HBZ LBank Limited v Mukudam's General Enterprises and Others (32628/2019) [2020] ZAGPPHC 122 (3 March 2020)

IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG DIVISION

PRETORIA

(1) REPORTABLE: YES/NO

(2) OF INTEREST TO OTHER JUDGES: YES/NO

(3) REVISED

CASE NO: 32628/2019

DATE: 2020-02-03

In the matter between

HBZ BANK LIMITED

Plaintiff

and

MUKADAM'S GENERAL ENTERPRISES AND TWO OTHERS

Defendant

JUDGMENT

WANLESS, AJ:

INTRODUCTION

[1] The plaintiff is HBZ BANK LIMITED, a public company with limited liability, registered in terms of the Companies Act, Act 61 of 1973, read with item 2 of schedule 5 of the Companies Act 71 of 2008, having its principal place of business at 135 Jan Hofmeyr Road, Westville, Durban, Kwazulu-Natal and a branch office at 195 Sixth Avenue, Laudium Plaza, Laudium, Pretoria .[1]

[2] The first defendant is MUKADAM'S GENERAL ENTERPRISES CC, a duly registered close corporation registered in terms of the Close Corporations Act 69 of 1984. [2]

[3] The second defendant is ZUBEIDA MUKADAM, an adult female .[3]

[4] The third defendant is AKBAR ABDUL RAHIMAN MUKADAM.[4]

[5] This is an opposed application for summary judgment. The plaintiff instituted an action against the defendants for payment of money, which the plaintiff alleges is due to it, by the defendants, in terms of loans extended to the first defendant by the plaintiff and for which the second and third defendants furnished security. It also seeks an order declaring immovable property executable. As the immovable property is owned by the first defendant, which is clearly a juristic entity, Rule 46A does not apply.

[3] The plaintiff applied for summary judgment and the defendants have opposed same. It is common cause that the application falls to be decided in terms of rule 32 as it was prior to the amendments to that rule on the 1st of July 2019. The defendants raised no less than seven defences (the second and third defendants as sureties, also raising those defences which the first defendant is entitled to raise). I turn briefly now to deal with the applicable principles in respect of the application for summary judgment and more particularly in the present matter.

APPLICABLE PRINCIPLES

[6] An affidavit resisting summary judgment is required to disclose fully the nature and grounds of, and the material facts relied upon by the defendants, for the defence.[5] A defendant is not required to deal exhaustively with the facts and the evidence, provided he discloses his defence and the material

facts upon which it is based, with sufficient particularity to enable the Court to find that he has a bona fide defence.[6] The defendant need not prove its defence. It need only set out facts which, if proved at trial, would constitute an answer to the

plaintiff's claim.[7] The court turns now out to deal with those various defences.

THE LOCUS STANDI DEFENCE

[7] In raising this defence, it 1s clear that the defendants assume that there is a cession in securitatem debiti which the plaintiff signed in favour of its holding company and further, the defendants assume that the terms of that cession are such that the plaintiff with have Iost locus standi in favour of the holding company.[8] It is clear, when examining the affidavit in opposition to summary judgment, that the defendants have no proof 1n respect of this

defence. This is mere conjecture or speculation by the defendants.[9] It is true, as the plaintiffs submit, that speculation alone does not allow one to successfully resist summary judgment.[10]

THE SUSPENSIVE CONDITIONS DEFENCE

[8] This defence is dealt with briefly in paragraphs 18 and 19 of the defendants' affidavit In opposition to summary judgment.[11] As correctly submitted by the plaintiff this is not a defence supported by any facts. Rather, it amounts to nothing more than a

complaint in respect of the pleadings by the defendants. In this regard the plaintiff has averred that there has been compliance with all the material terms of the agreement.[12]

[9] Not only have the defendants failed to set out the terms of the agreement which they aver are suspensive conditions but there is nothing In the affidavit opposing summary judgment to support the claim that these conditions were either not fulfilled or, where in favour of the plaintiff, waived.

