2
to Skytrade 1 CC (Skytrade) , for he agreed to stand surety. The Defendant was
the sole director of Skytrade. Skytrade is no longer trading. It had a current account
with the plaintiff. The current account is linked to an overdraft facility in respect of
which the plaintiff and Skytrade concluded an o verdraft agreement. The plaintiff
alleges that Skytrade is indebted to the plaintiff in the amount of R605 226.69 under
the overdraft agreement.
[2] There was no appearance for the respondent at the hearing. Notwithstanding, the
matter was dealt with on an opposed basis as he had filed an affidavit resisting
summary judgment. To be granted leave to defend the action, the defendant must
show that his defences have been sufficiently disclosed, the material facts
underlying them are both bona fide and good in law and he has not simply advance
them to delay the plaintiff’s action. The defendant denies that he is liable for the
debt under the suretyship. He raised various defence which I will deal with shortly.
The plaintiff contends that none of the defences are bona fide, the defendant has
raised them to delay its claim.
[3] The defendant denies that Mr van der Walt who deposed to the plaintiff’s affidavit
in support of summary judgment c an swear positively to the facts set out therein
as “the alleged sub -delegation of authority is not mentioned, explained and/or
otherwise addressed….” The plaintiff contends that the defendant conflates the
requirement for a deponent’s knowledge of the facts with the deponent’s authority
to bring the application , the purported defect in the deponent’s authority has no
bearing on his knowledge of the facts contained in his deposition.
[4] The defendant’s contention is incorrect in law. A deponent to an affidavit does not
need authorization to depose to what he knows. 1 Mr van der Walt’s states that by
virtue of his position, he has familiarised himself with the documents regarding this
virtue of his position, he has familiarised himself with the documents regarding this
matter. The defendant has not disputed this. There is therefore no merit to the
defendant’s contention that Mr van der Walt cannot swear positively to the facts
set out in the plaintiff’s affidavit in support of summary judgment. It is the institution
1 Ganes And Another v Telecom Namibia Ltd 2004 (3) SA 615 (SCA) par 19.
3
of the proceedings and the prosecution thereof which must be authorised.2 This is
not the point the defendant’s takes.
[5] The defendant also contends that the documents attached to Standard Bank’s
affidavit evidencing its incorporation as a company and registration as a bank are
impermissible in terms of rule 32(4) as evidence may only be placed before court
by way of affidavit. The plaintiff contends that the documents have correctly been
placed before the court. The subrule provides as follows:
“(4) No evidence may be adduced by the plaintiff otherwise than by the affidavit referred
to in subrule (2), nor may either party cross-examine any person who gives evidence orally
or on affidavit: Provided that the court may put to any person who gives oral evidence such
questions as it considers may elucidate the matter.”
[6] In Raumix Aggregates (Pty) Ltd v Richter Sand CC, and Similar Matters,3 the court
explained the purpose of summary judgment as follows:
‘The purpose of a summary judgment application is to allow the court to summarily
dispense with actions that ought not to proceed to trial because they do not raise a genuine
triable issue, thereby conserving scarce judicial resources and improving access to justice.
Once an application for summary judgment is brought, the applicant obtains a substantive
right for that application to be heard, and, bearing in mind the purpose of summary
judgment, that hearing should be as soon as possible. That right is protected under section
34 of the Constitution.’4
[7] Given the purpose of the summary judgment procedure as set out above, the
object of the subrule is logical. While the subrule does not preclude the leading of
oral evidence, it primarily requires evidence to be placed before the court by way
of an affidavit. The documents the defendant takes issue with are annexures to the
plaintiff’s affidavit in support of summary judgment.
[8] His contention they the subrule precludes the introduction of documents at this
[8] His contention they the subrule precludes the introduction of documents at this
stage of the proceedings is not supported by the language used in the subrule, its
purpose and context. The subrule does not preclude the attachment of documents
2 Ibid.
3 Raumix Aggregates (Pty) Ltd v Richter Sand CC, and Similar Matters 2020 (1) SA 623 (GJ).
4 At 627E–F.
4
to affidavits. The defendant also does not impugn the contents of the documents.
I find that the documents have been placed before the court in accordance with the
subrule.
[9] The defendant also takes issue with the verification of the plaintiff’s course of action
and the amount claimed because the plaintiff refers to its particulars of claim and
incorporates them into its founding affidavit by reference. He has put up no
authority for this proposition. Ironically, he adopted the same approach in his
affidavit opposing sum mary judgment . Mr van Walt confirm ed the basis of the
plaintiff’s claim as pleaded in its particulars of claim. He went on to elaborate on
the basis for the claim in the affidavit and dealt with the defendant’s defences as
pleaded to demonstrate that he lacks a bona fide defence.
[10] The defendant also contends that the cheque account and the certificate of
balance cannot be accepted as the basis on which the plaintiff’s claim is founded.
