First National Bank Ltd v Philo Films (Pty) Ltd and Another (42697/2020) [2022] ZAGPPHC 377 (27 May 2022)

First National Bank Ltd v Philo Films (Pty) Ltd and Another (42697/2020) [2022] ZAGPPHC 377 (27 May 2022)

The court found that the Facility Agreement between the parties contained clear non-variation and indulgence clauses, which prohibited any amendment or waiver of rights unless reduced to writing and signed by both parties. The extensions and indulgences granted by the Applicant did not constitute a variation of the...

Source-derived case information.

Citation
[2022] ZAGPPHC 377
Parties
Applicant: First National Bank Ltd; Respondent: Philo Films (Pty) Ltd; Respondent: Philo Christopher Pieterse
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
27 May 2022
Case Number
42697/2020
Procedural Posture
Civil Application / Final Judgment
Outcome
Application granted. Judgment in favour of the Applicant against the First and Second Respondents, jointly and severally, with the Second Respondent's liability limited to R3 100 000.00 plus interest. Costs awarded on attorney and own client scale.
Judges
Msimang
Legal Topics
Overdraft Facility, Suretyship Liability, Non Variation Clause, Indulgence Clause, Contract Enforcement
Banking and Finance Commercial and Corporate Overdraft Facility Suretyship Liability Non Variation Clause Indulgence Clause Contract Enforcement

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Parties

First National Bank Ltd

Applicant

Philo Films (Pty) Ltd

Respondent

Philo Christopher Pieterse

Respondent

Procedural Posture

Civil Application / Final Judgment

Legal Issues

  1. 1 Whether the First Respondent is liable for the full amount under the overdraft facility agreement.
  2. 2 Whether the Second Respondent, as surety, is liable to the extent of the suretyship agreement.
  3. 3 Whether extensions and indulgences granted by the Applicant constituted a variation of the Facility Agreement.

Ratio Decidendi

The court found that the Facility Agreement between the parties contained clear non-variation and indulgence clauses, which prohibited any amendment or waiver of rights unless reduced to writing and signed by both parties. The extensions and indulgences granted by the Applicant did not constitute a variation of the contract. The Respondents failed to service the overdraft facility and did not make the required payments despite multiple extensions. The argument that the Covid-19 pandemic excused performance was rejected, as payment was due from the expiry of the facility in May 2017 and the pandemic did not affect the contractual obligations. The Applicant was entitled to judgment for the...

Court Disposition

Application granted. Judgment in favour of the Applicant against the First and Second Respondents, jointly and severally, with the Second Respondent's liability limited to R3 100 000.00 plus interest. Costs awarded on attorney and own client scale.

Orders

  • Condonation for late filing of the Replying Affidavit is granted.
  • Judgment is granted in favour of the Applicant against the First and Second Respondents, jointly and severally, the one paying the other to be absolved, with the Second Respondent's liability limited to R3 100 000.00 plus interest.