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IN THE HIGH COURT OF SOUTH AFRICA

(GAUTENG DIVISION, PRETORIA)

CASE NUMBER: 86616/2016

18/5/2017

In the matter between:

THE STANDARD BANK OF SOUTH AFRICA                                                    PLAINTIFF

and

JAN NICOLAAS ROSSOUW VAN REENEN                                      THIRD DEFENDANT

 

REASONS FOR JUDGMENT - RULE 49

1. The Third Defendant in this matter requests reasons for the order made on 27 March 2017 in terms whereof summary judgment was granted against the Defendant.

2. The Plaintiff obtained summary judgment on the basis of the principle debtors (the First Defendant) indebtedness to Plaintiff and the Third Defendant having bound himself as surety and co-principle debtor to Plaintiff for the compliance by First Defendant.

3. In its Notice of Motion the Plaintiff claims from First, Second and Third Defendants, jointly and severally, the one paying the other to be absolved:

CLAIM 1:

(a)  Payment of the amount of R140,422.55 (One Hundred and Forty Thousand Four Hundred and Twenty Two Rand and Fifty Five cents);

(b)  Interest on the amount of R140,422.55 (One Hundred and Forty Thousand Four Hundred and Twenty Two Rand and Fifty Five cents) at a rate of 14.7% per annum, calculated daily and compounded monthly in arrears, from 26 September 2016 to date of final payment, both dates inclusive;

(c)  Costs of suit, to be taxed on a scale as between attorney and client.

CLAIM 2:

(a)  Payment of the amount of R11,823.98 (Eleven Thousand Eight Hundred and Twenty Three Rand and Ninety Eight cents);

(b)  Interest on the amount of R11,823.98 (Eleven Thousand Eight Hundred and Twenty Three Rand and Ninety Eight cents) at a rate of 18.75% per annum, calculated daily and compounded monthly in arrears, from 26 September 2016 to date of final payment, both dates inclusive;

(c)  Costs of suit, to be taxed on a scale as between attorney and client.

4. This matter was previously postponed sine die from 27 February 2017 to attempt to settle the matter.

 

THE ISSUES:

5. The Application for summary judgement was opposed by the Third Defendant. Default judgment was obtained against First and Second Defendant.

 

THE ISSUES IN DISPUTE:

6. The issues in dispute can be enumerated as follows:

6.1 There was a typographical error in the prayers in the Particulars of Claim regarding claim 1 as well as the prayers in the Application for Summary Judgment.

6.2 Third Defendant dispute the fact that Simbini Jabile has personal knowledge of the facts required by the provisions of Rule 32(2).

6.3 Third Defendant submitted that he do have a bona fide defence to the action.

 

THE TYPOGRAPH ICAL ERROR IN THE PRAYERS IN THE PARTICULARS OF CLAIM AND THE PRAYERS IN THE SUMMARY JUDGMENT:

7. In the Particulars of Claim in the combined summons it is evident that the Plaintiff claimed the amount of R410,422.55 together with interest from the Defendants (claim 1).

Vida: para 32.1

8. It is also clear from the Particulars of Claim including the annexures attached thereto that the amount claimed in count 1 is R410,422.55 and not R140,422.55.

9. In my view there was a typographical error in the Particulars of Claim as well as the prayers in the Application for Summary Judgment. The first two numbers of the judgment amount had been swapped to read R140,422.55 instead of R410,422.55.

10. Technical correctness as a pre-requisite is unjustified and if papers are not correct due to some obvious or manifest error causing no prejudice to the Defendant and if there is substantial complies with the rules it is difficult to justify an approach which refused summary judgment.

See:    Standard Bank of South Africa Limited v Roestoff 2004 (1) SA 492 (W)

Wonder Flooring v Northmead Development Corporation Limited 1997 (1) SA 476 (B)

 

THE REQUIREMENTS OF RULE 32(21:

11. Third Respondent dispute the fact that Zimbini Jabile has personal knowledge of the facts required by the provisions of Rule 32(2).