THE "NO AFFIDAVIT" DEFENCE

[10] This is, in the true sense, a technical defence, which seeks to avoid the summary judgment application entirely, by submitting that the affidavit in support of summary judgment has not been properly commissioned. The complaint, in summary, is that:-

1. The commissioning details had been omitted;

2. the details of the Commissioner of Oath do not appear in the affidavit:

3. the South African Police Services did not sign the third page of the affidavit; and

4. the SAPS stamp is illegible and may be the stamp used for certifying copies of documents, rather than commissioning affidavits.[13]

As pointed out by the plaintiff, it is clear that on the copy of the said affidavit in the court file, the police official did in fact complete his or her details on the third page and also signed that page. Ironically, as also pointed out by the plaintiff, the affidavit opposing summary judgment has been deposed to in precisely the same manner as the affidavit in support of summary judgment. Also, the second defendant's confirmatory affidavit contains even less detail pertaining to the Commissioner of Oaths.

[11] It is trite that this Court has a discretion to condone non­ compliance with regulation 4 of the regulations governing the Administering of an Oath or Affirmation published under GN R1258 in Government Gazette 3619 of 21 July 1972. Having regard to the aforegoing this Court, in the exercise of that discretion, finds that all of the affidavits in this application are probably before it.

THE CERTIFICATE DEFENCE

[12] The defendants argue that if leave to defend is granted they will challenge the amount claimed by the plaintiff. As correctly submitted by the plaintiff that is, when looked at in isolation, no defence to this application for summary judgment. The defendants correctly concede that the agreements relied upon by the plaintiff contained certificate clauses entitling the plaintiff to rely on a certificate of balance to prove the indebtedness to it.[14] Certificates of balance were produced by the plaintiff and attached to the particulars of claim. The defendants dispute the correctness

of the certificates but they do so without reference to any facts. Where quantum is entitled to be proved by way of a certificate of balance, the defendants bear an evidential onus to prove that the certificates are incorrect.[15]

I may add, at this stage, that this is clearly the position, regardless of the fact that (and this is trite) the certificates of balance are only prima facie proof.

It is clear from the contents of the affidavit filed in opposition to the plaintiff's application for summary judgment that the defendants have failed to do so. In other words, they have failed to discharge the evidential onus which falls upon them in this regard.

THE ALLEGED LACK OF PERSONAL KNOWLEDGE

[13] The plaintiff notes that, despite the plaintiff's area manager having stated that he had under his control the books, records, accounts and documents relevant to the claims and that, having regard to those sources, he had acquired knowledge of the claims and thus verified the cause of action the defendants still contend that the deponent lacked personal knowledge to satisfy this provision of rule 32.

As correctly stated and submitted on behalf of the plaintiff, this defence must fail, particularly in the face of a certificate of balance as dealt with earlier in this judgment.

The deponent has shown the basis upon which he can claim to have knowledge sufficient to swear positively to the facts and to verify the cause of action.[16]

THE EXCEPTION DEFENCE

[14] The defendants submit that in light of the fact that the plaintiff has failed to identify the "authorised employee" of the plaintiff who entered into the various agreements the plaintiff's particulars of claim are, in terms of rule 18, excipiable. This defence clearly has no merit. Had the plaintiff failed to allege that it was represented by an employee, duly

authorised thereto, then the defence would have had some possibility of success. However, this is not the case. Countless particulars of claims in actions similar to the present make precisely the same averment. The defendants in those matters and, in the present matter, are quite capable of pleading thereto. The particulars of claim can never, on that basis, be excipiable and this defence must fail.

THE ALLEGED INCORRECT AGREEMENT

[15] With regard to this defence the defendants have submitted that the additional facility document attached to the particulars of claim is not the correct document.[17] The plaintiff correctly submits that even if the defendants are correct in this regard the plaintiff's cause of action relies on the fact that the mortgage bond and not the additional facility secures the indebtedness of the defendants to the plaintiff. Furthermore, the defendants have failed to make any averments that would support the fact that, inter alia. the facility was in fact renewed; a new letter was issued and why this provides a defence.

