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[2014] ZAWCHC 54
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Varico Investments (EDMS) BPK v Standard Bank of South Africa Limited and Another (770/2013) [2014] ZAWCHC 54 (14 April 2014)
THE
REPUBLIC OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE DIVISION, CAPE TOWN)
CASE
NO:770/2013
DATE:
14 APRIL 2014
In
the matter between:
VARICO
INVESTMENTS (EDMS) BPK
...........................
Applicant
Versus
THE
STANDARD BANK OF
SOUTH
AFRICA LIMITED
....................................
1
st
Respondent
THE
REGISTRAR OF DEEDS,
CAPE
TOWN
.........................................................
2
nd
Respondent
JUDGMENT: 14
APRIL 2014
BOZALEK,
J
[1]
These are opposed motion proceedings in
which the applicant, a property owning company, seeks a declaration
to the effect that the
first respondent, a large bank, has waived its
rights to any monies or debt owing by the applicant, in respect of
which monies
or debt the applicant had given collateral security in
the form of a covering bond over certain immovable property in favour
of
first respondent.
[2]
Further relief sought by the applicant is
that the second respondent, the registrar of deeds, be directed to
cancel and annul the
said covering bond in the title deeds of the
property.
[3]
As is customary the registrar of deeds does
not oppose the relief sought, merely pointing out that, from a
registration point of
view, there are no objections to the order
being granted as prayed.
[4]
The facts giving rise to the application
are largely common cause save principally for the interpretation of
an email sent on behalf
of first respondent. The applicant’s
founding affidavit was deposed to by its director, a Mr Johan van der
Berg (‘
Van der Berg’
)
who during 2009 – 2010 had also been a director and shareholder
of a company known as Full On Meat (Pty) Ltd (‘
FOM’
)
which carried on business as a delicatessen. FOM had enjoyed an
overdraft facility from first respondent, the account being held
at
the latter’s Helderberg branch. By June 2009 the overdraft
account, which was originally opened in April 2006, stood at
approximately R441 000.00. An agreement was then concluded
between FOM, represented by Van der Berg, and first respondent
in
terms whereof the facility would be reduced by an amount of
R30 000.00 per month until FOM’s liability was discharged
in full by 31 August 2010. A condition of that agreement was that the
applicant would bind itself, to an unlimited extent, as surety
for
and co-principal debtor with FOM and further would register a second
mortgage bond against the title deeds of certain fixed
property it
owned in Newlands, Cape Town in favour of first respondent.
[5]
Van der Berg and two other persons,
presumably directors of FOM, also bound themselves as sureties for
and co-principal debtors
with FOM in first respondent’s favour.
Regular monthly payments in reduction of the overdraft facility were
duly made between
August 2009 and August 2010 with one further
payment being made in March 2011. By this time a dispute had arisen
between FOM and
first respondent as to what the correct outstanding
balance was. According to first respondent it was in the region of
some R45 000.00.
[6]
Van der Berg states that repeated requests
made of first respondent to ascertain how the outstanding balance was
arrived at were
unsuccessful. However, on 17 February 2012, in
response to a further query from Van der Berg, an email was sent to
him by Mrs R
Abrahams (‘
Abrahams’
)
on behalf of first respondent in the following terms:
‘
Re:
Full On Meat (Pty) Ltd – Acc 0724 25253
Good day Sir.
Please note that
the account was written off and closed on 19 August 2011.
I will request
for a statement up until the write off date.
I trust you will
find this in order’
I
shall refer to this communication as the 17 February email.
[7]
According to Van der Berg he then purported
to accept what he regarded as first respondent’s waiver of any
debt, albeit without
immediately notifying first respondent thereof.
At some point thereafter Van der Berg deregistered FOM and
transferred the shares
in applicant into his wife’s name. This
he did pursuant to a concession by the South African Revenue Services
whereby a shareholder
in a company owing residential property could
transfer the property out of the company to a shareholder without
incurring unfavourable
tax consequences. The dispensation was only
available up until 31 December 2012.
[8]
It was only in October 2012 that Van der
Berg’s legal representatives wrote to representatives of first
respondent drawing
their attention to the contents of the 17 February
email indicating that the bond should have been cancelled and
requesting the
title deeds to the property so that transfer could be
passed from the applicant, presumably to Van der Berg’s wife.
