and Sabicare and as to any other fact in relation to any such in
debtedness and would be sufficient for purposes of any application, action,
judgement order or for any other purpose whatsoever.
Breach
[14] In terms of the agreement a breach would have occurred if:
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(a) There was non-payment on due date of any amount under the facility ,
agreement, security documents or other agreement.
(b) If a meeting was proposed or convened , a resolution taken or passed,
application made, or order is applied for or granted to commence any
business rescue proceedings regarding Sabi Construction or any similar
procedure.
(c ) If there was a winding up order whether provisional or final, granted.
In case any of the above-mentioned events occurred, the Applicant was entitled to:
(a) Accelerate payment of all amounts even if the due date of payment
had not occurred.
(b) Claim immediate repayment of all amounts outstanding under the
facility agreement.
[15] On 09 January 2023 , the Board of Directors of Sabicare took a resolution to
place Sabicare under business rescue . On 10 November 2023 , Sabicare was
provisionally wound up. As per the terms of the agreement, the business rescue and
provisional winding up of Sabicare led to the acceleration of the repayment of the
full outstanding balance. The Applicant’s attorneys demanded payment of the
Sabicare indebtedness from the Respondent. The respondent’s indebtedness to the
Applicant in respect of Sabi Construction is R6 651 436.04. The Indebtedness in
respect of Sabicare is R4 787 658.34.
[16] Apart from technicalities, the Respondent does not have a defence against
the Applicant’s claim. The Respondent does not aver that the amount claimed is
wrong or that the claim is a false claim . In Cape Town Transitional Metropolitan
Substructure v LLco Homes6. Duminy AJ said:
6 1996 (3) SA 472 (c) at 498 F-G.
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‘’The objection taken to their affidavit is not followed up by any assertion that
the amount claimed in the combined summons and particular of claim is
wrong, or that any of the allegations or facts set out there in are false. It is
clear from Mr Joshua’s opposing affidavit that th e defendant indeed does not
dispute the correctness of these facts giving rise to its liability for rates and the
calculations relied upon by the plaintiff. Its defences are that payment of rates
is not yet due and that it has the counterclaim mentioned above. That makes
the attack on Mr Leonerd’s ability to depose to the verifying affidavit despite
his oath that he has personal knowledge of the facts and circumstances rather
pointless.’’
Alleged Prejudice
[17] The Respondent contends that the Applicant prejudiced the Respondent’s
ability to make payments in terms of suretyship. This contention does not hold water
as the Respondent abandoned the right of excursion in respect of all suretyships . As
Mr Van Rooyen, Counsel for the Applicant argued, correctly in my view, there is no
general prejudice principle in South African law which releases the surety from his
obligations. The alleged prejudice must at least arise from the breach of a legal duty
or obligation which arises from the principal agreement or the deed of suretyship. To
that extent , in Absa Bank Ltd v Davidson 7 Olivier JA expressed himself in the
following terms:
‘’As a general proposition prejudice caused to the surety can only release the
surety (whether totally or partially) if the prejudice i s the result of a breach of
some or other legal duty or obligation. The prime source of a creditor’s rights,
duties and obligations are the principal agreement and the deed of suretyship.
If, as is the case h ere, the alleged prejudice was caused by conduct falling
within the terms of the principal agreement or the deed of suretyship , the
prejudice suffered was one which the surety undertook to suffer ………’’
prejudice suffered was one which the surety undertook to suffer ………’’
7 200 (1) SA 1117 (SCA) para 19
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The above statement of the law is clear and straight forward. I need not say more.
The Respondent’s intended Counter Claim
[18] The Respondent contends in his answering affidavit that he has a counter
claim against the Applicant. From what is stated in the answering affidavit , it sounds
like the counter claim will be based on pure economic loss. I have not seen the
counter claim and I need not say much about it.
Order
[19] In the result, I make the following order
1. The Respondent’s application to strike out certain sentences from the
founding affidavit deposed to by Shashika Ramtahal is refused.
2. The Respondent is ordered to pay the sum of R6, 651,436.04 plus interest
there on at the rate of prime (currently 11.75%) per annum compounded
monthly in arears from 30 June 2023 to date of the final payment; and
3. Pay the sum of R4, 787, 658.34 plus interest thereon at the rate Prime
(currently 11.75%) plus 2.00% per annum compounded monthly in arrears
from 30 June 2023 to date of final payment;
4. Pay Costs, including any reserved costs, on attorney and client scale.
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_________________
NCUBE MT
JUDGE OF THE HIGH COURT OF SOUTH AFRICA
KWAZULU NATAL DIVISION
PIETERMARITZBURG
APPEARANCES:
For the Applicant: Adv. RM Van Rooyen
Instructed by: Edward Nathan Sonnebergs Inc.
1 Richefond Circle
Ridgeside Office Park
UMHLANGA
For the Respondent: Adv. G Goddard SC
Instructed by: Larrat Law Inc.
Suite B
130 Adelaide Tambo Drive
DURBAN NORTH