The plaintiff’s claim is based on his indebtedness to Standard Bank as it arises
from the suretyship, an accessory agreement to the overdraft agreement in terms
of which certificate of balance is prima facie proof of the defendant’s indebtedness.
[11] He further alleged that the plaintiff failed to respond to the notice in terms of
86(4)(b) of the National Credit Act 34 of 2005 (NCA). He pleaded that on 21 July
2023, the Magistrates’ Court in Midvaal declared him over -indebted. Therefore,
further alleged the defendant, the claim against him is premature as he had
complied with the payment terms of the court order. These contentions lack merit.
As the plaintiff demonstrated in its affidavit in support of summary judgment , the
court order the Magistrate’s order which rearranged his debt did not apply to the
overdraft facility as the principal debt relates to an entity with the annual asset value
of more than R1 million as provided for in s 4(1(a)(ii)5 or is exempt in terms of s
of more than R1 million as provided for in s 4(1(a)(ii)5 or is exempt in terms of s
5 Section 4(1)(a)(ii) provides as follows:
“4 Application of Act
(1) Subject to sections 5 and 6, this Act applies to every credit agreement between parties dealing
at arm's length and made within, or having an effect within, the Republic, except -
(a) a credit agreement in terms of which the consumer is-
(i) a juristic person whose asset value or annual turnover, together with the combined asset
value or annual turnover of all related juristic persons, at the time the agreement is made, equals
or exceeds the threshold value determined by the Minister in terms of section 7 (1);”
5
4(1)(b)6 of the NCA. Further, by extension, in terms of s 4(2)(c) 7 and 8(5) 8, the
overdraft facility is not regulated in terms of the NCA.
[12] The Defendant contends that he cannot fully plead as Standard Bank has failed
to make out a case for the relief it seeks “as a result of a failure to adhere to the
prescripts of rule 18(4) and 18(6)”. He also argues that the Particulars of Claim do
not allege the basis for the 29.5% interest. As the plaintiff contends, he has failed
in both his plea and answering affidavit to set out which material facts under Rule
18(4) were omitted or which requirement under Rule 18(6) has not been complied
with. Further, he has not brought an exception under Rule 23 or an objection under
Rule 30.
[13] The overdraft agreement makes provision for prime interest rate and a margin
of 18%. In addition, it provides that the certificate of balance is admissible proof of
the balance owing. There is no obligation on the plaintiff to provide a computation
of the interest particularly in circumstances where the defendant has not set out
the basis on which he disputes it.
[14] Lastly, the defendant contends that the plaintiff’s claim has prescribed in terms
of s 11 of the Prescription Act 68 of 1969 as the last payment in respect of the
overdraft agreement was made on 28 June 2022. The plaintiff’s summons was
served on 24 April 2024 which is three years after the alleged claim arose.
Calculating the running of prescription from the dates relied on by the defendant,
his contention that the plaintiff’s claim has prescribed lacks merit. Three years had
6 Section 4(1)(b) provides as follows:
“…a large agreement, as described in section 9 (4), in terms of which the consumer is a juristic
person whose asset value or annual turnover is, at the time the agreement is made, below the
threshold value determined by the Minister in terms of section 7 (1);”
7 “For greater certainty in applying subsection (1)-
(a)
(b) …
7 “For greater certainty in applying subsection (1)-
(a)
(b) …
(c) this Act applies to a credit guarantee only to the extent that this Act applies to a credit
facility or credit transaction in respect of which the credit guarantee is granted;”
8 Section 8(5) provides as follows:
“An agreement, irrespective of its form but not including an agreement contemplated in
subsection (2), constitutes a credit guarantee if, in terms of that agreement, a person undertakes
or promises to satisfy upon demand any obligation of another consumer in terms of a credit facility
or a credit transaction to which this Act applies.”
6
not expired when the plaintiff issued summons. The plaintiff is entitled to demand
the full balance upon Skytrade’s liquidation. The escalation clause expressly
accords the plaintiff this right.
[15] Further, although the Defendant contends that this court lacks
jurisdiction, as pointed out by the plaintiff, he has not disclosed the grounds for this
Court’s alleged lack of jurisdiction over this matter. The rest of his plea is based on
bare denials. He has not established a tenable factual or legal basis for the
averments and denials in his plea and affidavit opposing summary judgment.
Therefore, a finding that he has failed to disclose a bona fide defence to the
plaintiff’s claim is inescapable.
[16] The plaintiff wants costs against the defendant on an attorney and client
scale for pursuing what it styled unarguable defences. It contends that this
constitutes a misuse of judicial resources. The fact that the defendant’s defences
are not ‘arguable’ does not in and of itself justify punitive costs. However, the
agreement between the parties provides for costs on that scale. It is for that reason
that I grant it.
[17] In the premises, I grant the following order:
Order
The defendant shall make payment to the plaintiff of the sum of R605 226.69,
interest thereon at the rate of 29.5% per annum, from 26 February 2024 to date of
payment and the costs of suit on the attorney and client scale.