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,
FREE STATE DIVISION, BLOEMFONTEIN

Reportable:                              NO
Of Interest to other Judges:   NO
Circulate to Magistrates:        NO
CASE NO: 688/2024

In the matter between: 

THE STANDARD BANK OF SOUTH AFRICA LIMITED                             1st Plaintiff
(Registration number: 1962/000738/06)

THE STANDARD BANK FLEET MANAGEMENT (PTY) LTD                     2nd Plaintiff
(Registration number: 2007/006198/07)

And

RM BETON CC						                           1st Defendant
(Registration number: 2006[…])

HENDRIK RUDOLPH DU TOIT				                          2nd Defendant
(Identification number: 8[…]) 

HELULE EIERS (PTY) LTD					                3rd Defendant
(Registration number: 2013[…])

THE TRUSTEES OF THE TIME BEING OF THE 		                4th Defendant

GREENFIELDS TRUST, NR IT0[…]

HEARD ON:	01 AUGUST  2024	

JUDGMENT BY:	           MHLAMBI, J 

DELIVERED ON:	            24 December 2024

Introduction
[1] 	This is an opposed application for summary judgment by the first plaintiff against the first, second, and fourth defendants regarding claims one and two for the payment of R3 325 441.97 and R505 593.94. The second plaintiff seeks summary judgment against the first and second defendants for claim four for the payment of R32 736.84.

[2] 	On the day of the application hearing, summary judgment was granted against the first and second defendants for claim two. The first plaintiff’s second claim against the fourth defendant proceeded opposed.

[3] 	The first claim is based on the first defendant’s breach of an overdraft facility for which debt the second and fourth defendants signed suretyship and guarantees. The second claim is the first defendant’s breach of a business term loan for which the second and fourth defendants signed suretyship and guarantees. The fourth claim is the first defendant’s breach of a fleet management agreement for which the second defendant signed a suretyship in favour of the second plaintiff.

[4] 	The fourth defendant pleaded specially that, as a trust, it was not a legal persona, and all its trustees must be joined when an action is instituted against it. In its plea, it objected to the non-joinder of the trustees in their official capacities. Consequently, summary judgment could not be granted against it.

[5] 	The defendants pleaded against the first claim that Cara’s Butchery CC would have paid the monthly reduction payments of the overdraft in terms of its agreement with Dela Casa Trading (Pty) Ltd. This agreement was ceded to the first plaintiff to allow it to receive and collect all payments Cara’s Butchery was obliged to pay in terms of the agreement. The overdraft facilities expired on 10 November 2022, when they were to be reviewed. The facility was cancelled without any material deterioration in the first defendant’s financial position or default and review. The first defendant did not breach the overdraft agreement, and none of the defendants were indebted to the first plaintiff as no amount was due or payable under the overdraft facility until the facility is reviewed. No notice was sent to the first defendant, prior to the expiry date of the overdraft facility, requesting it to remedy any breach within a certain period.

[6] 	The fourth defendant denied that its duly authorised representative signed the guarantee because only two of the three trustees signed a resolution on its behalf. The resolution was, therefore, null and void, nullifying the guarantee on behalf of the fourth respondent. 

[7] 	As against the second claim, the first and second defendants did not disclose a defence. The fourth respondent pleaded that it was not properly before the court as its trustees were not cited. As against the fourth claim, the first and second defendants pleaded that all amounts due to the second plaintiff in terms of the fleet management agreement were settled.

[8] 	The defendants denied that the deponent of the founding affidavit had any authority to act on behalf of the second applicant since she failed to allege any position she held with the second plaintiff or present a resolution authorising her to act on its behalf. The lack of authority was fatal to the second plaintiff’s claim.

[9] 	In response to the defendants’ responses to the first claim, the first applicant contended that the trust’s duly authorised representatives signed the Omnibus Guarantee, as shown by the trustees' resolution, which accompanied the guarantee. There was no obligation on the first plaintiff to review the overdraft facilities. In any event, the overdraft facilities were payable on demand. The first defendant made a repayment proposal through its accountants, which could not have been made if the amount had not been due and payable. The fourth defendant’s denial of the indebtedness with respect to the second claim constituted a bare denial and did not raise an issue fit for trial.

[10] 	It was contended on behalf of the second plaintiff concerning the fourth claim that the closure of the account did not mean that the amount had been paid. The account could have been revoked or closed due to non-payment. The second plaintiff’s claim was still due and payable as it had not been paid. 

[11] 	The Summary judgment procedure assists a plaintiff in a case where a defendant, who cannot set up a bona fide defence or raise against the plaintiff’s case an issue that ought to be tried, enters appearance merely to delay the granting of the plaintiff’s rights. The procedure is not intended to shut out a defendant who can show that there is a triable issue applicable to the claim as a whole from laying his defence before the court.

[12] 	In Thorpe and Others v Trittenwein and Another 2007 (2) SCA 172 (SCA), the main issue was whether the signature of a single trustee, in the absence of the written authority of the other trustees, would satisfy the requirements of s 2(1) of the Alienation of Land Act and, if not, whether the lack of written authority could subsequently be ratified in writing by the other trustees. It was held that in the absence of a contrary provision in the trust deed, the trustees had to act jointly. The trustees could authorize someone to act on their behalf, and such a person could be one of the trustees. The trust could not be bound by the assent of a single trustee in the absence of the joint decision of the co-trustees (or the majority if that is all the trust deed requires).  

[13] 	In the present case, on 26 July 2019, when the Omnibus Guarantee was signed, the fourth respondent had three trustees, of which one or two signed the guarantee. It is not clear what the trust deed required. In these circumstances, it is apparent that the fourth respondent has a triable issue with respect to claim two.

[14] 	Paragraph 10.2 of the terms and conditions of the overdraft facilities provides that the facilities are repayable on demand and if there is a default, the bank may:

“10.2.1 	review the terms and conditions applicable to the facilities; and/or
10.2.2 	increase the rate of interest charged; or
10.2.3 	terminate the facility by giving you written notice requesting the repayment of all amounts owing to us:
10.2.3.1 	immediately; or
10.2.3.2 	on the date stated in the notice.” 

[15] 	The first applicant did not comply with this clause but maintained that it was not obliged to review the overdraft facilities and that the first defendant did not repay the overdraft facilities on demand. It is clear that summary judgment cannot be granted in relation to claim 1. The defendants base their opposition to the fourth claim on their having settled the claim and the second plaintiff’s email to them that the account had been closed. In these circumstances, it would not be proper to shut out the defendants from laying their defence before court to show that there is a triable issue applicable to the claim as a whole. 

[16]	The following order issues:

ORDER:
1.	Summary judgment against the 1st, 2nd and 4th defendants with respect to claims 1 and 4, and against the 4th defendant with respect to claim 2, is dismissed with costs.

2.	Summary judgment against the 1st and 2nd defendants with respect to claim 2 is granted with costs. 

MHLAMBI, J

On behalf of Plaintiff:   J Els			      
Instructed by:               Phatsoane Henney
                                    35 Markgraaf Street
                                    Westdene
                                    Bloemfontein

On behalf of the Defendant:   GSJ Van Rensburg  
Instructed by:	               FS Law Inc.
                                        	    5 Barnes Street
                                               Westdene
                                               Bloemfontein