Business Partners Limited v K201426876(South Africa ) (PTY) LTD and Others (5461/18) [2018] ZAGPPHC 670 (13 September 2018)

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

(GAUTENG DIVISION, PRETORIA)

CASE NO: 5461/18

NOT REPORATBLE

NOT OF INTEREST TO OTHER JUDGES

REVISED

DATE:13 SEPTEMBER 2018

In the matter between:

BUSINESS PARTNERS LIMITED APPLICANT/PLAINTIFF

And

K2014268076 (SOUTH AFRICA} (PTY) LTD

Registration Number [2…]

FIRST RESPONDENT/ DEFENDANT

JOSEPH NONG

Identity Number [7…]

SECOND RESPONDENT/ DEFENDANT

TSELANE SELINAH NONG

Identity Number [8…]

THIRD RESPONDENT/ DEFENDANT

JUDGMENT

COLLIS J:

INTRODUCTION

[1] This is an opposed application for Summary Judgment.

BACKGROUND

[2] The Plaintiff's cause of action is based on a written loan agreement entered into between the Plaintiff and the First Defendant on 17 August 2016, in terms of which the Plaintiff lent and advanced money to the First Defendant.[1] The relief claimed as against the First Defendant is for payment of the outstanding amount emanating from the loan agreement. In respect of the remainder of the Defendants the relief claimed is premised on duly executed deeds of suretyship signed by the defendants accepting responsibility for any obligation due to the Plaintiff by the First Defendant.[2]

[3] By reason of the failure by the First Defendant to pay the instalments due in terms of the said loan agreement on their due dates and by virtue of the said deeds of suretyship the balance outstanding in respect of the said loan agreement has become due, owing and payable by the Second and Third Defendants, jointly and severally with the First Defendant, the one paying the other to be absolved. The First Defendant is indebted to the Plaintiff in the amount of R 467 132.96 in respect of the loan agreement.[3]

[4] Pursuant to the issuing of the summons, the summons was served on the defendants on 9 and 19th February 2018 respectively. The First, Second and Third Defendants thereafter entered an appearance to defend. The Plaintiff had until 12 March 2018 to apply for summary judgment, but only however served their application on 29 March 2018, and simultaneously therewith had filed a substantive application for condonation in terms of Uniform Rule 27.

[5] In relation to the condonation application in essence the Plaintiff sets out that prior to the launching of the present application the parties were engaging in without prejudice settlement negotiations with one another and which negotiations ultimately failed on 13 March 2018. Furthermore, that during such negotiations that the Defendants condoned any late application for summary judgment, should the matter not become settled. As there was no challenge to the substantive condonation application and the reasons traversed therein, the court is satisfied to condone the late launching of the summary judgment application.

[6] In the matter Breitenbach v Fiat SA (Edms) BPK at 227F-G, the Court held:

"To avoid summary judgment the defendant is required in terms of Rule 32(3)

(b) of the High Court Rules to set out in an affidavit, facts which if proved at the trial, will constitute an answer to the plaintiffs claim. The rule also requires that the defendant satisfy the court that the defence is bona fide. This means that the defendant must swear to a defence, valid in law, in a manner which is not seriously unconvincing. Finally, it is required of the defendant that he discloses

fully the nature and grounds of the defence and the material facts relied upon therefore. This means that the statement of material facts must be sufficiently full to persuade the court that what the defendant has alleged, if it is proved at trial, will constitute a defence to the plaintiff's claim."

[7] In First National Bank of Sa Ltd v Myburg and Another 2002 (4) SA 176 (C) at 177D-F the Court held:

"The Court will grant summary judgment only where the plaintiff has an unanswerable case. If it has the slightest doubt, the Court will not grant summary judgment."

[8] The defendants in opposition to the summary judgment had raised the following defences which it persisted with at the hearing of the application:

8.1. The first being that the First Defendant's current monthly account with the Plaintiff was paid up to date as at 14 February 2018 and to employ the acceleration clause as per the agreement would offend against all principles of acceptable public policy.

8.2. Secondly, that during October 2017, a compromised was reached with representative of the Plaintiff, in terms of which it was agreed that should the First Defendant's account be paid up to date by latest March 2018, no enforcement of the agreement was to take place.