This
exchange led to an official of first respondent writing
internally to Abrahams asking her to explain the meaning of the 17
February
email. Her evendated reply to this internal query read
as follows:
‘
Referring
to my emails dated January 26 2012 and February 17 2012 to Mr van der
Berg.
The
balance on the above account amounts to R47 819.77. Client
requested a statement on how the balance amounted to R47 819.77
and an email containing the statement was emailed on 28 February
2012. Furthermore, the debt has been written off on 19.08.2011,
meaning that the account was closed on branch level and the
outstanding balance was handed over for collections to the Recoveries
department.
I
trust all is on (sic) order.’
[9]
This interpretation of the 17 February
email was expanded on in first respondent’s opposing affidavit
where the business lending
manager in the personal and business
banking credit division stated as follows:
‘
[20]
On 19 August 2011 the balance (then standing at an
amount of R41 819.77) was ‘written off’
at the
branch and transferred to the recoveries department at the First
Respondent.
…
..
[24]
It is, however, denied that, in banking
terminology, ‘written off’ means that First Respondent
renounces its right to look to its customer and sureties for payment
of the outstanding debt.
[25]
‘Written off’ as used in the present context means that
the debt is written off against
the books of the branch and is then
transferred to the books of the relevant recoveries department within
the First Respondent
as explained in the email dated 19 August 2012.
…
[26]
The allegation, therefore that the First Respondent renounced its
rights in and to FOM’s
debts is denied as is the suggestion
that the Applicant accepted the renunciation.’
[10]
In the applicant’s replying affidavit
Van der Berg raised, in the alternative, the defence of estoppel in
the following terms:
‘
6.1
Die bank erken dat die epos … aan my gestuur is …
6.2
Op geen stadium het die Bank die Applikant in kennis gestel dat die
persoon wat gemelde
epos gestuur het nie namens die Bank kon optree
nie en die Bank kon bind nie.
6.3
… die Bank het verder die skyn geskep dat die skuld afgeskryf
is deur die nalate
om enige verdere stappe te invordering van die
skuld te doen nadat ek in kennis gestel is deur die Bank dat die
skuld afgeskryf
is.
6.4
As sulks het die Bank aan die Applikant voorgehou dat die Applikant
se skuld afgeskryf is
deur die Bank en dat die Bank afstand gedoen
het van sy eise en regte teen opsigte van die verhaling van enige
balans verskuldig
deur die applikant;
…
6.6
Die Applikant het gehandel op hierdie voorstellings wat deur
die Bank aan hom gedoen
is deur, onder andere, op te tree soos deur
my uiteengesit….. insluitende deur die oordrag van aandele en
die stappe betreffende
die oordrag van die onroerende eindom, soos
verwys in …. my loodsende eedsverklaring
…
6.8
Deur soos voormeld op te tree na aanleiding van die Bank se
voorstelling en deur te aanvaar
dat die woorde “written off”
hul gewone betekenis dra het die Applikant tot sy benadeel gehandel.’
[11]
In
argument on behalf of the applicant, Mr van Heerden contended that
the objective facts showed that there had been a waiver by
first
respondent of its rights to any monies owing by FOM (or any surety or
co-principal debtor); in the alternative, that if this
had not been
established then at the very least first respondent was estopped from
asserting that any amount was still due in respect
of the principal
debt. On behalf of first respondent, Mr Sievers argued that, regard
being had to the principle in
Plascon
Evans
[1]
,
the applicant had failed to prove any waiver and also because certain
terms in the suretyship agreement concluded by the applicant
precluded any reliance on the 17 February email. As regards the
estoppel argument, he contended that the applicant had failed to
establish the representation it purported to rely on or that it had
altered its position to its detriment on the strength of any
such
representation.
DISCUSSION
[12]
The
applicant’s case is built on a waiver, the existence of which
is a question of fact. In
Laws
v Rutherford
[2]
Innes CJ stated as follows:
‘
Waiver
is a question of fact, depending on the circumstances. It is always
difficult, and in this case especially difficult to establish.’