CONCLUSION

[16] It is clear from the above that the defendants have failed to show that they have a bona fide defence to the plaintiff's claim and that the appearance to defend the action has not been entered solely for the purposes of delay. None of the alleged defences comply with the applicable principles as set out above. Furthermore, a number of those alleged defences are purely technical in nature.[18] Importantly, the defendants have failed to raise any triable issues which would have allowed this Court, in its discretion, to refuse the plaintiff's application for summary judgment.

COSTS

[17] The plaintiff, both in its particulars of claim and its draft order, seeks a cost order against all three defendants on the scale of attorney and own client. Further, the main agreement makes provision therefor. In the respective deeds of suretyship the scale of costs is also that of attorney and own client. No argument was placed before this court as to why this Court should, in its discretion, deviate from the scale of costs as provided for in the aforesaid documents.

ORDER

[18] In the premises this Court makes the following order, namely:-

Summary judgment is granted in favour of the plaintiff against the first, second and third defendants, jointly and severally, the one paying the other to be absolved, for:

(a) payment of the sum of R3 365 887.72;

(b) interest on the sum of R3 000 000.00 at the rate of 10.5% plus 2.5% per annum, calculated from the 16th of April 2019 to date of final payment;

(c) interest on the sum of R65 887.72 at the rate of 13% per annum from the 16th of April 2019 to date of final payment;

(d) payment of the sum of R512 000.00;

(e) interest on the sum of R512 000 at the rate of 10.5% plus 2.5% per annum from the 16th of April 2019 to date of final payment;

(f) costs of suit on the scale of attorney and own client;

(g) the property described as ERF 109 SUNDERLAND RIDGE, EXTENSION 1 TOWNSHIP, REGISTRATION DIVISION JR, PROVINCE OF GAUT ENG, MEASURING 2990 SQUARE METERS, HELD BY DEED OF TRANSFER NO. T40424/2005 ALSO KNOWN AS 149 VAN TONDER STREET, SUNDERLAND RIDGE, TSHWANE, registered in the name of the first defendant, is declared specially executable.

I hand down that order.

WANLESS, AJ

DATE: 3/3/2020

[1] Subparagraphs 1 1 and 1 2 of the particulars of claim.

[2] Paragraph 2 of the particulars of claim.

[3] Paragraph 3 of the particulars of claim

[4] Paragraph4 of the particulars of claim

[5] Visser and Another v Kotze [2013] JOL29985 (SCA) para 11.

[6] Visser (supra) at paragraph 11.

[7] Visser (supra) at paragraph 11

[8] Page 119 paragraphs 9 -16

[9] Caswell v Powell Duffryn Associated Collieries Ltd 1939 3 ALL ER722 (HL) approved in Moraitis Investments v Montie Dairy 2017 (5)

SA 50B(SCA) 34.

[10] Breytenbach v Fiat SA (EDMS)BPK 1976 (2) SA 226 (TPD) 229A

[11] Pages 121 and 122 of the application papers.

[12] Paragraph 7 of the particulars of claim at page 9 of the application papers.

[13] The subparagraphs 53 and 54 of the opposing affidavit to summary Judgment at pages 113 to 115 of the application papers

[14] Paragraph 21 of the affidavit opposing summary judgment at page 123 of the application papers.

[15] Senekal v Trust Bank of Africa Limited 1978 (3) SA 375 (AD) at 382H-383A.

[16] ABSA Bank Ltd v Scarlet Dawn Trading 135 CC and Others [2016] ZA WCHC 174 at paragraphs [30] and [31

[17]Sub-paragraph 5.8 of the affidavit opposing summary judgment at pages 116 to 118 of the application papers.

[18] ABSA Bank v Botha NO 2013 (5) SA 563 (GMP) para [8] ex parte Du Tait 1962 (1) SA 445 (ECO) 445C-H