12. It was decided in Maharaj v Barclays National Bank Ltd 1976 (1) SA 418 (A) 423A - 4240 that:

"Undue formalism in procedural matters is always to be eschewed and must give way to commercial pragmatism. At the end of the day whether or not to grant summary judgment is a fact based enquiry. Many summary judgments applications are brought by financial institutions and large corporations. Firsthand knowledge of every fact cannot and should not be required of the official who deposes to the affidavit on behalf of such financial institution and large corporations. To insist on first-hand knowledge if not consistent with the principals espoused in Maharaj. It would be impossible and commercially inconvenient to require every single person involved in a transaction in question, to depose to an affidavit"

13. In clause 13 of the Suretyship it is recorded that:

''A certificate signed by any of the Bank's managers, whose appointment need not be proved, will on its mere production be sufficient proof of any amount due and/or owing by me/us in terms of this suretyship unless the contrary is proved. "

14. In my view the Defendant's point in limine in this regard has no merit and should be rejected.

 

THE DEFENDANT'S BONE FIDE DEFENCE:

15. The Defendant raise a defence that when he appended his signature to the Suretyship (Annexure "H") to the Particulars of Claim, it was in blank and not informed of the fact that:

15.1 The Principal Debtor (First Defendant) was also indebted to the Plaintiff for an overdraft facility.

15.2 That he would be liable for that debt, in other words, beyond the credit card debt that he was prepared to sign surety for (claim 2).

16. During 2005 the Plaintiff afforded the First Defendant a cheque account facility which facility was limited to a debt amount of R350,000.00. First Defendant breached the agreement and failed to comply with the terms thereof by allowing the overdraft of the account over and above the maximum amount of R350,000.00 (claim 1).

17. During July 2016 the Plaintiff addressed a notice in terms of Section 129 and 130 of the National Credit Act demanding payment.

18. During January 2007 the Plaintiff afforded the First Defendant the credit card facility to the maximum debit limit of R30,000.00. First Defendant failed to comply with the obligations in terms of the agreement by failing to make payment of the minimum monthly amount (claim 2).

19. During March 2013 the Second and Third Defendants, both acting in their respective personal capacities, concluded a written deed or surety. In terms of the deed of surety the Second and Third Defendants bound themselves as unlimited surety and co-principle debtor to Plaintiff for the payment of any sum or sums of money which First Defendant owes or may owe to the Plaintiff from whatever cause arising and the due fulfillment of all obligations of the principle debtor to Plaintiff, irrespective of the debt.

20. It is common knowledge that a person who signs a contractual document thereby signifies assent to the contents of the document, and if these subsequently tum out unfavourably there is no one to blame but him or herself.

21. In National and Grindlavs Bank Ltd v Yelverton 1972 (4) SA 114 (R) Davies J applied the caveat subsriptor principle to a contract signed in blank, that is a printed form containing blank spaces allegedly not filled in before signature holding that the signatory could escape liability only by raising one of the defences that would have been available if the blank spaces had been filled in - the normal defences available to any signatory.

See also:       George v Fairmead (Pty) Ltd 1958 (2) SA 485 (A)

22. The Defendant did not raise defenses of fraud, illegality, duress, undue influences and iustus error.

23. One of the things clearly required of a defendant by Rule 32(3)(b) is that he set out in his affidavit facts which if proved at the trial, will constitute an answer to the Plaintiffs claim. The sub rule, however, requires that the Court be satisfied that there is a bona fide defence.

24. The defence of the Defendant is averred in a manner which appears to be needlessly bold, vague or sketchy and in my view not a bona fide defence.

25. In my view the Defendant has failed to demonstrate any bona fide defence and that the Plaintiff makes our a proper case for summary judgment to be granted.

 

SIGNED AT PRETORIA ON THIS THE 17^TH DAY OF MAY 2017

 

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J J STRYDOM

ACTING JUDGE OF THE HIGH COURT

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