[13]
Also to be borne in mind is the application
of the
Plascon Evans
rule in these proceedings which entails that the applicant must
establish its entitlement to the relief sought on the basis of
those
of its averments which have been admitted by first respondent
together with the facts as set out by first respondent. The
meaning
of the 17 February email, what it was intended to convey, is very
much in dispute. There is, furthermore, a presumption
against waiver
based on the notion that having gone to all the trouble to acquire
contractual rights, people are, in general, unlikely
to give them up.
In this regard, again as was stated by Innes CJ in
Laws
v Rutherford
:
‘
(t)he
onus is strictly on the appellant. He must show that the respondent
with full knowledge of her right, decided to abandon it,
whether
expressly or by conduct plainly inconsistent with an intention to
enforce it.’
[14]
The party alleging a waiver of a
contractual right retains throughout the proceedings the overall onus
of proving that the other
party had full knowledge of the right when
he allegedly had abandoned it. See
Feinstein
v Niggli and Another
1981 (2) SA 684
(AD) at 698 F – G.)
[15]
It has repeatedly been held that clear
proof is required of a waiver. In
Borstlap
v Spangenberg
1974 (3) SA 695
(A) 704
Corbett AJA stated as follows:
‘
Dit
is herhaaldelik deur ons Howe beklemtoon dat duidelike bewys van 'n
beweerde afstanddoening van regte geverg word, veral waar
op 'n
stilswyende afstanddoening staat gemaak word. Dit moet duidelik blyk
dat die betrokke persoon opgetree het met behoorlike
kennis van
sy regte en dat sy optrede teenstrydig is met die voortbestaan van
sodanige regte of met die bedoeling om hulle af te
dwing.’
[16]
In
Road
Accident Fund v Mothupi
2000 (4) SA 38
(A) it was held that waiver was first and foremost a matter of
intention. Whether it was the waiver of a right or a remedy, a
privilege or power, an interest or benefit, and whether in unilateral
or bilateral form, the starting point invariably was the will
of the
party said to have waived it. Referring more specifically to the test
to determine intention to waive, Nienaber JA stated
that this had
been said to be objective which means, first, that intention to
waive, like intention generally, is judged by its
outward
manifestations; secondly, that mental reservations, not communicated,
were of no legal consequence and, thirdly, that the
outward
manifestations of intention are judged from the perspective of the
other party concerned, that is to say from the perspective
of the
latter’s notional alter ego, the reasonable person standing in
his shoes. Nienaber JA stated further that the knowledge
and
appreciation of the party alleged to have waived is furthermore an
axiomatic aspect of waiver. Once again he reaffirmed that
the onus is
on the party alleging the waiver and that clear proof is required on
intention to do so.
‘
The
conduct from which waiver is inferred, so it has frequently been
stated, must be unequivocal, that is to say, consistent with
no other
hypothesis.’
[17]
Applying these principles to the present
matter I do not consider that the 17 February email upon which the
applicant relies, objectively
speaking, reflects an unequivocal
intention on the part of first respondent to waive its rights to
recover the debt it regarded
as being owed by FOM. In the first place
the email must be considered within the context in which it was
written, namely, a response
to Van der Berg’s requesting a
statement on how the balance amounting to R47 819.77 was made
up. The reply, was at best
for the applicant, ambiguous. It refers to
the ‘
account’
being ‘
written off’
and ‘
closed’.
By
itself the statement that the account was closed would certainly not
indicate a waiver. The key phrase relied on by the
applicant is
‘
written off’
and that sits uncomfortably with a notion of an ‘
account’
.
In common parlance a debt or a balance is written off but not an
account. Adding to the ambiguity is Abrahams’ statement
that
she would request a statement ‘
up
until the write off date’
.
Bearing in mind that Van der Berg was seeking an explanation of how
the outstanding balance was arrived at, it would, objectively
speaking, be illogical for Abrahams on the one hand to state that the
debt was written off but on the other hand undertake to furnish
a
statement showing how the final balance was arrived at. Matters might
have been different had Abrahams unequivocally stated in
terms that
the
debt
owing by FOM had been ‘
written
off’
. This was not the case,
however.
[18]
Although one can well imagine that a
reasonable person in the shoes of Van der Berg may have been
initially puzzled by the terms
of the email from Abrahams, and even
that such puzzlement may have been tinged with the hope that first
respondent was indeed writing
off FOM’s debt, I do not consider
that such person would, without further enquiry, have been
unequivocally brought under
the impression that the debt had been
written off.