8.3. Lastly, the Defendants alleges that the Plaintiff at all material times was aware how its business performed, and at all material times had access to any information which they required. It is therefore as they contend, in bad faith that the Plaintiff instituted the present proceedings against it, where their account is up to date.[4]

Payment of arrear amount

[9] Paragraph 3 of the resisting affidavit the Third Defendant stipulates that " .... .as I state the first respondent has repaid all the monthly instalments due and there is no amounts outstanding in arrears."

[10] Paragraph 12 of the same affidavit it is stated: "Accordingly, the first respondent has made repayments in the amount of R195 393.51 of the loan amount of R 515 962 in a period of less than 2 years. That is as far as the outstanding arrears are concerned, the first respondent has this far, duly paid all such amounts due to the applicant."

[11] In paragraph 11 they further state as follows: 'As at the time of this application for summary judgment was initiated, the loan arrear account had in fact been paid and up to date. For this, I refer to the request directed at the plaintiff, that it withdraw the action. A copy of the request dated 14 February 2018, is attached hereto as "JN2".'

[12] Paragraph 9 of the Combined Summons is quoted hereunder for ease of reference:

"The First Defendant breached the terms of the said loan agreement in that it failed to pay the instalments due in terms thereof on the due dates for payment and in the circumstances by virtue of the provisions of the said loan agreement, the balance of R 467 132.96 as at the 25th December 2017 together with interest thereon at the rate of 10.25% per annum ( prime lending rate of interest prevailing), linked to prime and calculated from the 25th December 2017 to date of payment, has become due, owing and payable by the First Defendant to the Plaintiff."

[13] On the defendants own admission, they were in arrears with their instalments and as such have failed to pay the instalments due on dates as per the loan agreement. The Defendants however contend that an agreement was reached permitting them to pay up all outstanding arrears in terms of the loan agreement and that in fact same was attended to, prior to service of the summons on them.

[14] The summons in question makes no reference to any agreement having been reached between the Plaintiff and the Defendants in respect of payment of any arrear amounts due in terms of the loan agreement and further it makes no reference that the Defendants were given an indulgence until 31 March 2018 settle any arrear amounts. In fact the summons is patently silent in this respect.

[15] A court in considering a summary judgment application is required to assess as to whether a defendant has disclosed the nature and the grounds of his or her defence and whether on the facts so disclosed the Defendant appears to have as to either the whole or part of the claim, a defence which is bona fide and good in law.[5]

[16] In the matter Gulf Steel (Pty) Ltd v Rack-Rite Bop (Pty) Ltd and Another 1998 (1) SA 679 (0) at 6831-J the Court held:

"In view of the nature of the remedy the Court must be satisfied that a plaintiff who seeks summary judgment has established its claim clearly on the papers and the defendants have failed to set up a bona fide defence as required in terms of the Rules of Court. There are accordingly two basic requirements that

the plaintiff must meet, namely a clear claim and pleadings which are technically correct before the Court. If either of these requirements is not met, the Court is obliged to refuse summary judgment."

[17] The defence of payment of the arrears amount raised by the Defendants, in my view is dispositive of the requirements set out in terms of Rule 32(3)(b) in that it will if proved at trial constitute an answer to the Plaintiff's claim.

ORDER

[18] Consequently, and for the reasons alluded to above, the following order is made:

18.1 The application for condonation is granted.

18.2. The application for summary judgment is refused.

18.3 Leave to defend is granted to the Defendants, with

18.3 costs in the cause.

C. J. COLLIS

JUDGE GAUTENG DIVISION PRETORIA

APPEARANCES:

FOR APPLICANT

G. Jacobs

INSTRUCTED BY

Morris Pokroy Attorney

FOR RESPONDENTS:

V.P. Ngutshana

INSTRUCTED BY

Motswasele Mogotsi Attorneys

DATE OF HEARING:

23 May 2018

DATE OF JUDGMENT:

13 September 2018

[1] Annexure "BP1" Particulars of Claim pages 12-37

[2] The Second and Third Defendant's Deeds of Suretyship Particulars of Claim pages 39-56

[3] Certificate of Balance pg 38 read with Clause 25 pg 30

[4] Answering Affidavit pg77 & 78

[5] Maharaj v Barclays National Bank Ltd 1976 (1) SA 418 (A) at 426