Firstrand Bank v O2 Boerdery (Pty) Ltd and Others (2399/2021) [2024] ZANCHC 116 (2 December 2024)

IN THE HIGH COURT OF SOUTH AFRICA

NORTHERN CAPE DIVISION, KIMBERLEY

Case No:

2399/2021

In the matter between:

FIRSTRAND BANK LIMITED Applicant/Plaintiff

and

02 BOERDERY (PTY) LTD

First Respondent/Defendant

HANS KANON BOERDERY CC Second Respondent/Defendant

JOHANNES HENDRIK SNYMAN Third Respondent/Defendant

JOHANNES HENDRIK SNYMAN Fourth Respondent/Defendant

Heard on: 22/11/2024

Delivered on: 02/12/2024

Summary: Application: Summary Judgment. Rule 32(2) Uniform Rules of Court. Section 14 Prescription Act 68 of 1969 – whether defendant has bona fide defence? Whether defendant entered appearance to defend for purposes of delay. Prescription interrupted by payments.

ORDER

In the result the following order is made:

1. The application for summary judgment is dismissed with costs.

2. The second defendant is granted leave to defend the action.

3. Further pleadings and papers are to be filed and served as if notice of intention to defend had been entered on the date of this order.

JUDGMENT

MAMOSEBO ADJP

[1] The plaintiff, FirstRand Bank Limited, brought this application for summary judgment of payment in the amount of R1 127 236.33, interest on the said amount at the rate of prime plus 3% per annum calculated daily and compounded monthly in arrears from 19 October 2021 to date of payment and a punitive cost order. Only Hans Kanon Boerdery CC, the second defendant, is opposing the application and has filed a notice of intention to oppose and be granted leave to defend the action.

[2] The requirements of Rule 32(2) of the Uniform Rules of Court are:

(a) That the affidavit should be made by the plaintiff [him/herself] or by any other person who can swear positively to the facts;

(b) That it must be an affidavit verifying the cause of action and the amount, if any, claimed; and

(c) That it must contain a statement by the deponent that in his/her opinion there is no bona fide defence to the action and that the notice of intention to defend has been delivered solely for the purpose of delay.

[3] The issue of condonation by plaintiff does not arise. However, the defendant pleaded prescription as a special defence. Plaintiff did not file a replication to this special plea. The law is settled that the plaintiff is not entitled to present in his verifying affidavit evidence other than that provided for in the rule. The defence upon which the defendant relies is that a period of more than three years had elapsed when summons was issued. Plaintiff’s version is that summons was issued and served upon the principal debtor and the defendant on 30 November 2021, however, when it applied for default judgment was notified by the registrar on 8 August 2023 that the summons was stale. Summons was re-issued on 15 September 2023. The defendant filed its plea on 11 December 2023.

[4] Mr Botha, for the plaintiff, argued that the payments made by the defendant after the due date constituted tacit acknowledgments of liability as contemplated in s 14 of the Prescription Act. However, and as emphasised by the Supreme Court of Appeal (SCA) in Investec Bank Ltd v Erf 436 Elandspoort (Pty) Ltd and Others[1] the words and conduct of a defendant must be viewed holistically and in the proper context. Viewed in isolation, the payments made are not of assistance.

[5] The SCA in Maharaj v Barclays National Bank Ltd[2] made these insightful remarks pertaining to what is expected of the defendant seeking to oppose an application for summary judgment:

‘Accordingly, one of the ways in which a defendant may successfully oppose a claim for summary judgment is by satisfying the Court by affidavit that he has a bona fide defence to the claim. Where the defence is based upon facts, in the sense that material facts alleged by the plaintiff in his summons, or combined summons, are disputed or new facts are alleged constituting a defence, the Court does not attempt to decide these issues or to determine whether or not there is a balance of probabilities in favour of the one party or the other. All that the Court enquires into is: (a) whether the defendant has 'fully' disclosed the nature and grounds of his defence and the material facts upon which it is founded, and (b) 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 both bona fide and good in law. If satisfied on these matters the Court must refuse summary judgment, either wholly or in part, as the case may be.’

See also in this regard Breytenbach v Fiat SA (Edms) Bpk 1976 (2) SA 226 (T) at 228B – H

[6] The Court retains a discretion to grant or refuse summary judgment. The SCA has succinctly guided on the exercise of this discretion in Collet v FirstRand Bank[3] in these terms:

‘[18] Often debt-enforcement proceedings take place by way of a simple summons followed by an application for summary judgment. As was said in Joob Joob Investments (Pty) Ltd v Stocks Mavundla Zek Joint Venture —

'summary judgment procedure was not intended to shut (a defendant) out from defending, unless it was very clear indeed that he had no case in the action. It was intended to prevent sham defences from defeating the rights of parties by delay, and at the same time causing great loss to plaintiffs who were endeavouring to enforce their rights.'

Overindebtedness is not a defence on the merits. However, because of its extraordinary and stringent nature, a court has an overriding discretion to refuse an application for summary judgment. It would be proper for a defendant to raise termination of the debt review by reason of the credit provider's failure to participate or its bad faith in participating when application for summary judgment is made. These issues may be raised, not as a defence to the claim, but as a request to the court not to grant summary judgment in the exercise of its overriding discretion. Of course, sufficient information on which the request for a resumption of the debt review is based must be placed before the court.’

[7] I am satisfied that the defendant has raised a bona fide defence and in the exercise of my discretion will not shut the door to the defendant to enter the case. It follows that the application for summary judgment stands to fail.

[8] In the result the following order is made:

2. The defendant, Hans Kanon Boerdery CC, is granted leave to defend the action.

_____________________

MC MAMOSEBO

JUDGE OF THE HIGH COURT

NORTHERN CAPE DIVISION

For the applicant/plaintiff

Adv. A Botha

Instructed by:

De Klerk & Van Gend Inc

c/o Van den Heever Attorneys Inc

For the second defendant/respondent: Adv. JL Olivier

Instructed by:

Japie VanZyl Attorneys Inc

c/o Van de Wall Inc

[1] Investec Bank Ltd v Erf 436 Elandspoort (Pty) Ltd and Others 2021 (1) SA 28 (SCA) para 32

[2] Maharaj v Barclays National Bank Ltd 1976 (1) SA 418 (A) 426A – D

[3] Collet v FirstRand Bank 2011 (4) SA 508 (SCA) para 18