[19]
As is evident from the affidavits, first
respondent contends that the statement made by Abrahams in the 17
February email bore a
specialised meaning, namely, that the debt was
written off against the books of the local branch and was then
transferred to the
books of the relevant recoveries department. It
specifically denied that, in banking terminology, ‘
written
off’
in this context meant that
the bank renounced its right to look to its customer, FOM, or any
other parties liable for payment of
the outstanding debt. There is
nothing to gainsay this and, strictly speaking, applying the rule in
Plascon Evans
it must be accepted that first respondent never had the intention to
waive its rights to recover the debt.
[20]
It
is also of some significance that this specialised meaning was the
one which was given by Abrahams on the very day that her initial
email was queried. This was contained in an email responding to the
enquiry from her manager, who in turn was responding to Van
der
Berg’s legal representative’s claim that the debt had
been waived by first respondent in the 17 February email.
The
applicant objected to this evidence on the basis that it offended
against the parol evidence or integration rule and further
that it
was not substantiated by an affidavit from Abrahams. I regard the
evidence as admissible, however. The integration rule,
as Botha JA
remarked
in
National Board (Pretoria) (Pty) Ltd v Estate Swanepoel
[3]
,
is
well summarised by Wigmore as follows:
‘
This
process of embodying the terms of a jural act in a single memorial
may be termed the integration of the act, i.e. its formation
from
scattered parts into an integral documentary unity. The
practical consequences of this is that its scattered parts, in
their
former and inchoate shape, do not have any jural effect; they are
replaced by a single embodiment of the act. In other words:
when a
jural act is embodied in a single memorial, all other utterances of
the parties on that topic are legally immaterial for
the purpose of
determining what are the terms of their act.’
[21]
In
KPMG
Chartered Accountants (SA) v Securefin Limited and Another
2009 (4) SA 339
(SCA) the Court stated as follows:
‘
First,
the integration (or parol evidence) rule remains part of our law.
However, it is frequently ignored by practitioners and
seldom
enforced by trial courts. If a document was intended to provide a
complete memorial of a jural act, extrinsic evidence may
not
contradict, add to or modify its meaning (Johnson v Leal
1980
(3) SA 927
A at 943B). Second, interpretation is a matter of law and
not of fact and, accordingly, interpretation is a matter for the
court
and not for witnesses (or, as said in common-law jurisprudence,
it is not a jury question … Third, the rules about
admissibility
of evidence in this regard do not depend on the nature
of the document, whether statute, contract or patent … Fourth,
to
the extent that evidence may be admissible to contextualise the
document (since “context is everything”) to establish
its
factual matrix or purpose or for purposes of identification, “one
must use it as conservatively as possible”.’
[22]
Both of these dicta make it clear that a
key qualification to the application of the integration rule is that
the document in question
must be intended to provide a complete
memorial of the jural act. However, the notion that the 17 February
email was intended to
be a complete memorial of a jural act is, at
best for the applicant, the absolute high-water mark of its case. It
was certainly
not conceded by first respondent that this terse email
was intended to provide a complete memorial of its waiver of rights
against
any parties arising out of FOM’s debt. Bearing in mind,
again, that these are motion proceedings and that first respondent’s
case is that the communication was by no means an integrated memorial
of the jural act, I regard extrinsic evidence as to what
its true
meaning was, as admissible.
[23]
As regards the applicant’s objection
that the email was not confirmed or supported by an affidavit from
Abrahams, I do not
consider that this diminishes from the weight of
such evidence or renders it inadmissible. The original email was
introduced into
evidence by the applicant without any suggestion that
it was not a valid document or that its contents, insofar as they
expressed
Abrahams’ view as to what the 17 February email
meant, were false or contrived. The applicant’s case is rather
that the objective meaning of the 17 February email is completely at
odds with and trumps any specialised meaning which Abrahams
herself
may have intended.
[24]
The meaning for which Abrahams and first
respondent contend, moreover, is by no means inherently improbable or
farfetched, namely,
that the debt had been written off in the books
of the relevant branch in order that it could be dealt with as a
recovery by a
specialised department. This interpretation is also
lent weight by the fact that Abrahams was, as Van der Berg was aware,
a collections
officer in the business lending recovery/credit
rehabilitation and recoveries department in Johannesburg and not a
local official
in the Helderberg branch.
