Firstrand Bank Limited v Selloe and Others (M276/2017) [2019] ZANWHC 32 (14 February 2019)

Firstrand Bank Limited v Selloe and Others (M276/2017) [2019] ZANWHC 32 (14 February 2019)

The applicant failed to establish in its founding affidavit a connection between the 2016 facility agreement and the liability of the first, second, and fifth respondents as sureties. The respondents were no longer members of the principal debtor when the 2016 facility was advanced, and there was no evidence that they signed any suretyship in 2016. The applicant's reliance on the 2014 suretyship agreement in reply was procedurally improper, as the case must be made out in the founding affidavit. Accordingly, the application against the first, second, and fifth respondents must be dismissed. However, the third and fourth respondents, who did not oppose and were members at the relevant...

Citation
[2019] ZANWHC 32
Parties
Applicant: Firstrand Bank Limited; Respondent: April Magase Selloe; Respondent: Barend Johannes van Kasterop; Respondent: Izak Schalk van den Berg; Respondent: John Odirile Lebelela; Respondent: William Henry Kruger
Court
North West High Court, Mafikeng
Jurisdiction
South Africa
Judgment Date
14 February 2019
Case Number
M276/2017
Procedural Posture
Civil Application / Judgment on Opposed Application
Outcome
Application dismissed against first, second, and fifth respondents; judgment granted against third and fourth respondents.
Judges
T Djaje
Legal Topics
Suretyship Liability, Facility Agreement, Default Judgment, Public Policy Defence, Costs Order
Banking and Finance Civil Procedure Suretyship Liability Facility Agreement Default Judgment Public Policy Defence Costs Order

Case Brief

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Parties

Firstrand Bank Limited

Applicant

April Magase Selloe

Respondent

Barend Johannes van Kasterop

Respondent

Izak Schalk van den Berg

Respondent

John Odirile Lebelela

Respondent

William Henry Kruger

Respondent

Procedural Posture

Civil Application / Judgment on Opposed Application

Legal Issues

  1. 1 Whether the applicant established liability of the first, second, and fifth respondents as sureties for the principal debtor under the 2016 facility agreement.
  2. 2 Whether the applicant can rely on the 2014 suretyship agreement to hold respondents liable for debts arising from the 2016 facility.
  3. 3 Whether the respondents were released from their suretyship obligations upon resignation as members of the principal debtor.

Ratio Decidendi

The applicant failed to establish in its founding affidavit a connection between the 2016 facility agreement and the liability of the first, second, and fifth respondents as sureties. The respondents were no longer members of the principal debtor when the 2016 facility was advanced, and there was no evidence that they signed any suretyship in 2016. The applicant's reliance on the 2014 suretyship agreement in reply was procedurally improper, as the case must be made out in the founding affidavit. Accordingly, the application against the first, second, and fifth respondents must be dismissed. However, the third and fourth respondents, who did not oppose and were members at the relevant...

Court Disposition

Application dismissed against first, second, and fifth respondents; judgment granted against third and fourth respondents.

Orders

  • The application against the first, second, and fifth respondents is dismissed.
  • The applicant is ordered to pay costs.