[25]
In order to prove the waiver on which it
seeks to rely on the applicant must discharge an onus, one not
lightly accomplished, showing
that first respondent, with full
knowledge of its rights, decided to abandon these. As was stated in
the Mothupi case [supra page
50, para 19] albeit in the context of
conduct: ‘(
t)he conduct from which
waiver is inferred, so it has been frequently stated, must be
unequivocal, that is to say, consistent with
no other hypothesis’
.
[26]
All that the applicant can rely on is the
17 February email. There is no other evidence suggesting that
Abrahams, acting on first
respondent’s behalf and with full
knowledge of its rights, decided to abandon these. In my view,
particularly given the ambiguity
inherent in the phrase ‘
The
account was written off and closed on 19 August 2011’
,
the email falls well short of clear proof of a waiver.
[27]
There are in addition other difficulties
facing the applicant’s case. It seeks to be released from its
suretyship for the
debts of FOM. That suretyship agreement made
provision for when the applicant’s liabilities would end in the
following terms:
‘
12.6
Our liability for the Debts will only end when –
12.6.1
our liability has been extinguished; or
12.6.2
the bank gives us a written release from liability under this
suretyship; or
12.6.3
the bank cancels this suretyship in writing.
12.7
This suretyship may only be terminated, cancelled or otherwise
brought to an end in the way provided for
in this suretyship’
[28]
Even giving the 17 February email the
meaning contended for by the applicant, in my view it amounted to
neither a cancellation of
the suretyship in writing nor a written
release from liability under the suretyship. Nor do I consider that
the email can be brought
within the terms of clause 12.6.1 since the
applicant does not rely on any payment/s recently made, thereby
extinguishing its liability,
but only on a reference to an account
being ‘
written off’
in an informal communication from first respondent. It is significant
in this regard that one of the meanings of ‘
extinguished’
given in
The Concise Oxford English
Dictionary, 10
th
Edition, Revised
, is ‘
to
cancel (a debt) by full payment’
.
Looked at as a whole, clause 12.6 is clearly intended to ensure that
a surety’s liability will only be terminated through
a formal
release and/or payment of the outstanding balance in full.
[29]
A further contractual provision militating
against the interpretation which the applicant seeks to place on the
17 February email
is clause 17.2 of the self-same suretyship
agreement which provides as follows:
‘
No
compromise or other arrangement regarding the bank’s claims
against the debtor (FOM) will, if the bank does not give written
consent, release us from liability under this suretyship’.
[30]
Thus, even assuming that a waiver by first
respondent of its claim is proved, the applicant would only be
released from its liability
after obtaining ‘
written
consent’
from first respondent.
The applicant did not suggest, nor could it reasonably have done,
that the 17 February email directed to
Van der Berg, presumably in
his capacity as a director of FOM, constituted such a ‘
written
consent’. C
lause 17.2 also tends
to suggest that a greater degree or formality would be expected were
first respondent to be releasing the
applicant from its obligations
under the suretyship for FOM’s debt.
[31]
In my view then the applicant has failed to
establish, on these papers, that first respondent, with full
knowledge of its rights,
waived any claims it may have had against
applicant as co-principal debtor with, and surety for, FOM’s
debt.
ESTOPPEL
[32]
In the alternative, Mr van Heerden
contended that first respondent was estopped from denying that it had
waived its right to the
debt owing by FOM and as such the applicant
was entitled to the relief it sought.
[33]
Broadly
speaking, to establish an estoppel the party relying thereon must
prove a representation, by words or conduct, including
silence or
inaction; the representation must be one of fact, it must have been
made to the person invoking estoppel and that person
has to establish
that he or she acted on the faith of the representation and that in
so doing he or she altered his or her position
to his or her
detriment.
[4]
[34]
The
applicant only raised estoppel in its replying affidavit. The general
rule in application proceedings is that an applicant must
make out
his case in its founding papers.
[5]
I do not consider that the applicant is precluded from raising the 17
February email, as constituting the representation founding
the
estoppel, only in reply since that email was central to its founding
affidavit and was fully dealt with by first respondent
in its
opposing affidavit. In my view, however, insofar as the applicant
sought in reply also to rely, as part of the representation,
on first
respondent’s alleged failure to take steps to recover the debt
after the email was sent, this was not permissible.
First respondent
was afforded no opportunity to explain any such omission. The
applicant must therefore stand or fall by the 17
February email as
constituting the representation.
[35]
The applicant’s estoppel response
presupposes that it has failed to establish an intention to waive on
first respondent’s
part. The question then is whether first
respondent nevertheless created the impression with the applicant
that it had waived FOM’s
debt, on the strength of which the
applicant acted to its prejudice.
[36]
As
was held in
Mothupi
’s
[6]
case, the test for inferred waiver is the impression created by the
conduct of the party said to have waived on the mind of the
notional
alter ego of the party relying on the alleged waiver (the applicant
in this case); which is also the test for a representation
in the
context of estoppel.
[37]
That conduct was the sending by first
respondent of the 17 February email. However, notwithstanding its
ambiguity, I consider that
this email was not capable of creating the
reasonable impression that first respondent had waived its claim for
recovery of the
debt i.e. had ‘
written
it off’
. I reach this
conclusion for much the same reasons as apply to the applicant’s
reliance on a waiver, namely,
the context in which the email was
sent, the inherent ambiguity of its terms and the surrounding
contractual provisions relating
to the extinguishment of the debt and
the release of sureties.
[38]
In the event that I am incorrect and the
applicant has established the representation on which it relies, I
proceed to deal with
the further requirements to successfully raise
estoppel. In doing so I shall assume in favour of the applicant that
the 17 February
email to Van der Berg was a representation made to
the applicant even though Van der Berg appears to have been
addressing his enquiry
to first respondent in his capacity as
director of FOM, whose debt he had been settling.
[39]
Any
representation made can obviously be withdrawn and the party to whom
it was made cannot rely upon estoppel unless it had acted
on such
representation prior to its withdrawal.
[7]
There is little in the applicant’s papers to suggest that, by
the time first respondent clarified its position, to the extent
that
this may have constituted a withdrawal of the representation relied
upon by the applicant, the applicant had already acted
to its
detriment on the strength of that representation.
[40]
The details which the applicant furnished
of how it acted to its detriment are somewhat sparse. Without
furnishing dates Van der
Berg states he deregistered FOM and
transferred the applicant’s shares to his wife’s name
with a view to taking advantage
of a tax dispensation before 31
December 2012. It appears that, following an exchange of emails
beginning on 25 October 2012, it
was made clear to Van der Berg or
his legal representatives that first respondent disputed that it had
written off FOM’s
debt and that first respondent required
payment of the outstanding balance before it would cancel the bond
over the applicant’s
property and release the title deeds. At
this stage the applicant does not appear to have taken any steps on
the strength of the
representation to its detriment. Nothing
prevented Van der Berg from re-activating FOM or, had he wished to
pursue the tax benefit
scheme, from paying the outstanding amount
allegedly owing by FOM and/or the applicant to first respondent under
protest in order
to have the bond cancelled. No case is made out as
to why these steps could not have been taken within the deadline of
the tax
benefit scheme or why indeed the entire scheme was not
initiated earlier, immediately after Van der Berg’s receipt of
the
17 February email.
[41]
For these reasons I consider that the
applicant has not established on these papers that first respondent
is estopped from asserting
that it did not waive any of its rights
relating to the debt owing, in the first place, by FOM. It follows
and therefore that the
applicant is not entitled to the relief which
it seeks.
[42]
In the result the application is dismissed
with costs.
L
J
BOZALEK
JUDGE
OF THE HIGH COURT
[1]
Plascon
Evans Paints (Pty) Ltd v Van Riebeeck Paints (Pty) Ltd
[1984] ZASCA 51
;
1984 (3) SA
623
(A) at 634 H - I
[2]
1924
(AD) 261 at page 263
[3]
1975
(3) SA 16
(A) at 26
[4]
See
the discussion on estoppel by representation in LAWSA 2
nd
Edition Vol 9.
[5]
Titty’s
Bar and Bottle Store (Pty) Ltd v ABC Garage (Pty) Ltd and Others
1974 (4) SA 362
(T) at 369 B
[6]
(supra)
at page 53 para 29
[7]
See
Hammerschlag v Dingle Hotel and Store
1925 GWL 24
at pg 29